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MARTIN v. BARNHART

United States District Court, Northern District of California


May 1, 2003

RICKY MARTIN, PLAINTIFF,
v.
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: Susan Illston, United States District Judge

JUDGMENT

The denial by the Commissioner of supplemental security income benefits to plaintiff Ricky Martin is affirmed. Judgment is entered accordingly.

IT IS SO ORDERED AND ADJUDGED.

ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF'S MOTION FOR REMAND; AND GRANTING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT
Plaintiff Ricky Martin ("Martin") has filed a motion for summary judgment, challenging the Commissioner of Social Security's denial of supplemental security income benefits. Defendant Commissioner has filed a cross-motion for summary judgment. Having reviewed all the relevant documents, the Court hereby DENIES plaintiffs motion for summary judgment, DENIES plaintiffs motion for remand and GRANTS defendant's cross-motion for summary judgment.

BACKGROUND

A. Procedural History

On April 12, 1999 Martin applied for supplemental security income ("SSI") benefits under Title XVI of the Social Security Act, claiming that he had been disabled due to heart, back, and right foot problems, bleeding ulcer, and shortness of breath. (Tr. 291-293, 308). His application was denied initially on July 29, 1999, and again upon reconsideration on September 9, 1999 by the Social Security Administration. (Tr. 14). Martin then filed a timely request for an ALJ hearing on September 22, 1999. (Tr. 252). Martin had filed prior applications for disability insurance benefits and SSI benefits based on disability on January 9, 1998, August 6, 1997 and April 20, 1994. (Tr. 14-15, 208-15). In all three applications, it was determined that Martin was not disabled. Id. The ALJ did not reopen Martin's prior applications. (Tr. 14-15). The ALJ upheld the denial of benefits in his decision dated March 7, 2001. (Tr. 14). The ALJ found that Martin retained the residual functional capacity for light exertional work, with no concentrated exposure to fumes, odors, gases and dust. (Tr. 18). The ALJ also found that Martin does not have any impairment or impairments which meet or equal the criteria set forth in any applicable section of the Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 18). An alternative ground for the ALJ's decision was the lack of any showing of changed circumstances since the prior ALJ denial decision on October 26, 1995 that would establish Martin's disability. (Tr. 19). On August 3, 2001, the Appeals Council denied Martin's request for review of the ALJ's decision. Martin subsequently filed a complaint in this Court on October 9, 2001, seeking judicial review of the ALJ's decision.

B. Summary of Medical Evidence

In July of 1996, Martin injured his right heel while playing basketball. (Tr. 410). He sought emergency care at San Francisco General Hospital where he was diagnosed with a right Achilles tendon rupture. (Tr. 410). On July 29, 1996 orthopedic surgeon Theodore Miclau, M.D., performed a surgical repair of Martin's Achilles tendon rupture. Id. Martin "withstood the procedure well" and there were no complications. (Tr. 411). The progress reports submitted by San Francisco General Hospital on January 8, 1997, July 23, 1997 and November 12, 1997 all indicated that Martin's Achilles tendon repair had "healed," and that he was "doing well." (Tr. 475, 482, 493).

On September 9, 1997 Dr. Martin, an internist at North State Medical Clinic, examined plaintiff and reported: he had "no difficulty getting onto or off the examining table"; he used no assistive devices; his lungs were clear; the etiology of his alleged chest pain was unclear; the straight leg raising test was negative; and the neurological examination was essentially normal. (Tr. 507-508). During the examination, Martin did complain of "persistent pain in the area of his Achilles tendon as well as ipsilateral right hip pain which developed during the subsequent months" after he underwent surgical repair of his tendon rupture. (Tr. 506). Martin recalled that he had "been told by his orthopedist that he has arthritis in that hip." Id. Dr. Martin also stated that Martin "would likely benefit from no heavy lifting, no stairs and no prolonged standing and no squatting." (Tr. 508).

X-rays were also performed on Martin at San Francisco General Hospital due to his complaints of persistent pain in his Achilles tendon, chest and right hip. The X-rays of Martin's right knee taken on June 22, 1997 disclosed "no evidence of acute fracture or dislocation." (Tr. 447). The X-rays of Martin's right hip taken on July 5, 1997 showed "no evidence of acute fracture or dislocation." (Tr. 447). The X-rays of Martin's pelvis taken on July 23, 1997 showed "no significant abnormality." (Tr. 445). A pulmonary function test was also performed on February 22, 1997 that showed "no evidence of chronic obstructive pulmonary disease." (Tr. 446). Martin's chest X-ray taken on January 3, 1998 did not disclose any significant abnormalities. (Tr. 444). A "dipyridamole stress and rest sestamibi study" performed in June 1998 showed "no evidence of myocardial infarction or ischemia." (Tr. 395, 452). The discharge note by Dr. Todd May at San Francisco General Hospital dated June 22, 1998 stated that the myocardial infarction was "ruled out," that Martin had "no further episode of chest pain, " but that he did have "gastroesophageal reflux disease." (Tr. 463).

The state agency physicians, who reviewed the medical evidence, reported on September 23, 1997, November 19, 1998, and July 28, 1999 that Martin could lift or carry up to fifty pounds occasionally and up to twenty-five pounds frequently, and that he could stand or walk for about six hours and sit for about six hours in an eight-hour workday (Tr. 519, 527, 535). Dr. Elliot Liff, a Board-certified internist, examined Martin on July 19, 1999. (Tr. 511-516). Dr. Liff reported that Martin had a full range of motion of all the joints in his lower extremities; there was no "edema"; he had a normal gait; his lungs were clear; and his heart had a "regular sinus rhythm," with "no murmurs." (Tr. 512).

On July 21, 2000, Dr. Deborah Greer of Southeast Health Center examined Martin and completed a "cardiac residual functional capacity questionnaire" to determine Martin's physical impairments and limitations. (Tr. 549). Dr. Greer stated that Martin's symptoms included chest pain, shortness of breath, fatigue, palpitations, and dizziness, and that he had chronic right knee pain and right Achilles pain. (Tr. 549, 554). Dr. Greer reported that Martin stated that he had a "burning pain everyday," and that he could not work "under stressful situation[s]." (Tr. 550). Dr. Greer stated that Martin could lift or carry twenty pounds occasionally and ten pounds frequently, that he could walk half a city block without severe pain or rest, that he could stand or walk for only less than two hours in an eight-hour workday, that he had environmental restrictions, and that he needed a 10-minute unscheduled break every hour during an eight-hour workday. (Tr. 552-553). Dr. Greer also stated that Martin's impairments could be expected to last at least twelve months. (Tr. 551).

Dr. E. See, also of the Southeast Health Center, examined Martin and indicated on his objective findings that Martin's impairments included "knee pain, chronic back pain, and left ankle dermatoforima." (Tr. 555). Dr. See also found that Martin had a "temporary disabling condition that will last less than twelve months" therefore he was still "employable" and not precluded from all work since his disabling condition would not last the statutorily required continuous period of at least twelve months. Id.

C. The ALJ's Decision

The ALJ must evaluate a claimant's disability according to the following five-step sequential evaluation process established by the Social Security Administration. See 20 C.F.R. § 416.920. First, the ALJ must determine whether the claimant is engaged in any substantial gainful activity. See 20 C.F.R. § 416.920 (b). If not, at step two of the evaluation, the ALJ must determine whether the claimant has a severe impairment or combination of impairments. See 20 C.F.R. § 416.920 (c). The third step addresses whether the claimant suffers from an impairment that meets or equals the criteria of severity set forth in the Social Security Regulations. See 20 C.F.R. § 416.920 (d).*fn1 At step three, "the medical evidence of the claimant's impairment is compared to a list of impairments presumed severe enough to preclude gainful work." Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). "If the claimant meets or equals one of the listed impairments, a conclusive presumption of disability applies." Id. If the presumption does not apply, the ALJ proceeds to step four and determines the claimant's residual functional capacity ("RFC"), which is defined as what an individual can still do in a work setting despite limitations caused by medically determinable impairments. 20 C.F.R. § 416.9545 (a). If past work cannot be performed, then under step five, the ALJ must determine if there is any other substantial work the plaintiff can perform. See id. at § 416.920(f). If the plaintiff cannot perform either, benefits are generally awarded. See Marcia v. Sullivan, 900 F.2d at 174.

At step one, the ALJ found that although Martin had worked during the adjudicative period as a doorman, this work did not constitute substantial gainful activity. (Tr. 15). Accordingly, the ALJ found that Martin had not performed substantial gainful activity since August 31, 1992. Id. At step two, the ALJ found that Martin had medically determinable "severe" status post right Achilles tendon rupture; a history of low back strain; right knee and hip pain since 1997, status post injury; substance abuse (alcohol, cocaine, and cigarettes) by history; left ventricular hypertrophy and chest pain; gastroesophageal reflux disease; and asthma. (Tr. 16).

At step three, the ALJ accepted the determination of the testifying medical expert, Dr. Glen Malley, and found that Martin had no impairment or combination of impairments that meet or equal the criteria of severity set forth in the Social Security Regulations. See 20 C.F.R. § 416.920 (d). Dr. Malley reviewed the medical evidence of record and testified that Martin's alleged chest pain was "equivocal," and that there was no evidence to confirm myocardial infarction or heart attack. (Tr. 57-58). Dr. Malley stated that Martin retained the capacity to perform light work and that he disagreed with the opinion of Dr. Deborah Greer, Martin's treating physician, that he needed a ten-minute break every hour during an eight-hour workday. (Tr. 60, 73, 552). Therefore, a presumptive finding of disability is not warranted (20 C.F.R. § 416.920 (d)). In reliance on Dr. Malley's opinion, the ALJ made the finding that Martin has the residual functional capacity to perform light work with avoidance of concentrated exposure to fumes, odors, gases and dust. (Tr. 17).

At step four, the ALJ found that Martin had no past relevant work, as defined in the Social Security regulations, because he was probably not working at a substantial gainful activity level. (Tr. 17) 20 C.F.R. § 416.965. Since Martin had no past relevant work experience, the ALJ proceeded to step five to determine if there was any other substantial work the plaintiff could perform. The ALJ relied on the testimony of the vocational expert who testified that an individual such as Martin could perform 40% of the 1,600 occupations administratively noticed at the light and sedentary exertional levels. (Tr. 17). The ALJ found this to represent a significant number of jobs that Martin could still perform, and thus he was not disabled under step five of the sequential evaluation. (Tr. 18).

LEGAL STANDARD

"Disability" under the Social Security Act is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423 (d)(1)(A). The plaintiff has the burden of establishing a prima facie case for disability. See Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992) (citing Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984)). "Once a claimant demonstrates inability to return to past work because of a medical disability, the burden shifts to the [Commissioner] to show the claimant can perform other substantial gainful work, considering her age, education and work experience." Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985); see also Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988).

In reviewing the denial of disability benefits, courts will not set aside the ALJ's decision so long as the ALJ's findings are based upon correct legal standards and are supported by substantial evidence in the record. See Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989); see also Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984); Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). Substantial evidence is "more than a mere scintilla" but "less than a preponderance" — it is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971) (citation omitted); see also Desrosiers v. Sec. of Health & Human Serv., 846 F.2d 573, 576 (9th Cir. 1988). To determine whether substantial evidence exists, courts must look at the record as a whole, considering both evidence that supports and that undermines the ALJ's findings: See Jones, 760 F.2d at 995. However, the ALJ's decision must be upheld if the evidence is susceptible to more than one rational interpretation. See Gallant, 753 F.2d at 1453; see also Allen v. Sec. of Health & Human Serv., 726 F.2d 1470 (9th Cir. 1984); Allen, 749 F.2d at 579 (holding that where there is conflicting testimony or medical reports, the ALJ's decision must be affirmed); Booz v. Sec. of Health & Human Serv., 734 F.2d 1378, 1380 (9th Cir. 1983) (stating that, "[i]t is the ALJ's function to resolve conflicts in the evidence.").

DISCUSSION

Martin argues that the ALJ committed error by failing to afford controlling weight to the opinion of Dr. Greer, Martin's treating physician. Martin also argues that the ALJ failed to articulate any specific reason, legitimate or otherwise, for relying more heavily on the opinion of Dr. Malley, the non-examining physician, rather than Dr. Greer. Finally, Martin argues that the ALJ committed error by not providing clear and convincing evidence in the case record supporting his finding that Martin was not completely credible. Therefore, Martin argues that this case should be remanded for further development.

The Commissioner claims that Martin's impairments included a history of alcohol and drug abuse, and that Public Law No. 104-121 extinguishes disability benefits based on drug addiction or alcoholism. The Commissioner also asserts that the prior denial of disability benefits to Martin in October 26, 1995 at the ALJ level had res judicata effect, and that Martin did not carry the burden of proving "changed circumstances" by showing that his impairment had become more severe since the date of the earlier decision. Furthermore, the Commissioner contends that the medical reports of record provide substantial findings and opinions to support the ALJ's determination that Martin retained the capacity to perform light work and that the ALJ's credibility determination was based on adequate reasons since Martin's complaints were inconsistent with substantial medical evidence of record.

A. ALJ's Consideration of Medical Evidence Supported by Substantial Evidence

Martin argues that the ALJ committed error by failing to afford the opinion of Dr. Greer "controlling weight." (Plaintiffs Memorandum for Summary Judgement, ¶. 6). In addition, Martin argues that the opinions of the non-examining sources should not be considered "substantial evidence" because all other evidence in the record contradicts those opinions. Id. at 4. The Commissioner contends, however, that the ALJ's decision to rely more heavily on the opinion of the non-treating, non-examining medical expert, Dr. Malley, was appropriate and that this opinion may serve as substantial evidence because it was not contradicted by the other evidence in the record.

Generally, more weight is given to a treating physician's opinion because "he is employed to cure and has a greater opportunity to know and observe the patient as an individual." Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987). The treating physician's opinion is not, however, necessarily conclusive as to either a physical condition or the ultimate issue of disability. Rodriguez v. Bowen, 876 F.2d 759, 761-62 (9th Cir. 1989). The ALJ may disregard the treating physician's opinion whether or not that opinion is contradicted. See id.; Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986). For example, the ALJ need not accept a treating physician's opinion which is "brief and conclusionary in form with little in the way of clinical findings to support its conclusion." Young v. Heckler, 803 F.2d 963, 968 (9th Cir. 1986). In addition, where the opinion of the claimant's treating physician is contradicted, and the opinion of a nontreating source is based on independent clinical findings that differ from those of the treating physician, the opinion of the nontreating source may itself be substantial evidence; it is then solely the province of the ALJ to resolve the conflict. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989).

Based on these rules, the ALJ did not commit error in deciding to give more weight to the opinion of Dr. Malley, the non-treating medical expert. The ALJ declared in his opinion that Dr. Malley's testimony was "consistent and well supported" by the medical evidence in the record. (Tr. 17). The medical evidence in the record largely contradicted the opinion of Dr. Greer. In addition, Dr. Malley's testimony was based on his review of the medical evidence of record, which contained independent clinical findings that differed from those of the treating physician. (Tr. 56-74). Since Dr. Malley's opinion "rested on objective clinical tests, it must be viewed as substantial evidence." Miller v. Heckler, 770 F.2d 845, 849 (9th Cir. 1985). Use of medical experts such as Dr. Malley is supported by the case law:

[T]he assistance to the ALJ of such consultative physicians is obvious and we refuse to exclude such evidence, whether offered in writing or in person. The analysis and opinion of an expert selected by the ALJ may be helpful to the ALJ's adjudication, and we should not impose burdensome procedural requirements that facilitate . . . second-guessing [the ALJ's resolution of conflicting medical testimony.]
Allen v. Heckler, 749 F.2d 577, 580 (9th Cir. 1984).

Martin next argues that, in considering what weight to afford the opinion of the non-examining source, the ALJ failed to consider all the factors required under the Regulations (20 C.F.R. § 404.927 (d)). However, the ALJ did give specific and legitimate reasons for deciding to give less weight to Dr. Greer's functional assessment. The ALJ cited the fact that Martin was first seen at the clinic by Dr. Greer only the prior month and that Dr. Greer was not a trained cardiologist evaluating the cardiac limitations. (Tr. 16). Both of these factors correspond directly with the length and extent of the treatment relationship and specialization factors set forth in the regulations. 20 C.F.R. § 416.927 (d)(2)(i), 416.927(d)(2)(ii), 416.927(d)(5). Furthermore, the ALJ took notice of the fact that Dr. Greer's opinion was contradicted by Dr. Malley, the medical expert, whose testimony was consistent and well supported by the record. (Tr. 17). This was in accord with the regulations which declare that "the more consistent an opinion is with the record as a whole, the more weight we will give to that opinion." 20 C.F.R. § 416.927 (d)(4).

Therefore, the Court finds that the ALJ discounted Dr. Greer's opinion regarding Martin's limitations based upon substantial evidence and in accordance with the relevant regulations.

B. The ALJ Properly Rejected Martin's Subjective Complaints

Martin also contends that the ALJ's credibility determination was not based on adequate reasons. For the ALJ to reject the claimant's complaints, the ALJ must provide "specific, cogent reasons for the disbelief." Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Once the claimant produces medical evidence of an underlying impairment, the Commissioner may not discredit the claimant's testimony as to subjective symptoms merely because they are unsupported by objective evidence. Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc). Unless there is affirmative evidence showing that the claimant is malingering, the Commissioner's reasons for rejecting the claimant's testimony must be "clear and convincing." Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989). General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints. Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993).

In this case, the ALJ acknowledged that there were medically determinable severe impairments: status post right Achilles tendon rupture; a history of low back strain; right knee and hip pain since 1997, status post injury; substance abuse by history; left ventricular hypertrophy and chest pain; gastroesophageal reflux disease; and asthma. (Tr. 18). However, the ALJ provided specific reasons for his disbelief other than a lack of objective evidence. In particular, the ALJ cited Martin's willingness to drive when he gets a license, his vague and unpersuasive testimony, and his own observation of Martin as a large man in good physical condition. (Tr. 16). It is also reasonable to suggest that the ALJ relied on the evidence in the record where Martin stated that his normal activities included "some light jobs around the house," doing the laundry, sweeping, visiting family or friends once a week, and participating in church activities. (Tr. 306, 360-361). These activities are consistent with an ability to perform light work. See Curry v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1990). Such activities are also valid reasons for discounting subjective complaints of disabling pain and limitations. See generally Matney v. Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992); Fair v. Bowen, 885 F.2d 597, 602-606 (9th Cir. 1989) ("credibility determinations are the province of the ALJ"). It was also proper for the ALJ to include his observation of Martin at the hearing as one basis for his credibility determination. (Tr. 16). Matney, 981 F.2d at 1021; Drouin v. Bowen, 966 F.2d 1255, 1258-59 (9th Cir. 1992).

The ALJ's findings are based upon correct legal standards and are supported by substantial evidence in the record. In making this determination that substantial evidence exists, the Court looked at the record as a whole, considering both evidence that supports and that undermines the ALJ's findings.

C. Substance Abuse as a Material Factor to Disability

Given this Court's determination that substantial evidence supports the ALJ's findings, independent of any question or drug or alcohol abuse, the Court declines to address the Commissioner's argument that Martin is ineligible to receive disability benefits because his impairments included a history of alcohol and drug abuse.

D. Res Judicata Effect of Martin's Previous Application

Given this Court's determination that substantial evidence supports the ALJ's findings, the Court declines to address the Commissioner's argument that Martin did not carry the burden of proving "changed circumstances."

E. Record Needs No Further Development

Martin argued that the ALJ's decision contained errors and omissions involving broad policy and/or procedural issues that affect the public, for which this case should be remanded for further development. As the Court has already determined, the record before the ALJ was fully developed and the ALJ's findings were supported by substantial evidence in the record. Therefore, the Court rejects Martin's request that this case be remanded for further consideration.

CONCLUSION

For the foregoing reasons, the Court hereby GRANTS defendant's cross-motion for summary judgment [docket # (11)], DENIES plaintiffs motion for remand [docket # (8)], and DENIES plaintiffs motion for summary judgment [docket # (8)].

IT IS SO ORDERED.


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