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 HECTOR N. GAMEZ
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 March 30, 2004, made pursuant to Title II of the Social Security Act, for disability insurance benefits (DIB), in which he alleged that he had been disabled since June 9, 2003, due to low back injury. (A.R. 140-43.) 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 Lawrence J. O'Neill filed November 18, 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) Christopher Larsen, dated July 25, 2008 (A.R. 14-21), rendered after a hearing held on June 24, 2008, at which Plaintiff appeared by video and testified with the assistance of a non-attorney representative. (A.R. 14, 61-91).*fn1
The Appeals Council denied Plaintiff's request for review of ALJ Larsen's decision on September 11, 2008 (A.R. 6-8), and thereafter Plaintiff filed his complaint in this Court on October 27, 2008. Briefing commenced on June 25, 2009, and was completed with the filing of Defendant's responsive brief on July 21, 2009. The matter has been submitted without oral argument to the Magistrate Judge.
The Court has subject matter jurisdiction pursuant to 42 U.S.C. § 405(g), which provides that individuals may obtain judicial review of a final decision of the Commissioner of Social Security by initiating a civil action in the district court within sixty days of the mailing of the notice of decision. Plaintiff timely filed his complaint on October 27, 2008, less than sixty days after the mailing of the notice of decision on or about September 11, 2008.
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 (9 th 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 (9 th 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 (9 th 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 (9 th 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 (9 th 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, 20 C.F.R. § 404.1520;*fn2 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, 20 C.F.R. § 404.1520(c); 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, 20 C.F.R. § 404.1520(d); 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, 20 C.F.R. §§ 404.1520(e), 404.1545(a); 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, 20 C.F.R. § 404.1520(f).
The ALJ found that Plaintiff had severe impairments of lumbar spine osteoarthritis, lumbar spine degenerative disk disease, hypertension, and obesity, but Plaintiff had no impairment or combination of impairments that met or medically equaled a listed impairment. (A.R. 16-17.) Plaintiff retained the residual functional capacity (RFC) to lift and carry twenty pounds occasionally and ten pounds frequently; stand and walk or sit a total of about six hours of an eight-hour workday; and occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs, but never climb ladders, ropes, or scaffolds. (A.R. 17.) Plaintiff could not perform his past relevant work, but because he was a younger individual (forty-five years old on the date of alleged disability onset, and fifty as of October 2007) with at least a high school education, the ability to communicate in English, and the aforementioned RFC, there were jobs that existed in significant numbers in the national economy because Plaintiff's non-exertional limitations did not significantly reduce the range of light jobs that Plaintiff could otherwise perform. (A.R. 19-20.) Accordingly, Plaintiff was not disabled at any time from June 9, 2003, through the date of decision. (A.R. 20-21.)
C. Plaintiff's Contentions
Plaintiff argues that the ALJ failed to credit, or to state legally sufficient reasons for rejecting, the opinion of the examining, psychological expert, Dr. Lessenger, who diagnosed borderline intellectual functioning, and the ALJ thereby erroneously found at step two of the sequential analysis that Plaintiff's mental impairment or impairments were not severe, and at step five that Plaintiff could perform the work activity identified by the ALJ. Plaintiff further contends that at step three, in connection with determining Plaintiff's physical RFC, the ALJ failed to state clear and convincing reasons for rejecting the more recent opinion of Dr. Wolney, a treating physician, and for adopting the outdated opinion of a non-examining physician; further, the ALJ's finding concerning Plaintiff's RFC was not supported by substantial evidence. Accordingly, Plaintiff seeks remand for an award of benefits or, in the alternative, remand for correction of legal errors.
On June 9, 2003, Plaintiff suffered an injury while lifting or pushing a very heavy object while working as a maintenance electrician. (A.R. 352.) Findings of Dr. Kian Moini, treating physician, on June 12, 2003, were mild; the diagnosis was lumbosacral spine strain. (A.R. 348-49.) On June 16, 2003, Plaintiff was cleared to return to modified work with no lifting, pulling, or pushing over ten pounds, and no repetitive bending, stooping, or twisting. (A.R. 344-46.) Plaintiff exhibited tenderness in the lumbosacral area with muscle spasms, with some pain and limitations during testing of range of motion. (A.R. 344-45.) Plaintiff experienced only slight improvement. On June 24, 2003, his treating physician examined Plaintiff and noted generally mild findings; the diagnosis was lumbosacral spine strain with subjective complaints far outweighing objective findings; accordingly, a MRI scan was recommended. (A.R. 341-42.)
In June 2003, a MRI scan of the lumbar spine revealed that Plaintiff had congenitally narrow AP diameter of the lumbar spinal canal; a ventral and left-sided disc protrusion at L3-4 and facet hypertrophy resulting in moderate, left-sided foraminal stenosis and mild to moderate central canal stenosis; mild canal stenosis and bilateral foraminal stenosis at L4-5 and L2-3; and mild canal stenosis at L1-2. (A.R. 354-55.)
In July 2003, consulting examiner Brian S. Grossman, M.D., examined Plaintiff and evaluated him orthopedically at the request of Dr. Cho after reviewing Plaintiff's medical history. (A.R. 272-78.) Plaintiff complained of low back pain, popping in various areas of his spine, tingling and numbness in the buttocks area, low back pain when coughing or sneezing, and very limited range of motion in the low back. Plaintiff stood without evidence of list and with normal lumbar lordosis and thoracic kyphosis; gait was normal without apparent limp or weakness, with ability to toe-walk and heel-walk without difficulty. Plaintiff could flex forward to reach the thighs with the fingertips with lack of reversal of lumbar lordosis; lumbar extension was five per cent of normal, and right and left lateral flexion were ten per cent of normal, all with increased pain in the back. Plaintiff had 5/5 motor function of the hips and extremities bilaterally, intact light touch throughout sensory exam, negative straight-leg raising both seated and supine bilaterally, full hip range of motion bilaterally, negative Faber and Patrick's test bilaterally, and tenderness in the lumbosacral midline without muscle spasm. Imaging studies of the lumbar spine showed all vertebrae present with normal lumber lordosis, coronal alignment within normal limits, and well-maintained vertebral body heights and disc heights at all levels. There was no evidence of spondylolisthesis or spondylolysis. The MRI of the lumber spine taken June 26, 2003, reflected facet joint enlargement at L2-3, L3-4, and L4-5, with minimal disc bulges and mild central and bilateral foraminal stenosis at those levels; L1-2 and L5-S1 were normal. Dr. Grossman wrote:
Functional capacity evaluation performed at Pair and Marotta on 7/2/2003 reveals an 18% whole body impairment with valid results. Reliability profile indicates a few non-organic signs present as well as very poor effort or voluntary submaximal effort which is not necessarily related to pain, impairment or disability. (A.R. 275.) Dr. Grossman's diagnosis was lumbar strain and mild facet enlargement with small disc bulges at L2-3, L3-4 and L4-5 with mild central and foraminal stenosis. (Id.) He concluded that the lumbar MRI findings were mild and that the prognosis for resolution of symptoms with additional conservative care (physical therapy and oral anti-inflammatory medication) was good. Plaintiff could work and lift no more than approximately twenty-five pounds with no more than occasional bending and stooping. (A.R. 275.)*fn3
In August 2003, in connection with a worker's compensation claim, Plaintiff's primary treating physician, Dr. Russell W. Nelson, M.D., an orthopedic surgeon, performed an orthopedic evaluation of Plaintiff, who was working four hours a day at the time. Plaintiff complained of constant pain in his middle and low back with occasional radiating weakness and numbness from the low back down into both legs, and with pain increasing with bending or being in one position for a long period of time. (A.R. 312-17.) Plaintiff had local lumbar paraspinous tenderness and muscle tightness, no extension, flexion to fifty degrees, and lateral bending to ten degrees, with minimal rotations; hamstrings were severely tight bilaterally; there was no significant localizing sciatica, and foot dorsiflexion was trace positive right, with intact hip, knee, and ankle motion and intact reflexes in the knees and ankles; and motor and sensory exam were intact with Babinski's downgoing bilaterally. Plain films revealed good disc height with no signs of significant spurring and with short pedicles in the mid-lumbar region. Dr. Nelson's diagnosis was lumbar disc bulge with stenosis, L3-4; lesser, L4-5. He opined that the work injury ...