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Learnaham v. Astrue

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 1, 2010

SCOTT WARNER LEARNAHAM, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") partially denying plaintiff's application for Disability Insurance Benefits under Title II of the Social Security Act ("Act").*fn1 (Dkt. No. 17.) In his motion for summary judgment, plaintiff alleges that the Administrative Law Judge ("ALJ") erred by finding that plaintiff was "disabled" only as of February 11, 2008, and not as of October 5, 2005, the date plaintiff contends is warranted by the medical opinion provided by one of plaintiff's treating physicians, Dr. Bradley Jones. Specifically, plaintiff alleges that the ALJ improperly rejected portions of Dr. Bradley's medical opinion "without explanation or rationale." The Commissioner filed an opposition to plaintiff's motion and a cross-motion for summary judgment. (Dkt. No. 18.)

For the reasons that follow, the court will deny plaintiff's motion for summary judgment, grant the Commissioner's cross-motion for summary judgment, and direct the Clerk of Court to enter judgment in favor of the Commissioner.

I. BACKGROUND*fn2

Plaintiff was 47 years old on the alleged disability onset date, and was 50 years old at the time that the ALJ's entered his decision partially granting plaintiff's application for Disability Insurance Benefits. (See Administrative Transcript ("AT") 20.) Plaintiff attended high school through the tenth grade and obtained a GED while serving in the United States Navy. (AT 45.) Plaintiff previously worked as an ordnance supervisor in the Navy, a warehouse employee, and a cemetery groundskeeper/landscaper. (AT 20, 45, 47-50, 114-17.) On or about August 2, 2005, plaintiff, who was then employed as a groundskeeper, ceased working due to increasing low back pain that caused shooting pain down his legs and trouble with walking. (AT 46-47, 50, 54.) Plaintiff's back condition ultimately resulted in two surgeries. (AT 50-51, 54.)

A. Procedural Background

On July 10, 2006, plaintiff filed an application for Disability Insurance Benefits alleging a disability onset date of August 2, 2005. (AT 87-91.) The Social Security Administration denied plaintiff's application initially and upon reconsideration. (AT 67-68.) Plaintiff filed a request for a hearing before an ALJ, and the ALJ conducted a hearing regarding plaintiff's claim on June 16, 2008. (AT 40-66, 83.) Plaintiff, who was represented by counsel at the hearing, testified at the hearing. A vocational expert also testified at the hearing.

In a decision dated September 17, 2008, the ALJ granted plaintiff's application in part, concluding that plaintiff was not disabled until his fiftieth birthday, or February 11, 2008. (See AT 15-22.) As discussed below, the ALJ determined that plaintiff was able to perform jobs that existed in significant numbers in the national economy until his fiftieth birthday, but that upon turning 50 years old, plaintiff was considered disabled by direct application of Medical-Vocational Rule 201.14.*fn3 (AT 21-22.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. (AT 1-3.) Plaintiff subsequently filed this action.

B. Summary of the ALJ's Findings

The ALJ conducted the required five-step, sequential evaluation and concluded that plaintiff was disabled within the meaning of the Act, but only as of February 11, 2008. (AT 22.) At step one, the ALJ concluded that plaintiff had not engaged in substantial gainful activity since August 2, 2005, the alleged date of onset. (AT 17.) At step two, he concluded that plaintiff had the "severe" impairment of "degenerative disc disease." (AT 17.) At step three, the ALJ found that plaintiff's did not have an impairment or combination of impairments that met or medically equaled any impairment listed in the applicable regulations. (AT 17.)

The ALJ next assessed plaintiff's residual functional capacity ("RFC"). The ALJ found that:

[T]he claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 4040.1567(a) except that he can lift, carry, push, and pull 15 pounds occasionally, and 10 pounds frequently. The claimant can sit for 8 hours, and stand and walk for 2 hours, in 30 minute increments, in an 8 hour day. The claimant cannot use foot pedals. He can occasionally perform activities requiring overhead reaching, stooping, crouching, and kneeling.

(AT 17-18.)*fn4 In reaching this conclusion, the ALJ also discounted plaintiff's statements regarding the intensity, persistence, and limiting effects of his symptoms or impairments as not fully credible.*fn5 (AT 19.)

At step four, the ALJ found that plaintiff's RFC precluded plaintiff from performing his past relevant work as a munitions supervisor or landscape gardener. (AT 20.) At step five, the ALJ drew a distinction between the period when plaintiff was age 47 through 49, or a "younger individual" under the age categories provided in the applicable regulations, and when plaintiff turned 50 years old and thus became "an individual closely approaching advanced age." (AT 20.) As to the former period, the ALJ found, relying on the testimony of the vocational expert, that plaintiff could perform work as a "cashier II," an "information clerk," and a document preparer, jobs which existed in significant numbers in the national economy. (AT 21.) However, the ALJ concluded that once plaintiff turned 50 years old, Medical-Vocational Rule (also referred to as a Medical-Vocational Guideline) 201.14 directed a finding that plaintiff was disabled.*fn6 (AT 22.) Accordingly, the ALJ found plaintiff disabled as of February 11, 2008, and partially granted plaintiff's application for benefits.

II. STANDARDS OF REVIEW

The court reviews the Commissioner's decision to determine whether it is (1) free of legal error, and (2) supported by substantial evidence in the record as a whole. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009); accord Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). This standard of review has been described as "highly deferential." Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). "'Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)); accord Valentine, 574 F.3d at 690 (citing Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988)). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews, 53 F.3d at 1039; see also Tommasetti, 533 F.3d at 1041 ("[T]he ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence."). Findings of fact that are supported by substantial evidence are conclusive. 42 U.S.C. § 405(g); see also McCarthy v. Apfel, 221 F.3d 1119, 1125 (9th Cir. 2000). "Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's." Bray, 554 F.3d at 1222 (citing Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir.2007)); see also Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) ("'Where evidence is susceptible to more than one rational interpretation,' the ALJ's decision should be upheld.") (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). However, the court "must consider the entire record as a whole and may not affirm simply by isolating a 'specific quantum of supporting evidence.'" Ryan, 528 F.3d at 1198 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); accord Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007).

III. ANALYSIS

Plaintiff's challenge to the ALJ's decision is relatively limited. He contends that the ALJ adopted some portions of Dr. Jones's medical opinion, provided in June 2008, regarding plaintiff's functional limitations, but selectively rejected other portions "without any explanation or rationale." (Pl.'s Mot. for Summ. J. at 6.) The Commissioner disagrees and contends that the ALJ specifically rejected portions of Dr. Jones's opinion in favor of functional limitations provided in a medical opinion offered by Dr. James Vogus, another treating physician, in May 2008. (Def.'s Mot. for Summ. J. at 4-6.) Plaintiff did not file a reply brief.

The medical opinions of three types of medical sources are recognized in social security cases: "(1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining physicians)." Lester, 81 F.3d at 830. Generally, a treating physician's opinion should be accorded more weight than opinions of doctors who did not treat the claimant, and an examining physician's opinion is entitled to greater weight than a non-examining physician's opinion. Id. Where a treating or examining physician's opinion is uncontradicted by another doctor, the Commissioner must provide "clear and convincing" reasons for rejecting the treating physician's ultimate conclusions. Id. If the treating or examining doctor's medical opinion is contradicted by another doctor, the Commissioner must provide "specific and legitimate" reasons for rejecting that medical opinion, and those reasons must be supported by substantial evidence in the record. Id. at 830-31; accord Valentine, 574 F.3d at 692. "'The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating [her] interpretation thereof, and making findings.'" Tommasetti, 533 F.3d at 1041 (quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). "The ALJ is responsible for determining credibility and resolving conflicts in medical testimony." Magallanes, 881 F.2d at 750; see also Burkhart v. Bowen, 856 F.2d 1335, 1339-40 (9th Cir. 1988) (affirming where the ALJ carefully detailed arguably conflicting clinical evidence and provided reasons for crediting one treating physician's opinion over another treating physician).

As noted above, the ALJ formulated the following RFC for plaintiff: [T]he claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 4040.1567(a) except that he can lift, carry, push, and pull 15 pounds occasionally, and 10 pounds frequently. The claimant can sit for 8 hours, and stand and walk for 2 hours, in 30 minute increments, in an 8 hour day. The claimant cannot use foot pedals. He can occasionally perform activities requiring overhead reaching, stooping, crouching, and kneeling. (AT 17-18.) Plaintiff contends that this RFC runs afoul of the Medical Source Statement, which was completed by Dr. Jones on June 6, 2008. (AT 312-15.) Plaintiff contends, although with minimal elaboration, that the ALJ: (1) failed to adopt Dr. Jones's assessment that plaintiff could sit for a maximum of only two hours in a seven-hour workday; (2) "ignored the 1 hour resting;" (3) "ignored the preclusion of posturals by the doctor;" and (4) ignored the onset date of plaintiff's limitations, which Dr. Jones estimated to be October 5, 2005. (Pl.'s Mot. for Summ. J. at 6.)

As an initial matter, plaintiff's contention that the ALJ rejected the limitations stated in Dr. Jones's Medical Source Statement "without any explanation or rationale" is misleading and incorrect. The ALJ specifically noted Dr. Jones's June 2008 Medical Source Statement in the section of his decision discussing plaintiff's medical history (AT 19), and expressly rejected portions of Dr. Jones's opinion that contradicted the RFC assessment:

The Administrative Law Judge note [sic] that the only contradiction to this conclusion, appears to be the opinion of a physician who in June 2008, submitted a statement suggesting that the claimant can sit for 2 hours, in an 8 hour day (Exhibit 10F). However, given the claimant's statements at the hearing, and the lack of objective findings that support this limitation, the Administrative Law Judge rejects this opinion.

(AT 20.) Thus, the ALJ provided an explanation for rejecting portions of Dr. Jones's Medical Source Statement, and plaintiff's assertion to the contrary lacks support.*fn7

Turning to the ALJ's rejection of parts of Dr. Jones's Medical Source Statement, the undersigned notes that Dr. Jones's assessment of plaintiff's functional limitations is partially contradicted by Dr. Vogus's May 2008 medical opinion and, accordingly, the ALJ was obligated to provide only specific and legitimate reasons for rejecting Dr. Jones's opinions. Dr. Vogus, another of plaintiff's treating physicians, opined, in part, that plaintiff could stand/walk with normal breaks for at least two hours in an eight-hour day, and sit continuously with normal breaks for eight hours in an eight-hour workday, but "must alternate" positions.*fn8 (See AT 319.)

Turning to plaintiff's specific claims of error with respect to the rejection of portions of Dr. Jones's Medical Source Statement, the undersigned concludes that the ALJ did not commit error. The ALJ properly discussed the conflicting evidence and credited one opinion over another opinion of equal weight.

First, the ALJ did not err in crediting Dr. Vogus's opinion that plaintiff was able to sit for up to eight hours if provided the option to alternate positions, over Dr. Jones's opinion that plaintiff could sit for a maximum of two hours. The ALJ set out a thorough summary of the facts and conflicting clinical evidence, stated his interpretation of that evidence, and made findings. He discussed Dr. Vogus's and Dr. Jones's opinions regarding plaintiff's ability to stand, walk, and sit in an eight-hour day. (AT 18-19.) He noted the contradictory nature of these physicians' respective opinions as to sitting tolerance. (AT 20.) The ALJ rejected Dr. Jones's opinion based on a lack of objective findings in support of a two-hour maximum sitting tolerance. (AT 20.) And the ALJ specifically stated that "the record . . . reveals that given the opportunity to change position as needed, that claimant is able to sit for at least 6 hours in a work day." (AT 20; see also AT 19 (stating in a discussion of plaintiff's credibility that "the record does not contain any objective findings which reflect that if given the opportunity to change position, the claimant can not [sic] for up to 6 hours, in an 8 hour day").) The ALJ also noted that the record revealed no serious neurological involvement, muscle wasting, or atrophy usually associated with pain and inactivity. (AT 20.) The ALJ's conclusion is supported by substantial evidence in the record, and the ALJ appropriately resolved a conflict in the medical evidence.

Second, the ALJ did not err by ignoring "the 1 hour resting" period noted in Dr. Jones's opinion. As a factual matter, Dr. Jones did not opine that plaintiff required a one-hour rest break in an eight-hour workday. He stated that plaintiff required a total cumulative rest period, where plaintiff could lie down or recline in a supine position, of "<1 hr"="" (i.e.,="" less="" than="" one="" hour)="" in="" an="" eight-hour="" workday.="" (at="" 313.)="" moreover,="" dr.="" jones's="" statement="" indicates="" that="" although="" plaintiff="" would="" require="" less="" than="" one="" hour="" of="" total="" rest="" during="" an="" eight-hour="" workday,="" "a="" morning="" break,="" lunch="" period,="" and="" an="" afternoon="" break="" scheduled="" at="" approximately="" two-hour="" intervals="" is="" sufficient."="" (at="" 313.)="" as="" the="" commissioner="" points="" out,="" plaintiff's="" need="" for="" rest="" is="" accommodated="" by="" the="" normal="" morning="" break,="" lunch="" break,="" and="" afternoon="" break="" to="" which="" workers="" performing="" sedentary="" work="" are="" entitled.="" see="" soc.="" sec.="" ruling="" ("ssr")="" 96-9p="" (july="" 2,="" 1996)="" ("in="" order="" to="" perform="" a="" full="" range="" of="" sedentary="" work,="" an="" individual="" must="" be="" able="" to="" remain="" in="" a="" seated="" position="" for="" approximately="" 6="" hours="" of="" an="" 8-hour="" workday,="" with="" a="" morning="" break,="" a="" lunch="" period,="" and="" an="" afternoon="" break="" at="" approximately="" 2-hour="" intervals.");="" soc.="" sec.="" admin.,="" program="" operations="" manual="" system="" ("poms")="" §="" di="" 24510.005(c)(2)="" ("consider="" an="" 8-hour="" workday="" and="" a="" 5="" day="" work="" week="" (with="" normal="" breaks,="" e.g.,="" lunch,="" morning="" and="" afternoon="" breaks)="" in="" evaluating="" the="" ability="" to="" sustain="" work-related="" functions"="" (emphasis="" omitted).),="" available="" at="" https://secure.ssa.gov/apps10/poms.nsf/lnx/0424510005!opendocument="" (last="" visited="" august="" 26,="" 2010)="" (copy="" on="">*fn9

Third, the Commissioner correctly argues that the ALJ did not commit reversible error to the extent that he did not expressly incorporate Dr. Jones's statements regarding plaintiff's postural limitations. Dr. Jones indicated that plaintiff could occasionally balance "when standing/walking," and selected the response "Rarely/None" in reference to plaintiff's ability to stoop.*fn10 (AT 314.) The ALJ's RFC stated that plaintiff could "occasionally perform activities requiring overhead reaching, stooping, crouching, and kneeling." (AT 18.) Even assuming that the ALJ erred by finding that plaintiff could stoop "occasionally" and by not specifically explaining why he rejected Dr. Jones's opinion that plaintiff could stoop rarely or never, such error would be harmless because sedentary work requires infrequent stooping. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008).*fn11

Fourth, the ALJ did not err by "ignoring" the date of onset, October 5, 2005, offered by Dr. Jones in his Medical Source Statement. The ALJ adopted Dr. Jones's opinions regarding plaintiff's functional limitations that were supported by the record, properly rejected others, and concluded that plaintiff was not disabled until his fiftieth birthday. Because the ALJ's decision is supported by substantial evidence and free of legal error, the date of onset offered by Dr. Jones is not by itself indicative of any functional limitation. Accordingly, the ALJ did not need to specifically address the date of onset assigned by Dr. Jones.

IV. CONCLUSION

For the reasons stated above, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for summary judgment (Dkt. No. 17) is denied.

2. The Commissioner's cross-motion for summary judgment (Dkt. No. 18) is granted.

3. The Clerk of Court enter judgment in favor of the Commissioner.

IT IS SO ORDERED.


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