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Pickett v. Astrue

March 2, 2008

MELVIN PICKETT, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Patrick J. Walsh United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Before the Court is Plaintiff's appeal of a decision by Defendant Social Security Administration ("the Agency"), denying his April 2005 applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Because the Agency's decision that Plaintiff was not disabled within the meaning of the Social Security Act is supported by substantial evidence, it is affirmed.

On April 9, 2004, Plaintiff applied for DIB and SSI benefits. (Administrative Record ("AR") 84.) On October 14, 2004, those applications were denied. (AR 84.) Plaintiff did not appeal.

On April 6, 2005, Plaintiff filed the current applications for DIB and SSI. In them, he alleged that he was disabled due to congestive heart failure, hypertension, and liver failure. (AR 77.)

The Agency denied the applications initially and on reconsideration. (AR 50-64.) Plaintiff then requested and was granted a hearing before an Administrative Law Judge ("ALJ"). On January 26, 2007, Plaintiff appeared with counsel at the hearing and testified. (AR 32-49.) On February 8, 2007, the ALJ issued a decision denying the application. (AR 9-22.) After the Appeals Counsel denied Plaintiff's request for review, (AR 4-7), he filed this action.

Plaintiff claims that the ALJ erred when he failed to properly consider: 1) treating doctor Allison Yee's opinion that Plaintiff suffered from a liver condition; 2) another treating doctor's opinion that Plaintiff had suffered liver failure; 3) an examining psychiatrist's opinion that Plaintiff suffered from mental limitations; and 4) the severity of Plaintiff's mental impairments at step two. For the reasons set forth below, the Court concludes that none of these claims warrants remand or reversal.

In his first claim, Plaintiff contends that the ALJ did not properly consider a finding by treating physician Dr. Allison Yee that Plaintiff suffered from "diffuse hyperechogenicity present throughout [Plaintiff's liver] that may suggest fatty infiltration or cirrhosis."*fn1 (AR 122.) Plaintiff argues that Dr. Yee's finding "established that Plaintiff does indeed have damage to his liver (cirrhosis) that will bear a significant impact on his ability to work." (Joint Stip. at 4.) Plaintiff points out that "people who have cirrhosis may experience symptoms when liver damage is extensive," such as edema, jaundice, or varices. (Joint Stip. at 3.) In Plaintiff's view, the ALJ was required to provide specific and legitimate reasons for disregarding Dr. Yee's opinion that he suffered from cirrhosis and his failure to do so necessitates remand. (Joint Stip. at 4.) For the following reasons, the Court disagrees.

First, Dr. Yee's evaluation was performed on February 10, 2004, two months before Plaintiff filed his first applications for DIB and SSI in April 2004, and ten months before the Agency denied those applications in October 2004. Thus, under the doctrine of res judicata, the ALJ was not required to reconsider the earlier finding of non-disability or Dr. Yee's findings that related to that period. Taylor v. Heckler, 765 F.2d 872, 876 (9th Cir. 1985).

Second, even were the Court to reach the merits of Plaintiff's claim, it would still conclude that the ALJ did not err. Dr. Yee's observation that the ultrasound "may suggest" that Plaintiff had a fatty liver and, perhaps, cirrhosis did not establish that he had a fatty liver or cirrhosis. It established that those possibilities were suggested. On July 3, 2005, Plaintiff underwent a series of blood tests to determine if he did suffer from these, or any other liver ailments, and the results established that he did not.*fn2 (AR 267.) In addition, Dr. Rocely Ella-Tamayo, a consultative doctor, performed an internal medicine evaluation of Plaintiff on July 2, 2005, and concluded that his condition was stable and that he had no significant functional impairments. (AR 15, 265.) Further, Dr. M. Charoenrath reviewed the medical records and determined, among other things, that there were no signs of liver failure. (AR 15, 300, 301, 305.) Thus, the medical record does not support Plaintiff's claim that he suffered from cirrhosis or a fatty liver.

Moreover, Plaintiff's argument that cirrhosis may cause complications (i.e., edema, jaundice, and varices) that could interfere with his ability to work misses the point. Though these complications might impact a claimant's ability to work, Plaintiff is not alleging that he experienced any of them. Nor is there any evidence that he did. Thus, they are irrelevant.

Ultimately, the Court concludes that the ALJ did not err with regard to Dr. Yee's work. He identified Dr. Yee and set forth her findings. (AR 15-16.) That was all that he was required to do (assuming that the Court overlooks the fact that res judicata bars reconsideration of Dr. Yee's opinion, which was formulated before Plaintiff's last claim for benefits was filed and denied). The ALJ was not required to set forth reasons for rejecting her opinion because nothing she said was inconsistent with the ALJ's findings. See Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (holding reasons are not required when there is no conflict between the ALJ's findings and the doctor's opinion). For these reasons, this claim is denied.

Plaintiff next contends that the ALJ erred by failing to discuss the opinion of another "treating physician" from Riverside County Regional Medical Center. (Joint Stip. at 7-8.) This doctor, whose signature is illegible, examined Plaintiff in December 2004 for lesions on his penis, scrotum, and perineum, and recommended treatment with liquid nitrogen. (AR 208.) The doctor described Plaintiff as:

"[Patient with congestive heart failure], liver failure, emphysema[.]" (AR 208.) Plaintiff claims that this notation amounts to a treating doctor's opinion that Plaintiff suffered from liver damage. He faults the ALJ for not addressing this opinion in his decision. (Joint Stip. at 8.) There is no merit to this claim.

This note, from an unidentified doctor who was treating Plaintiff for an acute outbreak of genital warts, does not constitute a treating doctor's opinion that Plaintiff suffered from liver failure. Clearly, it was noted in the context of Plaintiff's medical history and was, presumably, information provided by Plaintiff. (AR 208.) Further, the doctor did not perform any testing to analyze Plaintiff's liver function, nor was Plaintiff's visit intended to initiate such testing. Thus, the ALJ's failure to discuss this "opinion" does not amount to error. See, e.g., Ukolov v. Barnhart, 420 F.3d 1002, 1004-05 (9th Cir. 2005) (holding that ...


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