(SS) Moua v. Commissioner of Social Security, No. 1:2010cv01549 - Document 15 (E.D. Cal. 2011)

Court Description: ORDER DENYING Plaintiff's Appeal From the Administrative Decision of the Commissioner of Social Security, signed by Magistrate Judge Gary S. Austin on 12/1/2011. CASE CLOSED. (Jessen, A)
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(SS) Moua v. Commissioner of Social Security Doc. 15 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 BENJAMIN MOUA, 11 12 13 14 15 ) ) Plaintiff, ) ) v. ) ) COMMISSIONER OF SOCIAL SECURITY, ) ) Defendant. ) ) _____________________________________ ) 1:10-cv-01549 GSA ORDER REGARDING PLAINTIFF’S SOCIAL SECURITY COMPLAINT 16 17 18 19 BACKGROUND Plaintiff Benjamin Moua (“Plaintiff”) seeks judicial review of a final decision of the 20 Commissioner of Social Security (“Commissioner” or “Defendant”) denying his application for 21 supplemental security income benefits pursuant to Title XVI of the Social Security Act. The 22 matter is currently before the Court on the parties’ briefs, which were submitted, without oral 23 argument, to the Honorable Gary S. Austin, United States Magistrate Judge.1 24 25 26 27 28 1 The parties consented to the jurisdiction of the United States Magistrate Judge. (See Docs. 9 & 10.) 1 Dockets.Justia.com FACTS AND PRIOR PROCEEDINGS2 1 2 In August 2005, Plaintiff filed an application for supplemental security income benefits. 3 AR 58-63. Plaintiff’s application was denied initially and on reconsideration; thereafter, Plaintiff 4 requested a hearing before an Administrative Law Judge (“ALJ”). AR 29, 46-57. ALJ Bert C. 5 Hoffman held a hearing and issued an order denying benefits on May 22, 2007, finding that 6 Plaintiff was not disabled. AR 12-18. On July 16, 2010, the Appeals Council denied review. 7 AR 4-6. 8 Hearing Testimony 9 ALJ Hoffman held a hearing on May 7, 2007, in Fresno, California. Plaintiff appeared 10 and testified; he was represented by attorney Melissa Proudian. Plaintiff was also assisted by a 11 Hmong language interpreter. AR 169-203. 12 On the date of the hearing, Plaintiff was twenty-five years old. At five feet, eight inches 13 tall, he weighs 349 pounds. AR 172. His normal weight should be about 180 pounds, however, 14 he last weighed 180 pounds in the third grade. AR 172-173; see also AR 198. Plaintiff is not 15 married and does not have any children. AR 173. 16 Plaintiff does not have a driver’s license and does not know how to drive. He has tried 17 more than five times to pass the exam for his permit but has been unable to do so. AR 173-174. 18 His primary mode of transportation is the bus. AR 174. When his bike is in good working 19 condition, he will also use it to get around. AR 174-175. 20 Although he graduated from high school, Plaintiff attended special education classes due 21 to a learning disability. He has difficulty understanding instructions. AR 176. He can read the 22 newspaper and follows sports. AR 176-180. After attending Hoover High School for three 23 years, Plaintiff was transferred to McLane High School after hitting another student with a lock. 24 AR 193-194. He received vocational training in 2004, learning janitorial skills. AR 180-182. 25 26 27 28 2 References to the Administrative Record will be designated as “AR,” followed by the appropriate page number. 2 1 During the course, he performed janitorial duties at Fresno Adult school, but has not worked as a 2 janitor since that time. AR 182. He believes he could perform the work of a janitor were he to 3 be offered such a job. AR 183. 4 Plaintiff has no work history. He has difficulty completing job applications. AR 182. He 5 applied for a position as a janitor at Target, using its computer application program. AR 184- 6 185. When he was asked what type of work he would like to do, Plaintiff indicated he would 7 like to be a master fisherman and skipper his own boat. AR 197. 8 Other than his weight, Plaintiff indicated his knees and back keep him from working. AR 9 186. Both knees hurt, and his knees are more painful than his back. AR 186-187. He feels pain 10 in his knees when it is cold. AR 187. He does not take either prescription medication or over the 11 counter medication to treat these conditions. AR 187-188. With regard to his weight, Plaintiff 12 has tried dieting in the past, but always gains the weight back. AR 188. He has never been on an 13 exercise program. AR 198. 14 Plaintiff can go to the store and purchase food items. AR 190-191, 198-199. He does not 15 cook, but can heat food up in a microwave. AR 191. Around the house, Plaintiff enjoys 16 vacuuming and watching television. AR 202. He spends time with his family, and his brothers 17 help him. AR 201. He does not have other friends. AR 201. He does not have, nor has he ever 18 had, a girlfriend. AR 202. 19 To help control his anger, Plaintiff goes to Fresno County Mental Health about once a 20 month. AR 192-193. When he gets angry, he throws things. AR 193. He gets angry and sad 21 when people look at him. AR 200-201. When he gets sad, he cries “[a] little bit” and takes a 22 walk. AR 201. 23 Medical Record 24 The medical record was reviewed by the Court. AR 106-168. The medical evidence will 25 be referenced below as necessary to this Court’s decision. 26 27 28 3 1 ALJ’s Findings 2 Using the Social Security Administration’s five-step sequential evaluation process, the 3 4 ALJ determined that Plaintiff did not meet the disability standard. AR 12-18. More particularly, the ALJ found that Plaintiff had not engaged in substantial gainful 5 activity since August 5, 2005. AR 14. Further, the ALJ identified borderline intellectual 6 functioning as a severe impairment. AR 14. Nonetheless, the ALJ determined that the severity 7 of Plaintiff’s impairment did not meet or exceed any of the listed impairments. AR 14-15. 8 Based on his review of the entire record, the ALJ determined that Plaintiff has the 9 residual functional capacity (“RFC”) to perform work without exertional limitations, and has the 10 mental capacity to understand, remember and carry out simple tasks, interact appropriately with 11 others and adapt to change in a work setting. AR 15-17. 12 Next, the ALJ determined that Plaintiff had no past relevant work. AR 17. Nevertheless, 13 based upon Plaintiff’s age, education, work experience and RFC, the ALJ determined there were 14 jobs that existed in significant numbers in the national economy that Plaintiff could perform. AR 15 17-18. Therefore, the ALJ determined Plaintiff was not disabled. AR 18. 16 SCOPE OF REVIEW 17 Congress has provided a limited scope of judicial review of the Commissioner’s decision 18 to deny benefits under the Act. In reviewing findings of fact with respect to such determinations, 19 this Court must determine whether the decision of the Commissioner is supported by substantial 20 evidence. 42 U.S.C. § 405 (g). Substantial evidence means “more than a mere scintilla,” 21 Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. 22 Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 1975). It is “such relevant evidence as a 23 reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 24 401. The record as a whole must be considered, weighing both the evidence that supports and 25 the evidence that detracts from the Commissioner’s conclusion. Jones v. Heckler, 760 F.2d 993, 26 995 (9th Cir. 1985). In weighing the evidence and making findings, the Commissioner must 27 28 4 1 apply the proper legal standards. E.g., Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). 2 This Court must uphold the Commissioner’s determination that the claimant is not disabled if the 3 Secretary applied the proper legal standards, and if the Commissioner’s findings are supported by 4 substantial evidence. See Sanchez v. Sec’y of Health and Human Serv., 812 F.2d 509, 510 (9th 5 Cir. 1987). 6 7 REVIEW In order to qualify for benefits, a claimant must establish that he is unable to engage in 8 substantial gainful activity due to a medically determinable physical or mental impairment which 9 has lasted or can be expected to last for a continuous period of not less than twelve months. 42 10 U.S.C. § 1382c (a)(3)(A). A claimant must show that he has a physical or mental impairment of 11 such severity that he is not only unable to do her previous work, but cannot, considering his age, 12 education, and work experience, engage in any other kind of substantial gainful work which 13 exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). 14 The burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th 15 Cir. 1990). 16 In an effort to achieve uniformity of decisions, the Commissioner has promulgated 17 regulations which contain, inter alia, a five-step sequential disability evaluation process. 20 18 C.F.R. §§ 404.1520 (a)-(f), 416.920 (a)-(f) (1994). 19 20 21 Here, Plaintiff argues that the ALJ erred by failing to find that he met or equaled Listing 12.05C. DISCUSSION 22 Plaintiff asserts he is disabled because he meets or equals the requirements of Listing 23 12.05C for mild mental retardation. (Doc. 12 at 9-25.) More particularly, he asserts that the 24 record establishes his IQ scores meet the requirements of the listing, and that by rejecting the 25 opinion of the examining physician, the ALJ erred by failing to adopt limitations regarding lifting 26 and carrying that imposed an additional and significant work-related limitation. The 27 28 5 1 Commissioner contends that the ALJ did not err, and that his findings are supported by 2 substantial evidence and proper analysis. (Doc. 14 at 6-11.) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 The Disability Evaluation Under Social Security (Blue Book September 2008) defines mental retardation as follows: 12.05 Mental retardation: Mental retardation refers to significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22. The required level of severity for this disorder is met when the requirements in A, B, C, or D are satisfied. A. Mental incapacity evidenced by dependence upon others for personal needs (e.g., toileting, eating, dressing, or bathing) and inability to follow directions, such that the use of standardized measures of intellectual functioning is precluded; OR B. A valid verbal, performance, or full scale IQ of 59 or less; OR C. A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function; OR D. A valid verbal, performance, or full scale IQ of 60 through 70, resulting in at least two of the following: 1. Marked restriction of activities of daily living; or 2. Marked difficulties in maintaining social functioning; or 3. Marked difficulties in maintaining concentration, persistence, or pace; or 4. Repeated episodes of decompensation, each of extended duration. 17 18 Emphasis added. See http://www.ssa.gov/disability/professionals/bluebook/12.00. 19 ALJ Hoffman found as follows: 20 The claimant’s borderline intellectual functioning does not meet the criteria of section 12.05, pertaining to mental retardation. Although the claimant had Performance and Full Scale IQ scores of 70, he does not have another impairment which imposes significant additional limitations. The claimant’s mental condition causes him no restriction of the activities of daily living, mild difficulties in maintaining social functioning, mild difficulties in maintaining concentration, persistence, and pace, and has not caused extended episodes of deterioration. 21 22 23 24 25 AR 14-15.3 The issue here is whether or not Plaintiff suffers from an additional and significant 26 27 28 3 Clinical Psychologist Richard Engeln also recorded a Verbal IQ score of 74. AR 117. 6 1 2 work-related limitation of function. Plaintiff contends internist James Nowlan, M.D., recorded a number of range of motion 3 findings that “are consistent with a severe impairment limiting [him] to somewhere between light 4 and medium exertion work.” He claims the ALJ failed to offer any legally sufficient reason to 5 reject Dr. Nowlan’s opinion. (Doc. 12 at 18.) 6 Cases in this circuit distinguish among the opinions of three types of physicians: (1) those 7 who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant 8 (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining 9 physicians). As a general rule, more weight should be given to the opinion of a treating source 10 than to the opinion of doctors who do not treat the claimant. Winans v. Bowen, 853 F.2d 643, 11 647 (9th Cir. 1987). At least where the treating doctor’s opinion is not contradicted by another 12 doctor, it may be rejected only for “clear and convincing” reasons. Baxter v. Sullivan, 923 F.2d 13 1391, 1396 (9th Cir. 1991). Even if the treating doctor’s opinion is contradicted by another 14 doctor, the Commissioner may not reject this opinion without providing “specific and legitimate 15 reasons” supported by substantial evidence in the record for so doing. Murray v. Heckler, 722 16 F.2d 499, 502 (9th Cir. 1983). 17 The opinion of an examining physician is, in turn, entitled to greater weight than the 18 opinion of a nonexamining physician. Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990); 19 Gallant v. Heckler, 753 F.2d 1450 (9th Cir. 1984). As is the case with the opinion of a treating 20 physician, the Commissioner must provide “clear and convincing” reasons for rejecting the 21 uncontradicted opinion of an examining physician. Pitzer, 908 F.2d at 506. And like the opinion 22 of a treating doctor, the opinion of an examining doctor, even if contradicted by another doctor, 23 can only be rejected for specific and legitimate reasons that are supported by substantial evidence 24 in the record. Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995). 25 26 The opinion of a nonexamining physician cannot, by itself, constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician. 27 28 7 1 Pitzer, 908 F.2d at 506 n. 4; Gallant, 753 F.2d at 1456. In some cases, however, the ALJ can 2 reject the opinion of a treating or examining physician, based in part on the testimony of a 3 nonexamining medical advisor. E.g., Magallanes v. Bowen, 881 F.2d 747, 751-55 (9th Cir. 4 1989); Andrews, 53 F.3d at 1043; Roberts v. Shalala, 66 F.3d 179 (9th Cir. 1995). For example, 5 in Magallanes, the Ninth Circuit explained that in rejecting the opinion of a treating physician, 6 “the ALJ did not rely on [the nonexamining physician's] testimony alone to reject the opinions of 7 Magallanes's treating physicians . . ..” Magallanes, 881 F.2d at 752. Rather, there was an 8 abundance of evidence that supported the ALJ’s decision: the ALJ also relied on laboratory test 9 results, on contrary reports from examining physicians, and on testimony from the claimant that 10 conflicted with her treating physician's opinion. Id. at 751-52. 11 Here, ALJ Hoffman found as follows: 12 In October 2005 Dr. J. Nowlan performed a consultative internal medicine evaluation of the claimant and concluded that he did not have limitations on sitting, walking, or standing, though he might have slight postural limitations because of obesity. Dr. Nowlan also stated that the claimant could occasionally lift 40 pounds and frequently lift and carry 15 pounds. The examination showed that the claimant was 5'8" tall and weighed 333 pounds; his blood pressure was 138/79. The claimant had normal heart and lung sounds; normal sight and hearing; and normal reflexes and coordination. The claimant had full range of movement in his neck, back, and extremities; his strength and gait were normal, and he did not have neurological deficits or residuals of facial paralysis.[4] 13 14 15 16 17 18 AR 15, internal citations omitted. In considering the weight to afford Dr. Nowlan’s opinion, the 19 ALJ further stated: 20 21 22 23 24 I give substantial weight to the consultative internist’s examination findings, but disregard his conclusion that the claimant had any restrictions in lifting and carrying weight. These restrictions are not supported by the consultative examination findings or confirmed by other treatment records. Substantial weight is given to the conclusion of the state agency analyst and reviewing medical consultant that the claimant’s physical impairment was nonsevere. AR 16, internal citations omitted. 25 26 27 28 4 Plaintiff was diagnosed with Bell’s Palsy in August 2005; it had resolved by October of that year. AR 15. 8 1 Plaintiff’s assertion that the ALJ did not “offer any legally sufficient analysis as to why he 2 ignores and rejects” the opinion is inaccurate. ALJ Hoffman provided two reasons: (1) the 3 restrictions were not supported by the examination itself; and (2) the limitations were not 4 confirmed by other treatment records. 5 First, rejecting an opinion that contains internal inconsistencies is a specific and 6 legitimate reason to discount the opinion. Roberts v. Shalala, 66 F.3d at 184 (rejection of 7 examining psychologist’s functional assessment which conflicted with his own written report and 8 test results); see also Buckner-Larkin v. Astrue, 2011 WL 4361652 (9th Cir. Sept. 20, 2011). 9 Despite noting in his general findings that “in spite of his obesity [Plaintiff’s] range of motion 10 was good,” and that Plaintiff had full motor strength in all muscle groups, Dr. Nowlan opined 11 that Plaintiff could occasionally lift and carry forty pounds and frequently lift and carry fifteen 12 pounds, and that he “has slight postural limitations because of his weight.” AR 127-128.5 Dr. 13 Nowlan’s opinion is in fact inconsistent with his own findings and the ALJ properly rejected this 14 portion of Dr. Nowlan’s opinion. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) 15 (“[t]he incongruity between Dr. Nachenberg's Questionnaire responses and her medical records 16 provides an additional specific and legitimate reason for rejecting Dr. Nachenberg's opinion of 17 Tommasetti's limitations”). 18 Second, ALJ Hoffman noted a lack of confirming treatment records. A lack of 19 supporting clinical findings is a valid reason to reject a physician’s opinion. Magallanes v. 20 Bowen, 881 F.2d at 751. Here, there is nothing in the medical record that supports Dr. Nowlan’s 21 limitations. In fact, this record is void of any indication that Plaintiff was physically limited in 22 any way. Notably too, Plaintiff himself testified that he could perform the work of a janitor if 23 such a position were to be offered to him. See AR 183. 24 25 5 27 W ith regard to the examination findings, Plaintiff contends Dr. Nowlan’s range of motion findings regarding the lumbar region, hip joints and ankle joints were not normal and affect his ability to perform work activity. (Doc. 12 at 17-18.) However, it appears that Plaintiff is simply trying to substitute his own opinion for that of the ALJ or the examining physician. 28 9 26 1 Finally, when the ALJ rejects the opinion of an examining physician in reliance on the 2 non-examining physician, “reports of the nonexamining advisor need not be discounted and may 3 serve as substantial evidence when they are supported by other evidence in the record and are 4 consistent with it.” Andrews v. Shalala, 53 F.3d at 1041; Saelee v. Chater, 94 F.3d 520, 522 (9th 5 Cir. 1996). State agency physicians determined that Plaintiff’s obesity was non-severe. AR 136, 6 152. Here, the medical record is sparse and does not include any other information regarding 7 either Plaintiff’s obesity or limitations to lifting and carrying. Therefore, the record serves as 8 other evidence in support of the non-examining physicians’ opinions. 9 Because this Court has determined that Plaintiff does not suffer from an additional and 10 significant work-related limitation of function as required by Listing 12.05C, there is no need to 11 address Plaintiff’s assertions regarding a finding of subaverage intelligence prior to the age of 12 twenty-two.6 Neither does this Court address the Commissioner’s assertion that Plaintiff’s anger 13 management and agitation issues do not amount to a severe mental impairment; as noted by the 14 Commissioner, Plaintiff did not make such an argument and thus has waived it for purposes of 15 appeal. 16 In sum, ALJ Hoffman’s findings are supported by substantial evidence and are free of 17 legal error. 18 // 19 // 20 // 21 // 22 // 23 // 24 25 6 27 The Court does note that in previous cases of this type, the undersigned has found the cases in support of a rebuttable presumption, in the absence of Ninth Circuit authority, to be persuasive. See Campbell v. Astrue, 2011 W L 444783 (E.D. Cal. Feb. 8, 2011) *16-18; Aminzadeh v. Astrue, 2011 W L 3322798 (E.D. Cal. Aug. 2, 2011) *78. 28 10 26 1 2 CONCLUSION Based on the foregoing, the Court finds that the ALJ’s decision is supported by 3 substantial evidence in the record as a whole and is based on proper legal standards. 4 Accordingly, this Court DENIES Plaintiff’s appeal from the administrative decision of the 5 Commissioner of Social Security. The Clerk of this Court is DIRECTED to enter judgment in 6 favor of Defendant Michael J. Astrue, Commissioner of Social Security and against Plaintiff, 7 Benjamin Moua. 8 9 10 IT IS SO ORDERED. Dated: 6i0kij December 1, 2011 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11