The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION AS MODIFIED Doc. No. 12
On May 16, 2008, Plaintiff filed, after exhausting his administrative remedies, the present complaint for judicial review of the denial of Social Security disability benefits pursuant to 42 U.S.C. § 405(g). (Doc. No. 1.) Plaintiff asks this court to reverse the decision to deny benefits, or in the alternative to remand the matter for a new administrative determination. Plaintiff also seeks costs and fees.
The parties filed cross-motions for summary judgment, which were referred to the Honorable Peter C. Lewis, United States Magistrate Judge. Pending before the court is the Report and Recommendation ("R&R") of Judge Lewis, advocating the denial of Plaintiff's motion and granting of Defendant's motion. (Doc. No. 12.) Plaintiff filed no objections to the R&R. After reviewing the R&R, the record in this matter, and the applicable authorities, the court hereby ADOPTS the R&R AS MODIFIED herein.
The court hereby incorporates by reference the factual background, procedural background, and the review of the Administrative Record as presented in the R&R, with the following clarifications and additions. (R&R at 2-9.)
Although the R&R mentions Plaintiff claimed he became disabled in 1991, his application was reviewed by the Administrative Law Judge ("ALJ") with an eye toward the relevant start date of March 1, 2004, the date Plaintiff filed his application. It also appears from the record that Plaintiff was incarcerated for much of the time leading up to the review period, and for some portion thereof. In particular, Plaintiff was in custody from at least 1997 to June of 2002, again from August 2003 to early 2004, and finally from June 2005 until early 2006. Although some of the prison medical records were created during the review period, the R&R does not discuss them. The court finds this omission appropriate because none of Plaintiff's arguments directly target the findings or treatments included therein. However, where the medical evidence from Plaintiff's prison records either supports or contradicts the ALJ's decision, the court refers to such evidence in the following discussion.
The duties of the district court in connection with a magistrate judge's R&R are governed by Federal Rule of Civil Procedure Rule 72(b) and 28 U.S.C. § 636. The district court "shall make a de novo determination of those portions of the report . . . to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 676 (1980); McDonnell Douglas Corp. v. Commodore Bus. Machines, Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). "If neither party contests the magistrate's proposed findings of fact, the court may assume their correctness and decide the motion on the applicable law." Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate's conclusions of law are reviewed de novo, regardless of whether any party filed objections thereto. See Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
As described by the R&R, the district court is obliged to review the Commissioner's decision to determine whether (1) it is based on proper legal standards under 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Copeland v. Bowen, 861 F.2d 536, 538 (9th Cir. 1998) (citing Desrosiers v. Sec. of Health and Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988)). The "substantial evidence" threshold is met with "more than a mere scintilla of evidence," Richardson v. Perales, 402 U.S. 389, 401 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir. 1975).
Plaintiff advances five separate arguments in his motion for summary judgment: (1) the ALJ failed to consider Plaintiff's Hepatitis C infection as a severe impairment which created functional limitations; (2) the ALJ gave inadequate weight to the opinion of examining physician, Dr. Vinay Gowda, and medical consultant, Dr. John Meek, which found Plaintiff needed "medical use of a cane" to walk long distances; (3) the ALJ failed to grant controlling weight to the opinions of Plaintiff's treating physician, Dr. Facika Tafara, or to reject those opinions through specific findings based on the record; (4) the ALJ failed to develop the record with respect to Plaintiff's ability to perform the duties of his past work as a janitor; and (5) the ALJ improperly discounted Plaintiff's allegations of disabling pain.
1. Plaintiff's Hepatitis C Infection
Plaintiff contends the ALJ failed to consider Plaintiff's Hepatitis C infection as a substantial impairment at Step Two of the sequential evaluation. The R&R concludes that, because there was no indication Plaintiff even knew he had the disease, and claimed no adverse effects from it, the ALJ had no duty to develop the record further or to consider the infection as a source of disability. The court agrees and adopts the R&R's analysis and conclusions on this issue. Additionally, the court notes Plaintiff mischaracterizes the record with respect to any possible functional limitations caused by the infection. First, Plaintiff suggests the medical expert, Dr. Sami Nafoosi, characterized Hepatitis C as "a severe impairment" and his conclusion was uncontradicted in the record. (Mot. at 4.) However, Dr. Nafoosi said only that Plaintiff's "impairments" included the infection, but clarified that none of his conditions, either alone or in combination, warranted a listing in terms of severity or duration. (A.R. at 589.) Second, while Plaintiff tries to tie the food handling restrictions imposed on him while in prison between August 2003 and June 2005 to his infection, the record clearly reveals the restrictions stemmed from his well-documented seizure chrono. (A.R. at 442 et seq.) Third, Plaintiff argues the weakness and lethargy he complained of on one day in September 2000 (A.R. at 529) showed he was impaired by the infection. (Mot. at 5.) Yet, after his positive Hepatitis C test in ...