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Getchel v. Astrue

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION


August 6, 2009

SUZANNE GETCHEL, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, DEFENDANT.

The opinion of the court was delivered by: Carla M. Woehrle United States Magistrate Judge

DECISION AND ORDER

The parties have consented, under 28 U.S.C. § 636(c), to the jurisdiction of the undersigned magistrate judge. Plaintiff seeks review of the denial of disability benefits. The court finds that judgment should be granted in favor of defendant, affirming the Commissioner's decision.

I. BACKGROUND

Plaintiff Suzanne Getchel was born on March 24, 1947, and was sixty-one years old at the time of her administrative hearing. [Administrative Record ("AR") 6, 9.] She has two years of college education and past relevant work experience as a teacher's aide. [AR 9.] Plaintiff alleges disability on the basis of severe headaches and multiple work-related injuries to her neck, shoulders, arms, back and legs. [AR 45.]

II. PROCEEDINGS IN THIS COURT

Plaintiff's complaint was lodged on November 12, 2008, and filed on November 19, 2008. On July 13, 2009, defendant filed an answer and plaintiff's Administrative Record ("AR"). On June 26, 2009, the parties filed their Joint Stipulation ("JS") identifying matters not in dispute, issues in dispute, the positions of the parties, and the relief sought by each party. This matter has been taken under submission without oral argument.

III. PRIOR ADMINISTRATIVE PROCEEDINGS

Plaintiff applied for a period of disability and disability insurance benefits ("DIB") under Title II of the Social Security Act on April 5, 2007, alleging disability since December 22, 2005. [AR 30, 107.] After the application was denied initially and on reconsideration, plaintiff requested an administrative hearing, which was held on July 30, 2008, before Administrative Law Judge ("ALJ") Kevin M. McCormick. [AR 6-24.] Plaintiff appeared with counsel, and testimony was taken from plaintiff and vocational expert Aida Worthington. [AR 7.] The ALJ denied benefits in a decision dated August 21, 2008. [AR 30-37.] When the Appeals Council denied review on September 19, 2008, the ALJ's decision became the Commissioner's final decision. [AR 1-3.]

IV. STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The Commissioner's (or ALJ's) findings and decision should be upheld if they are free of legal error and supported by substantial evidence. However, if the court determines that a finding is based on legal error or is not supported by substantial evidence in the record, the court may reject the finding and set aside the decision to deny benefits. See Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). "Substantial evidence is more than a scintilla, but less than a preponderance." Reddick, 157 F.3d at 720. It is "relevant evidence which a reasonable person might accept as adequate to support a conclusion." Id. To determine whether substantial evidence supports a finding, a court must review the administrative record as a whole, "weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Id. "If the evidence can reasonably support either affirming or reversing," the reviewing court "may not substitute its judgment" for that of the Commissioner. Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162.

V. DISCUSSION

A. THE FIVE-STEP EVALUATION

To be eligible for disability benefits a claimant must demonstrate a medically determinable impairment which prevents the claimant from engaging in substantial gainful activity and which is expected to result in death or to last for a continuous period of at least twelve months. Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at 721; 42 U.S.C. § 423(d)(1)(A).

Disability claims are evaluated using a five-step test:

Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.

Step two: Does the claimant have a "severe" impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate.

Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? If so, the claimant is automatically determined disabled. If not, proceed to step four.

Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five.

Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled.

Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S.Ct. 2287, 96 L.Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 C.F.R. § 404.1520, § 416.920. If a claimant is found "disabled" or "not disabled" at any step, there is no need to complete further steps. Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520.

Claimants have the burden of proof at steps one through four, subject to the presumption that Social Security hearings are non-adversarial, and to the Commissioner's affirmative duty to assist claimants in fully developing the record even if they are represented by counsel. Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at 1288. If this burden is met, a prima facie case of disability is made, and the burden shifts to the Commissioner (at step five) to prove that, considering residual functional capacity ("RFC")*fn1 , age, education, and work experience, a claimant can perform other work which is available in significant numbers. Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920.

B. THE ALJ'S EVALUATION IN PLAINTIFF'S CASE

Here, the ALJ found that plaintiff had not engaged in substantial gainful activity since her alleged disability onset date (step one); that plaintiff had "severe" impairments, namely mild cervical spondylosis, a cervical strain, left C5-6 radiculopathy, diffuse osteopenia of the spine, a sprain of both shoulders, a contusion and sprain of the right knee, lateral epicondylitis of both elbows, moderate degenerative disc disease of the thoracic spine, moderate facet degeneration of the lumbar spine, a thorocolumbar strain and moderate degenerative changes of the acromioclaviular joint of both shoulders (step two); and that plaintiff did not have an impairment or combination of impairments that met or equaled a "listing" (step three). [AR 32.] The ALJ found that Plaintiff had an RFC for "light work which permits lifting and/or carrying 30 pounds occasionally and 15 pounds frequently; standing and walking for six hours out of an eight hour workday in two hour intervals with no limitation on sitting; occasional bending and stooping; with the left upper extremity, occasionally push and pull, frequent use of hand controls and tools, frequent simple gripping and frequent distal fine coordinate movements with the left hand and fingers; with the right upper extremity the claimant can frequently push and pull, frequent operation of hand controls, avoid using heavy power tools, frequent simple gripping and frequent distal fine coordinated movements with the right hand and fingers." [AR 32-33.] The vocational expert testified that a person with Plaintiff's RFC could perform Plaintiff's past relevant work as a teachers aide, as it is generally performed in the national economy (step four). [AR 36.] Accordingly, Plaintiff was found not "disabled" as defined by the Social Security Act. [Id.]

C. ISSUES IN DISPUTE

The parties' Joint Stipulation sets out the following disputed issues:

1. Whether the ALJ properly considered the opinion of the examining physician, Dr. Robert A. Moore;

2. Whether the ALJ posed a complete hypothetical question to the vocational expert based on Dr. Moore's opinion; and

3. Whether the ALJ properly determined that Plaintiff could return to her past relevant work.

[JS 2-3.]

D. DR. MOORE'S OPINION

In September 2007, Plaintiff underwent a Neurological Evaluation conducted by Dr. Robert A. Moore. [AR 222-26.] Plaintiff reported a "ten year history of symptomatology," including pain in her neck, left shoulder and lower back. Dr. Moore's review of Plaintiff's medical records included a September 2006 MRI scan revealing "2-3 mm discogenic lesions at C3 through C7," an MRI scan of the left shoulder revealing "supraspinatus tendinopathy on the left" and a November 2006 EMG revealing "some abnormalities in the left brachioradialis and biceps." [AR 223.] Plaintiff's medications included fluoxetine, Fosamax, Soma, atenolol and an estrogen supplement. [Id.]

Upon physical examination, Dr. Moore noted, among other things, that Plaintiff had tenderness in the left lower paracervical and trapezius muscles and minor tenderness over the lower paralumbar muscles without associated paralumbar muscle spasm. [AR 223-24.] Upon neurological examination, Dr. Moore noted, among other things, that Plaintiff was alert and oriented to person, place and time, that her speech was normal, and that she had a normal and spontaneous gait. [AR 224.] Dr. Moore diagnosed Plaintiff with mild cervical and lumbar spondylosis and tendinitis of the left shoulder and right elbow. [AR 225.]

For purposes of Plaintiff's functional capacity, Dr. Moore stated that in his opinion, Plaintiff could stand and walk for six hours out of an eight-hour workday, sit in an unrestricted manner, occasionally bend and stoop and operate foot controls. [AR 225.] However, with Plaintiff's left arm, "because of her neck and left shoulder, the claimant can only occasionally push and pull. She would have slight difficulty operating hand controls and using tools. She can perform frequent simple gripping and frequent distal fine coordinated movements with the left hand and fingers." As for Plaintiff's right arm, "because of her tendinitis of the right elbow, the claimant can frequently push and pull. She would have slight difficulty operating hand controls. She should avoid using heavy power tools. She can perform occasional to frequent simple gripping and frequent distal fine coordinated movements with the right hand and fingers." [Id.]

Dr. Moore's final determination was that Plaintiff could "intermittently left and carry 30 pounds and more frequently lift and carry 15 pounds." [AR 226.]

The ALJ found that Dr. Moore's opinion "is persuasive and is given the greatest weight in determining the claimant's residual functional capacity" because it was based on a physical examination and a review of the medical records and was corroborated by other medical evidence. [AR 35.] At the administrative hearing, the ALJ asked the vocational expert to refer to Dr. Moore's opinion and asked whether a person with the limitations set out by Dr. Moore, including "with the right upper extremity and perform occasional to frequent -- can perform up to frequent simple gripping and frequent distal fine coordinative movements with the right hands and fingers," could perform Plaintiff's past relevant work as it is either customarily or actually performed. [AR 17-18.] The vocational expert responded that such a person could perform Plaintiff's past relevant work as a teacher's aide as it was customarily, but not actually, performed. [AR 18.] The vocational expert also testified that a person with Plaintiff's limitations "should be able to perform that job using the right upper extremity [as] necessary." [AR 19.] Based on this vocational evidence, the ALJ found plaintiff not disabled. [AR 36.]

Plaintiff asserts that the ALJ's decision was not supported by substantial evidence because the ALJ disregarded Dr. Moore's opinion that Plaintiff was limited to "occasional to frequent simple gripping" with the right hand [JS 3 (Claim One)], failed to incorporate this limitation into the hypothetical question asked to the vocational expert [JS 8 (Claim Two)], and failed to account for the inconsistency between Plaintiff's limitation and the description of the teacher's aide job in the Dictionary of Occupational Titles ("DOT"), which calls for "frequent handling" [JS 11 (Claim Three)]. None of these claims has merit.

The record shows that the ALJ did credit all of Dr. Moore's limitations and accounted for them in the hypothetical question asked to the vocational expert. [AR 18.] Although the description of the limitation provided by Dr. Moore did not correspond exactly to the wording of the ALJ's RFC finding or to the hypothetical question asked of the vocational expert, the question did clearly account for a limitation to "occasional to frequent simple gripping" with the right hand and fingers; moreover, the ALJ requested that the vocational expert refer directly to Dr. Moore's opinion prior to answering the question. [Id.] Accordingly, the record indicates that the vocational expert was made aware of all of the limitations described by Dr. Moore before giving her testimony.

Plaintiff further argues that the ALJ disregarded the inconsistency between Dr. Moore's limitation of Plaintiff to "occasional to frequent simple gripping" of the right hand with the description of the teacher's aide position in the Dictionary of Occupational Titles (DOT 249.367-074: Teacher Aide II), which states that the job requires "frequent" handling. [JS 11.] However, the vocational expert explained that Plaintiff should be able to perform that job as it is generally performed using the right upper extremity as necessary. Moreover, the record does not suggest that Plaintiff is limited to less than frequent handling of all types with her right hand, given that Dr. Moore stated she could perform frequent distal fine coordinated movements with the right hand and fingers. Neither does the record indicate that Plaintiff has a significant limitation in her ability to perform handling with her left hand nor that her limitations derive primarily from her hands. Under these circumstances, this claim does not warrant reversal of the Commissioner's decision.

VI. ORDERS

Accordingly, IT IS ORDERED that:

1. The decision of the Commissioner is AFFIRMED.

2. This action is DISMISSED WITH PREJUDICE.

3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel.


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