The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
DECISION AND ORDER DENYING PLAINTIFF'S SOCIAL SECURITY COMPLAINT
ORDER DIRECTING THE ENTRY OF JUDGMENT FOR DEFENDANT MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, AND AGAINST PLAINTIFF BOUAPHAN PHETCHUMPORN
Plaintiff is proceeding in forma pauperis and with counsel with an action seeking judicial review of a final decision of the Commissioner of Social Security (Commissioner) denying Plaintiff's application of May 2, 2006,*fn1 made pursuant to Title XVI of the Social Security Act, for Supplemental Security Income (SSI), in which he alleged he had been disabled since April 1, 1990, due to emotional problems, angering easily, sleeping disorders, nightmares, depression, forgetfulness, and lower back pain. (A.R. 12, 81-93, 82.) The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1), and pursuant to the order of Judge Anthony W. Ishii filed on October 22, 2008, the matter has been assigned to the Magistrate Judge to conduct all further proceedings in this case, including entry of final judgment.
The decision under review is that of Social Security Administration (SSA) Administrative Law Judge (ALJ) Bert C. Hoffman, Jr., dated March 20, 2008 (A.R. 12-18), rendered after a hearing held on December 18, 2007, at which Plaintiff appeared and testified with the assistance of a Laotian interpreter and an attorney. (A.R. 12, 33-52).
The Appeals Council denied Plaintiff's request for review of the ALJ's decision, and thereafter it extended time for Plaintiff to file a civil action until approximately November 8, 2008. (A.R. 2-3.) Plaintiff filed the complaint in this Court on September 23, 2008. Plaintiff's amended opening brief was filed on August 27, 2009, and Defendant's responsive brief was filed on September 11, 2009. Briefing was completed with the filing of Plaintiff's reply brief on September 24, 2009. The matter has been submitted without oral argument to the Magistrate Judge.
The Court has jurisdiction over the subject matter of this action pursuant to 42 U.S.C. §§ 1383(c)(3) and 405(g), which provide that an applicant suffering an adverse final determination of the Commissioner of Social Security with respect to SSI benefits after a hearing may obtain judicial review by initiating a civil action in the district court within sixty days of the mailing of the notice of decision. Title 20 C.F.R. § 422.210 provides that the Appeals Council is authorized to extend the time for filing a civil action for judicial review of a decision of the Commissioner. Plaintiff timely filed his complaint on September 23, 2008, within the period of extended time granted by the Appeals Council for filing the action.
II. Standard and Scope of Review
Congress has provided a limited scope of judicial review of the Commissioner's decision to deny benefits under the Act. In reviewing findings of fact with respect to such determinations, the Court must determine whether the decision of the Commissioner is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence means "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a preponderance, Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 1975). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. The Court must consider the record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion; it may not simply isolate a portion of evidence that supports the decision. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).
It is immaterial that the evidence would support a finding contrary to that reached by the Commissioner; the determination of the Commissioner as to a factual matter will stand if supported by substantial evidence because it is the Commissioner's job, and not the Court's, to resolve conflicts in the evidence. Sorenson v. Weinberger, 514 F.2d 1112, 1119 (9th Cir. 1975).
In weighing the evidence and making findings, the Commissioner must apply the proper legal standards. Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must review the whole record and uphold the Commissioner's determination that the claimant is not disabled if the Commissioner applied the proper legal standards, and if the Commissioner's findings are supported by substantial evidence. See, Sanchez v. Secretary of Health and Human Services, 812 F.2d 509, 510 (9th Cir. 1987); Jones v. Heckler, 760 F.2d at 995. If the Court concludes that the ALJ did not use the proper legal standard, the matter will be remanded to permit application of the appropriate standard. Cooper v. Bowen, 885 F.2d 557, 561 (9th Cir. 1987).
In order to qualify for benefits, a claimant must establish that she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 416(i), 1382c(a)(3)(A). A claimant must demonstrate a physical or mental impairment of such severity that the claimant is not only unable to do the claimant's previous work, but cannot, considering age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. 1382c(a)(3)(B); Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The burden of establishing a disability is initially on the claimant, who must prove that the claimant is unable to return to his or her former type of work; the burden then shifts to the Commissioner to identify other jobs that the claimant is capable of performing considering the claimant's residual functional capacity, as well as her age, education and last fifteen years of work experience. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).
In order to qualify for benefits, a claimant must establish that she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 1382c(a)(3)(A). A claimant must demonstrate a physical or mental impairment of such severity that the claimant is not only unable to do the claimant's previous work, but cannot, considering age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. 1382c(a)(3)(B); Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The burden of establishing a disability is initially on the claimant, who must prove that the claimant is unable to return to his or her former type of work; the burden then shifts to the Commissioner to identify other jobs that the claimant is capable of performing considering the claimant's residual functional capacity, as well as her age, education and last fifteen years of work experience. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).
The regulations provide that the ALJ must make specific sequential determinations in the process of evaluating a disability: 1) whether the applicant engaged in substantial gainful activity since the alleged date of the onset of the impairment, 2) whether solely on the basis of the medical evidence the claimed impairment is severe, that is, of a magnitude sufficient to limit significantly the individual's physical or mental ability to do basic work activities; 3) whether solely on the basis of medical evidence the impairment equals or exceeds in severity certain impairments described in Appendix I of the regulations; 4) whether the applicant has sufficient residual functional capacity, defined as what an individual can still do despite limitations, to perform the applicant's past work; and 5) whether on the basis of the applicant's age, education, work experience, and residual functional capacity, the applicant can perform any other gainful and substantial work within the economy. See 20 C.F.R. § 416.920.*fn2
The ALJ found that Plaintiff had medically determinable impairments of low back pain and an adjustment disorder, but Plaintiff had no impairment or combination of impairments that significantly limited or was expected to limit significantly his ability to perform basic, work-related activities for twelve consecutive months; therefore, Plaintiff did not have a severe impairment or combination of impairments. (A.R. 14.) Accordingly, Plaintiff was not under a disability since May 2, 2006. (A.R. 18.)
C. Plaintiff's Contentions
Plaintiff argues that the ALJ failed to provide sufficient credibility findings with a statement of clear and convincing reasons. Plaintiff contends that the treatment record, Plaintiff's statements to consultative examiners, and observations of third parties were consistent with Plaintiff's subjective complaints. The ALJ improperly relied on the absence of objective medical evidence in making his credibility findings.
Further, with respect to the medical evidence, Plaintiff argues that the opinions of Dr. Spindell and the state agency physician, relied upon by the ALJ, did not constitute substantial evidence.
Patient database notes from the office of V.S. Kaleka, M.D., reflect treatment of Plaintiff from 2002 through 2007, with visits of frequency varying from three to six visits annually. (A.R. 156-57.) The notes reflect diagnoses of depression, PTSD, and arthritis in March 2002, with treatment in the form of medications through July 2004. (A.R. 157.) In September 2004, diagnoses of depression, PTSD, and arthritis are recorded, with treatment by medication from 2004 through 2007. (A.R. 156, 186.) Progress notes from Dr. Kaleka's office reflect gaps with treatment periods from September 2004 through September 2006, and between January and November 2007, in which Plaintiff visited about every two months. (A.R. 150-55, 183-86.) On one occasion, no notes were made. (A.R. 155.) On the other occasions, essentially the same notations were made, including pain, tenderness, and stiffness in the joints, muscles, and low back; insomnia; depression; anxiety; guilt feeling; changes in mood; nightmares; and anxious/depressed mood or affect. The impression was depression, PTSD, arthritis, IFG, asthma, and anemia in 2007. (A.R. 150-54, 183-86.) In 2004 and 2006, the impressions were depression, arthritis, asthma, and PTSD. (A.R. 183-86.) The records reflect that Plaintiff saw a physician's assistant, with a signature by a medical doctor in 2004. (A.R. 186.) In 2007, there were initials of an M.D., but the capacity or involvement of the doctor is unclear. (A.R. 150-54.) The records from Dr. Kaleka's office do not reflect any assessment of Plaintiff's functional capacities.
On August 24, 2006, consulting examiner Dr. Rustom F. Damania, M.D., who was board-eligible in internal medicine, evaluated Plaintiff, who complained of localized, non-radiating body and back pain that was not associated with paresthesias and did not change on coughing or sneezing. (A.R. 194-97.) This had a gradual onset and had been experienced for six years. (A.R. 194.) Plaintiff also complained of chronic pain in the left foot where a bullet went through his foot; he had experienced this since the war. (A.R. 194.) His medications were Prozac, Atarax, and Remeron. He reported doing no household chores.
Plaintiff was in no acute distress or discomfort; he was well-built and well-nourished. Pulse was seventy and regular, and blood pressure was 110 over seventy. He was very cooperative and pleasant; he answered questions and followed instructions. The physical exam was essentially normal. The joints of the upper and lower extremities were all normal. Gross ranges of motions were normal; there was no ankylosis, deformities, contractures, or subluxations; and there were no signs of acute or chronic inflammation such as tenderness, swelling, crepitations, or redness. The hands were dirty, and there were multiple callouses. (A.R. 195.) Cervical, thoracic, and lumboscral spine were normal with normal range of motion. Gait, reflexes, full squat, and coordination were normal; power was grade 5/5 in both upper and lower extremities; there was no motor or sensory deficiency; and Romberg was negative. (A.R. 196.) The diagnosis was low back pain by history with no clinical evidence of radiculopathy. (A.R. 196.) Dr. Damania opined that Plaintiff should be able to lift and carry fifty pounds occasionally and twenty-five pounds frequently, stand and walk for six hours, and sit without restriction without any further limitations and with no need to use any assistive devices for ambulation. (A.R. 196.)
In September 2006, Plaintiff's blood glucose was high, and hematocrit and hemoglobin were low. (A.R. 176-77.)
On September 15, 2006, consulting psychologist William A. Spindell, Ph.D., reviewed background data and examined Plaintiff in the course of completing a psychological disability evaluation. (A.R. 188-93.) He administered the Bender Gestalt II and TONI-III. Plaintiff reported that he was a father of six who had farmed in Laos and Thailand; he lived in Fresno, where he performed light household activities, did a little farming, took care of whatever he could, and was the non-legal ward of his six children. He tried to do some vegetable work, and his hands clearly showed some "outside wear." An adult daughter cooked and shopped. He watched TV aimlessly, was relatively isolated, had no friends, and communicated only occasionally with an uncle. (A.R. 188.) Plaintiff reported having been exposed to a variety of chemicals in Laos, Thailand, and the San Joaquin Valley. He reported serious musculoskeletal pain in the low back, left leg injury, heart problems, and depression with non-specific complaints. He seemed to be able to understand and carry out one-step and two-step instructions. He had worked until a car accident eight to nine years before.
Plaintiff ambulated reasonably well but slowly. He was appropriately dressed and poorly groomed. He had written language, but it was Laotian. His affect was flat, but he did not appear to be overly depressed. He made poor eye contact and volunteered little information. He could copy drawings with a pencil and look at figures and say what was missing without evidence of pressured speech or neologisms. Remote and recent memory functions were meager but within normal limits. (A.R. 188-89.) The result on the Bender Visual Motor Gestalt II was in the normal zone, with a global score estimated to be about twenty-six, without evidence of angulation, rotation, perseveration, or fragmentation; the profile was not neurologically impaired. (A.R. 189.) On the TONI III, the quotient was calculated at eighty-three, or in the ...