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Elizarraz v. Astrue

November 16, 2010


The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge


Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's application for disability insurance benefits and Supplemental Security Income ("SSI") benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

The parties have stipulated to the following summary of the procedural facts.[See JS 2]. On February 27, 2007, plaintiff filed applications for disability insurance benefits and SSI benefits. [Administrative Record ("AR") 103]. Plaintiff alleged disability due to carpel tunnel syndrome; lumbar and cervical disc disease with radiculopathy; diabetes type II; hypertension; degenerative joint disease of the knees, anxiety, and arthritis. [AR 104]. The Commissioner denied the application at the initial and reconsideration stages. [AR 64].

On January 6, 2009, a hearing was conducted by an Administrative Law Judge (the "ALJ"). [AR 19]. On February 3, 2009, the ALJ denied plaintiff's applications in a written hearing decision. [AR 17].

The ALJ made the following findings. Plaintiff suffered from severe impairments consisting of leg edema; arthralgia and arthritis with chronic back pain and right lower extremity numbness; and obesity. Her impairments, however, did not meet or equal a listed impairment. Plaintiff's subjective complaints were not fully credible. She retained the residual functional capacity ("RFC") to perform sedentary work, with occasional pushing, pulling, lifting and reaching with the right upper extremity, and could occasionally use foot controls with the right lower extremity. Plaintiff could not climb ladders, ropes or scaffolds, but she could occasionally climb ramps or stairs. She could occasionally balance, stoop, kneel, and crouch, but not crawl. Plaintiff could occasionally walk on uneven ground, and could use a hand-held device for prolonged ambulation, when walking on uneven terrain, or ascending and descending slopes. She could occasionally perform gross manipulation with the right upper extremity. She must avoid all exposure to hazardous machinery, unprotected heights, and other high-risk, hazardous or unsafe conditions. Plaintiff's RFC did not preclude her from performing her past relevant work as a collection clerk. [AR 13-16].

Accordingly, the ALJ concluded that plaintiff was "not disabled" at any time through the date of his decision. [AR 17]. On June 5, 2009, the Appeals Council denied plaintiff's request for review of the ALJ's decision. [AR 1, 6].

Standard of Review

The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm'r Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Soc. Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld."

Thomas, 278 F.3d at 954 (citing Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)).


Treating physician's opinion Plaintiff contends that the ALJ erred in rejecting the opinions of her treating physician, Charlie Chan, M.D. [See JS 4-10].

Progress notes in the record indicate that Dr. Chan treated plaintiff from June 2006 through November 24, 2008. During the hearing in January 2009, plaintiff testified that she continued to see Dr. Chan, her family doctor, every month or every other month. [AR 37]. The progress reports from Dr. Chan indicate that plaintiff saw him for intermittent complaints of pain and swelling in the right knee, swelling of the feet, headache, left shoulder pain, neck pain, and a rash. Dr. Chan also treated her for type-2 diabetes, hypertension, hyperlipidimia, elevated creatinine, anemia, and diabetes. Dr. Chan prescribed medication, including, in various combinations, the anti-inflammatory naproxen, Tylenol 500 milligrams four times a day as needed for pain; the diabetes medications metformin, Amaryl (glimepiride), and Actos (pioglitazone); and the anti-hypertensive medications losartan, benazepril, Norvasc (anlodipine) and Maxzide (triamterene and hydrochlorothiazide). He also advised plaintiff to exercise and to adhere to a low-fat, low-sodium, 1800 calorie-per-day diet. [See AR 302-372].

On November 24, 2008, Dr. Chan completed a "Physical Residual Functional Capacity Questionnaire." [AR 374-377]. Dr. Chan stated that plaintiff had diagnoses of diabetes mellitus, hypertension, hyperlipidimia, obesity, right knee pain, and lower back pain. [AR 374]. He described her subjective symptoms as knee pain, headache, back pain, tiredness, body ache, pain, and dizziness. [AR 374]. He said that plaintiff had "sharp" pain located in the knees and lower back pain that was present every day and was precipitated by walking. Dr. Chan rated plaintiff's pain as a "7" on a 1-through-10 scale. [AR 374]. Asked to identify clinical findings and objective signs supporting his diagnosis, prognosis, and description of plaintiff's symptoms and resulting limitations, Dr. Chan wrote "no limitation of knee pain with movement, hard to get up and get down due to back pain, use cane to walk due to knee pain." [AR 374]. Regarding plaintiff's treatment and response, Dr. Chan noted that plaintiff currently was taking "Tylenol, losartan, Amaryl, ASA ...

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