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Tucker v. Astrue

January 23, 2009

GEORGIA D. TUCKER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Jennifer T. Lum United States Magistrate Judge

MEMORANDUM OPINION AND ORDER PROCEEDINGS

On April 30, 2008, Georgia D. Tucker ("plaintiff") filed a Complaint seeking review of the Social Security Administration's denial of her application for Supplemental Security Income benefits and Disability Insurance Benefits. On May 8, 2008, plaintiff filed a Consent to Proceed Before United States Magistrate Judge Jennifer T. Lum. On August 26, 2008, Michael J. Astrue, Commissioner of Social Security ("defendant"), filed a Consent to Proceed Before United States Magistrate Judge Jennifer T. Lum. Thereafter, on October 27, 2008, defendant filed an Answer to the Complaint. On December 29, 2008, the parties filed their Joint Stipulation.

The matter is now ready for decision.

BACKGROUND

On July 1, 2005, plaintiff filed applications for Disability Insurance Benefits and Supplemental Social Security Income benefits alleging an onset date of April 21, 2001. (See Administrative Record ["AR"] at 85, 87-90, 91-95). The Commissioner denied plaintiff's applications for benefits both initially and upon reconsideration. (AR at 35, 36, 37, 38). Thereafter, plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR at 66).

On October 26, 2007, the ALJ conducted a hearing in San Bernardino, California. (See AR at 10-34). Plaintiff appeared at the hearing with counsel and testified. (AR at 10, 12-29). Corinne Porter, a vocational expert, also testified at the hearing. (AR at 29-34). On November 30, 2007, the ALJ issued a decision denying benefits to plaintiff. (AR at 42-50). In his decision, the ALJ determined that plaintiff had the following severe impairments: a disorder of the cervical spine and a disorder of the lumbar spine. (AR at 44). The ALJ determined that plaintiff did not have an impairment or combination of impairments that meet or equal the criteria contained in the Commissioner's Listing of Impairments, 20 C.F.R. Section 404, Subpart P, Appendix 1. (AR at 44-45). The ALJ determined that plaintiff retained the residual functional capacity to perform a significant range of sedentary work.*fn1 (AR at 45). The ALJ determined that plaintiff's statements concerning the impact of her impairments on her ability to work were not entirely credible given the inconsistency in her statements and the inconsistency between her exaggerated symptoms of pain and the activity level she described to the consultative examiners, her minimal and conservative medical treatment, and the lack of objective findings supporting her allegations. (AR at 45-48). The ALJ also rejected the opinion of plaintiff's treating physician, Dr. Viet Dao, regarding plaintiff's physical residual functional capacity as unsupported by his conservative and minimal treatment records, inconsistent with plaintiff's own admitted activities and limitations, and as internally contradictory. (AR at 48). The ALJ further determined that plaintiff had not alleged or credibly established any mental impairment and, thus, plaintiff does not have a severe mental impairment. (Id.). Given plaintiff's age, education, work experience and residual functional capacity, the ALJ determined that plaintiff was unable to perform her past relevant work, but otherwise could perform jobs existing in significant numbers in the national economy, including the jobs of small items assembly person, production inspector and ticket checker. (AR at 49-50). Accordingly, the ALJ concluded that plaintiff was not disabled from April 21, 2001, the alleged disability onset date, through the date of his decision. (AR at 42, 50). The Appeals Council denied plaintiff's timely request for review of the ALJ's decision. (See AR at 2-4).

Thereafter, plaintiff appealed to the United States District Court.

PLAINTIFF'S CONTENTIONS

Plaintiff makes the following claims:

1. The ALJ failed to properly consider Dr. Dao's opinion regarding plaintiff's osteoarthritis of the spine.

2. The ALJ failed to properly consider Dr. Dao's opinion regarding plaintiff's multiple physical and mental limitations regarding her ability to do work related activities.

3. The ALJ failed to fully and fairly develop the record regarding Dr. Dao's opinions regarding plaintiff's multiple mental and physical limitations.

4. The ALJ failed to properly consider plaintiff's testimony and make proper ...


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