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CHU v. BARNHART

United States District Court, N.D. California


May 28, 2004.

JOHN C CHU, Plaintiff
v.
JOANNE B BARNHART, Commissioner of the Social Security Administration, Defendant

The opinion of the court was delivered by: VAUGHN WALKER, District Judge

ORDER

Plaintiff appeals from the decision of the administrative law judge ("ALJ") denying plaintiff social security disability benefits. The court now considers cross motions for summary judgment. Pl Mot (Doc # 12); Def Mot (Doc # 16). Based upon review of the administrative record, the court DENIES plaintiff's motion and GRANTS defendant's motion. I

A

  Plaintiff was fifty-eight years old on October 1, 1997, the date of the disability onset he alleges. Administrative Record ("AR") (Doc #10) at 19. Plaintiff has a master of arts degree in physics and past relevant work experience as a computer technician. AR at 20-21, 69. Plaintiff reported that he frequently lifted twenty-five pounds in his past work. AR at 69. Plaintiff stopped working on October 1, 1997. AR at 68.

  According to plaintiff, he has arthritis in his back and knees, a surgically-removed fingernail, wrist injuries, an inability to move his right shoulder and a heart problem. AR at 27-28, 30. Plaintiff also states that he had trouble climbing stairs and moving his shoulder. AR at 27.

  In connection with the health problems plaintiff describes, he was examined by two medical experts. First, plaintiff was examined by Dr Suzanne Stone for an internal medicine consultation on December 30, 1999. AR at 157-163. Dr Stone diagnosed plaintiff with chronic lumbar strain, adequately controlled hypertension, history of pulmonary tuberculosis without known recurrence, exogenous obesity, surgically-removed left fourth fingernail and moderate chronic depression. AR at 159. Dr Stone concluded that plaintiff was restricted to lifting or carrying ten pounds frequently, lifting or carrying twenty pounds occasionally, standing or walking two to four hours and sitting six hours continuously with adequate breaks. AR at 159-60. Dr Stone further concluded that plaintiff had moderate exertional limitations on climbing, stooping, kneeling, pushing, balancing, crouching, crawling and pulling. AR. Dr Stone based her opinions on a physical examination of plaintiff and review of plaintiff's pain questionnaire. AR at 157-160.

  Plaintiff subsequently was evaluated by Dr Jonathan Howard, a licensed psychologist, on February 11, 2000. AR at 185-188. Dr Howard noted his diagnostic impressions of plaintiff, including, "[d]epressive and anxious features * * *; [c]onsider [a]djustment [d]isorder; [c]onsider [p]hase of [l]ife [p]roblems." AR at 187. Dr Howard concluded that plaintiff may have difficulty dealing with normal stresses of work and interacting with coworkers and the public. AR at 187-188. Dr Howard also concluded that plaintiff would not have difficulty performing simple repetitive activities, accepting instructions from supervisors or maintaining work attendance. AR at 188. Dr Howard based his opinions on plaintiff's self-reported information, intelligence test performance, clinical examination and review of medical records. AR at 187.

  The reports of Dr Stone and Dr Howard were reviewed by state agency physicians and psychiatrists. AR at 164-171, 189-206. These doctors did not examine plaintiff. The non-examining psychiatrists separately opined that although plaintiff had affective and anxiety-related disorders, the impairments were not severe. AR at 189, 198. The non-examining physicians concluded that plaintiff had only some exertional limitations. AR at 165.

  B

  Plaintiff filed an application for supplemental security income under Title II of the Social Security Act ("the Act") on October 14, 1999, and an application for social security disability benefits under Title XVI of the Act on October 18, 1999. AR (Doc # 10) at 46-48, 217-219. Plaintiff was denied benefits on March 8, 2000, and filed a request for reconsideration on April 5, 2000. AR at 34-39. The request was granted, but plaintiff again was denied benefits on June 1, 2000. AR at 40-43. Plaintiff requested a hearing to review the decision denying him benefits on June 7, 2000. AR at 44-45.

  The ALJ held a hearing on January 4, 2001, in which plaintiff testified that he was disabled due to shoulder, back and knee pain. AR at 17. On January 23, 2001, the ALJ denied benefits to plaintiff based on the evidence presented at the hearing, including the reports from Dr Stone, Dr Howard, the non-examining medical experts, plaintiff's testimony and other medical records. AR at 11-16.

  To determine whether plaintiff was entitled to benefits, the ALJ conducted a five-step sequential evaluation of plaintiff's disability, which considered the following questions: (1) was plaintiff currently engaged in substantial activity; (2) did plaintiff have a severe impairment or a combination of impairments; (3) if plaintiff had a severe impairment, did plaintiff have a condition which meets or equals the conditions outlined in the Listing of Impairments, 20 C.F.R. § 404, Pt 404, Subpt P, App. 1; (4) if plaintiff did not have such a condition, was plaintiff capable of performing his past work; and (5) did plaintiff have the residual functioning capacity to perform any other work. 20 C.F.R. § 404.1520.

  Applying the five-step sequential evaluation to plaintiff, the ALJ specifically found that: (1) plaintiff met the nondisability requirements for a period of disability and had not engaged in substantial gainful activity since October 1, 1997; (2) plaintiff had impairments or combination of impairments considered severe; (3) the impairments did not meet one of the impairments in the Listing of Impairments; (4) plaintiff's allegations regarding his limitations were not totally credible; (5) careful consideration was given to the medical opinions regarding the severity of plaintiff's impairments; (6) plaintiff had the residual functional capacity for medium work activity with lifting and/or carrying limited to fifty pounds occasionally and twenty-five pounds frequently; (7) based on plaintiff's residual functional capacity, plaintiff could perform his past relevant work as a computer technician; and (8) plaintiff was not under a disability as defined in the Act at any time through the date of the decision. AR at 15. Ultimately, the ALJ determined that, while plaintiff had the severe impairments of chronic lumbar strain and Bowen's disease of the left fourth finger, plaintiff was able to perform his past relevant work as a computer technician based on his residual functional capacity to lift and/or carry fifty pounds occasionally and twenty-five pounds frequently. AR at 15.

  Plaintiff appealed to the Social Security Administration's ("SSA") appeals council on March 12, 2001. AR at 6-16. On May 7, 2001, the appeals council denied plaintiff's request for review, and the ALJ's decision became final. AR at 4-5. On June 29, 2001, plaintiff commenced the instant action for judicial review of the final decision. Compl (Doc # 1).

  Plaintiff alleges that he is disabled and unable to work because of back, knee and shoulder pain and limitations, as well as depressive and anxious features. AR at 12-14. Plaintiff contends that the final decision of the ALJ is in error because the ALJ gave greater weight to the opinions of non-examining medical experts over examining medical experts. Pl Mot (Doc # 12).

  II

  The court's jurisdiction is limited to determining whether the SSA's denial of benefits is supported by substantial evidence in the administrative record. 42 U.S.C. § 405(g). A district court may overturn a decision to deny benefits only if the decision is not supported by substantial evidence or if the decision is based on legal error. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir 1995); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir 1989). The Ninth Circuit defines "substantial evidence" as "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." Andrews, 53 F.3d at 1039. Determinations of credibility, resolution of conflicts in medical testimony and all other ambiguities are to be resolved by the ALJ. See id; Magallanes, 881 F.2d at 750. The decision of the ALJ will be upheld if the evidence is "susceptible to more than one rational interpretation." Andrews, 53 F.3d at 1040.

  III

  A

  The Act provides that certain individuals who are disabled shall receive disability benefits. 42 U.S.C. § 423(a)(1)(D). Disability is the "inability to do 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 12 months." 42 U.S.C. § 423(d)(2)(A). An individual will be found disabled if his impairments are such "that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy * * *." Id.

  B

  Plaintiff contends that he is disabled under the Act and that the ALJ erred by giving greater weight to the opinions of the non-examining medical experts instead of the opinions of the examining medical experts. Pl Mot (Doc # 12). Although the opinions of examining medical experts are normally entitled to greater weight than the opinions of non-examining medical experts, the ALJ may still rely on the non-examining expert's opinion. Andrews, 53 F.3d at 1037. Further, the ALJ can reject the opinions of examining, non-treating physicians, in favor of non-examining, non-treating physicians, if the ALJ provides specific, legitimate reasons for so doing and those reasons are supported by substantial evidence. Id.

  1

  Plaintiff first alleges that the ALJ erred in giving greater weight to the non-examining psychiatrists' opinions than to the opinions of the examining psychiatrist, Dr Howard. The ALJ, however, provided specific and legitimate reasons for discounting Dr Howard's opinions. The ALJ states that Dr Howard's opinion "merits little weight, as it is not compatible with the examination in view of the high average range of intelligence and normal memory, attention, concentration, insight, and judgment." AR at 14. The ALJ reasoned that Dr Howard's opinion that plaintiff "may" have difficulty dealing with normal work stress and interacting with coworkers and the public is not supported by the results of Dr Howard's examination. AR at 14. The ALJ made specific references to Dr Howard's report and provided reasons for affording the report little weight.

  The ALJ's decision to afford little weight to Dr Howard's opinion is supported by substantial evidence. The findings from plaintiff's intelligence test and the clinical examination provide little support for Dr Howard's opinion that plaintiff "may" have difficulties handling stress or interacting with others. Plaintiff exhibited normal memory and concentration, was fully alert and oriented and was cooperative during the evaluation. AR at 186. Dr Howard further stated that there is no psychological basis for plaintiff to have difficulties dealing with supervision, maintaining regular attendance or performing simple tasks. AR at 187-188. The ALJ reasonably determined that the results of the examination did not support Dr Howard's findings.

  Further, the ALJ pointed out that plaintiff denied receiving mental health or psychiatric treatment prior to the February 11, 2000, examination. AR at 14. Plaintiff provided no other evidence that he had severe mental impairments during the relevant time period. The lack of evidence of severe mental impairments prior to the February 11, 2000, examination, combined with Dr Howard's inconsistent findings, supports the ALJ's conclusion that plaintiff did not have a severe mental impairment.

  Moreover, even if the ALJ accepted Dr Howard's opinion regarding plaintiff's limitations, the limitations do not satisfy the Act's definition of a severe impairment. 20 C.F.R. § 404.1521(a). "An impairment * * * is not severe if it does not significantly limit your physical or mental ability to do basic work activities." Id. Dr Howard's opinion regarding plaintiff's limitations does not lead to the conclusion that plaintiff's mental impairment is severe.

  In sum, the ALJ properly explained his reasons for affording Dr Howard's opinion little weight, and the ALJ's findings were based on substantial evidence in the record. Based on the lack of objective findings to support Dr Howard's opinions, the ALJ was justified in relying on the opinions and findings of fact by the state agency psychiatric consultants, who separately reviewed the evidence and concluded that plaintiff's mental impairments were not severe. See Andrews, 53 F.3d at 1037.

  2

  Plaintiff also alleges that the ALJ improperly afforded greater weight to the opinions of the non-examining physicians instead of to the opinion of the examining physician, Dr Stone. The ALJ gave Dr Stone's opinion "minor weight in light of its inconsistency with the examination given straight leg raising, the absence of obvious weakness in shoulders, thighs, or upper arms, and the normal range of motion, reflexes, sensation, strength, and gait." AR at 14. The ALJ made specific references to Dr Stone's report, and the ALJ's references accurately reflect the physical examination findings made by Dr Stone.

  The ALJ's decision to give little weight to Dr Stone's opinion is supported by substantial evidence. Dr Stone stated that plaintiff had the following limitations: (1) lift or carry twenty pounds occasionally and ten pounds frequently; (2) stand or walk for two to four hours; and (3) sit continuously for six hours. AR at 159. Dr Stone's opinion regarding plaintiff's limitations finds little support in the results of plaintiff's physical examination. Dr Stone opined that the physical examination was normal, except for plaintiff's obesity and fingernail surgery, and found no evidence of musculoskeletal abnormalities, weakness in the shoulders, thighs or upper arms, or impaired reflexes, strength or sensation. AR at 159.

  Dr Stone also stated that, despite plaintiff's normal physical examination, plaintiff's "history of back problems" would restrict plaintiff's lifting, carrying, standing, walking and sitting abilities. AR at 159. Considering the lack of objective findings to support Dr Stone's opinion, and the fact that Dr Stone reviewed only plaintiff's pain questionnaire, Dr Stone's statement suggests that her opinion is based only on plaintiff's subjective complaints. The ALJ considered plaintiff's assertions regarding his limitations and found them not to be "fully credible." AR at 13. When an individual's subjective complaints are contradicted and found not fully to be credible, a physician's repetition of the complaints likewise is not credible. Barker v. Sec of Health and Human Svcs, 882 F.2d 1474, 1477 (9th Cir 1989).

  The ALJ was reasonable in finding plaintiff's credibility to be questionable. For the ALJ to reject plaintiff's subjective complaints, the ALJ must provide "specific, cogent reasons for the disbelief." Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir 1990). The reasons provided by the ALJ are specific and supported by substantial evidence. The ALJ stated that there are discrepancies between plaintiff's statements and the medical evidence. The ALJ reviewed the reports from the examining experts and other evidence, including: (1) the results of EKGs performed on November 10, 1997, and January 7, 2000, which were normal (AR at 13, 115, 162); (2) a progress note from the San Francisco Department of Public Health ("SFDPH") dated November 13, 2000, which showed no evidence of tachyarrhythmia (AR at 212); (3) a progress note from San Francisco General Hospital Medical Center ("SFGHMC") dated April 8, 1999, which showed full range of motion of plaintiff's right shoulder (AR at 139); (4) and a report dated October 30, 2000, in which the SFDPH reported that plaintiff had full range of motion on forward bending (AR at 212A). The ALJ thus provided a specific reason for rejecting plaintiff's assertions and relied on substantial evidence to reach that conclusion. Accordingly, the ALJ's determination that plaintiff's assertions are not fully credible is sufficient to support the rejection of his complaints. See Lester v. Chater, 81 F.3d 821, 834 (9th Cir 1996). Further, the ALJ's finding regarding plaintiff's credibility justifies the ALJ's decision to give Dr Stone's opinion little weight.

  Based on the lack of objective findings to support Dr Stone's opinions, the ALJ properly relied on the opinions and findings of fact by the non-examining physicians, who separately concluded that plaintiff's mental impairments were not severe. See Andrews, 53 F.3d at 1037. The non-examining physicians reviewed the objective evidence and concluded that plaintiff's limitations were as follows: (1) lift or carry fifty pounds occasionally; (2) lift or carry twenty-five pounds frequently; (3) stand or walk six hours per day; (4) sit six hours per day; (5) and push or pull for an unlimited amount of time. AR at 165. Based on these conclusions, the ALJ reasonably determined that plaintiff could return to his past relevant work as a computer technician, which requires that plaintiff lift twenty-five pounds frequently. AR at 14-15.

  In sum, the ALJ properly explained his reasons for affording greater weight to the non-examining medical expert's opinions, and the ALJ's findings were based on substantial evidence in the record. The court finds no basis for granting plaintiff's motion for summary judgment or for remanding the case.

  IV

  For the foregoing reasons, the court affirms the ALJ's decision to deny benefits. Accordingly, the court DENIES plaintiff's motion for summary judgment (Doc # 12) and GRANTS defendant's motion for summary judgment (Doc # 16).

  IT IS SO ORDERED.

  JUDGMENT IN A CIVIL CASE

  () Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.

  (X) Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.

  IT IS SO ORDERED AND ADJUDGED that judgment is entered in favor of defendant.

20040528

© 1992-2004 VersusLaw Inc.



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