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David Hernandez v. Michael J. Astrue

January 10, 2011


The opinion of the court was delivered by: David T. Bristow United States Magistrate Judge


Plaintiff filed a complaint ("Complaint") on May 13, 2009 seeking review of the Commissioner's denial of his application for supplemental security income benefits. In accordance with the previously-assigned Magistrate Judge's Case Management Order, the parties filed a Joint Stipulation on January 11, 2010. Thus, this matter now is ready for decision.*fn1


As reflected in the Joint Stipulation, the disputed issues here are as follows:

1. Whether the Administrative Law Judge ("ALJ") properly developed the record regarding plaintiff's upper extremity impairments and resulting limitations. (Jt Stip 3.)

2. Whether the ALJ properly considered plaintiff's subjective complaints and assessed his credibility. (Jt Stip 10.)


I. Reversal is not warranted based on the ALJ's alleged failure to properly develop the record.

Plaintiff contends that the ALJ failed in his duty to develop the record regarding plaintiff's "upper extremity impairments and resulting limitations." (Jt Stip 3.) Plaintiff further contends that the ALJ improperly based his residual functional capacity ("RFC") assessment regarding his upper extremity limitations on a consultative examiner's report that was almost two years old at the time of the decision instead of obtaining medical expert testimony at the hearing or requesting a follow-up consultative examination. (Jt Stip 5-6.)

The claimant bears the burden of proving a disability and must provide medical evidence demonstrating the existence and severity of an alleged impairment. 20 C.F.R. § 416.912(c); Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001) (as amended). Nonetheless, the ALJ has a special duty to fully and fairly develop the record and to assure that the claimant's interests are considered, and that this duty exists even when the claimant is represented by counsel. See Brown v. Heckler, 713

F.2d 441, 443 (9th Cir. 1983) (per curiam); see also Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). An ALJ's duty to augment an existing record is triggered "only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence." Mayes, 276 F.3d at 459-60 (citation omitted); see also 20 C.F.R. § 416.927(c)(3).

Plaintiff argues that the ALJ failed to properly develop the record regarding his upper extremity impairments and limitations given "the totality of evidence." (Jt Stip 5.) However, the record before the ALJ was neither ambiguous nor inadequate to allow for proper evaluation of the evidence. The ALJ had adequate evidence to evaluate plaintiff's testimony regarding his upper extremity impairments and substantial evidence supported the ALJ's decision. The medical evidence in the record was simply insufficient to support plaintiff's allegations relating to the severity of his upper extremity limitations. The medical records that plaintiff provided did not support a finding that his upper extremity impairments prevented him from working. The majority of the medical records relating to upper extremity complaints only referenced cellulitis and a hand sprain. (See, e.g., AR 165 (December 2003 x-ray of right elbow normal), 181 (August 2003 diagnostic image of left hand showed soft tissue swelling with normal alignment and no fractures), 199 (July 2002 hand cellulitis), 200 (June 2002 hand pain level decreased), 201 (May 2002 hand cellulitis), 218 (May 2002 wrist infection), 219 (May 2002 hand cellulitis), 281 (February 2007 minimum swelling), 343 (May 2002 mild cellulitis), 351 (May 2002 left wrist sprain), 353 (June 2002 cellulitis resolved), 457 (August 2007 tingling and pain in upper and lower extremities, but treating physician only noted lower extremity diffuse swelling on observation).) Further, although there is a February 2007 treatment note referencing acute monoarticular arthritis of the right hand, this is the only note regarding this issue and there are no follow-up notes. (See AR 429-30.)

The ALJ's RFC assessment finding that plaintiff can lift up to ten pounds occasionally, less than ten pounds frequently, and is precluded from constant use of his hands also is supported by the examining orthopaedic consultant's March 2007 finding that plaintiff's upper extremity use was not limited, despite plaintiff's allegations of pain. (AR 296, 300.) An examining physician's opinion constitutes substantial evidence when, as here, it is based on independent clinical findings. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). The orthopaedic consultant, Dr. Thomas R. Dorsey, reviewed plaintiff's medical records, interviewed plaintiff, and examined plaintiff before opining on plaintiff's functional limitations. (AR 296-301.) Despite plaintiff's argument that the consultative examiner's report was outdated, plaintiff never asked the ALJ to consider ordering a further examination, nor has he cited any evidence indicating that the report was no longer accurate or outdated. Further, as noted by the ALJ, the State agency consultants' opinions were consistent with Dr. Dorsey's opinion regarding plaintiff's lack of upper extremity limitations. (AR 14; see also AR 305 (Dr. G.G. Spellman's April 2007 opinion), 320 (Dr. T.N. Do's June 2007 opinion).) See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (A non-examining physician's opinion constitutes substantial evidence when it is supported by other evidence in the record and is consistent with it.).

Moreover, plaintiff was afforded ample opportunity to submit additional medical records in support of his claim prior to the administrative hearing. (See, e.g., AR 76.) He also was advised to contact the ALJ if he needed help securing medical evidence, including the issuance of a subpoena. (Id.) Indeed, even on appeal, plaintiff has not pointed to any medical evidence demonstrating any effect his upper extremity impairments have on his ability to work. See Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008) (affirming finding that carpal tunnel syndrome ...

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