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Teodoro B. Banawa v. Michael J. Astrue

January 19, 2011


The opinion of the court was delivered by: Honorable Barry Ted MoskowitzUnited States District Judge


Plaintiff and Defendant have filed cross-motions for summary judgment. For the reasons set forth below, Plaintiff's motion is DENIED and Defendant's motion is GRANTED.


On September 27, 2004, Plaintiff filed an application for a period of disability and disability insurance benefits, alleging disability since September 10, 2004. Plaintiff's application was denied initially and on reconsideration. On Spetember 12, 2006, Plaintiff's claim was heard by Administrative Law Judge David L. Wurzel (the "ALJ"). On August 7, 2007, the ALJ issued a decision denying benefits. (Tr. 11-25.) Plaintiff filed a request for review with the Appeals Council, which was denied. The ALJ's decision then became the final decision of the Commissioner of Social Security. Plaintiff seeks judicial review of the Commissioner's decision pursuant to 42 U.S.C. §405(g).


The ALJ found that Plaintiff was fully and currently insured for disability insurance benefits on his alleged onset date of September 10, 2004, and remained insured through the date of the ALJ's decision.

The ALJ found that Plaintiff has the following medically determinable impairments that in combination are considered "severe": obstructive sleep apnea, with excellent compensation on CPAP; moderate degenerative joint disease and levoscoliosis, lumbosacral spine, and mild/Grade 1 retrolisthesis of L3 upon L4; very mild degenerative joint disease, both knees; benign positional vertigo; tinnitus and sensorineural hearing loss, both ears, with excellent speech discrimination bilaterally; bilateral presbyopia and cataract, left eye only, best corrected visual acuity 20/20 right and 20/20 left in February 2006; chronic sinusitis; mild obstructive and reactive pulmonary disease; small external hemorrhoid; and nonsevere seborrheic dermatitis at the hairline.

The ALJ concluded that Plaintiff's impairment or combination of impairments do not meet or equal any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.

The ALJ determined that Plaintiff has the residual functional capacity to perform work activity at the light exertional level, with the following non-exertional limitations: never climbing ladders, ropes or scaffolds; never balancing, kneeling, or crawling; occasionally climbing ramps and stairs; occasionally stooping and crouching; no driving on the job; avoiding concentrated exposure to dangerous moving machinery, electric shock, radiation, and unprotected heights; avoiding concentrated exposure to loud work environments; avoiding all jobs requiring keen hearing; and avoiding all jobs requiring sharp visual acuity in both eyes.

Based on the testimony of a vocational expert ("VE"), the ALJ found that Plaintiff could perform his past relevant work as a payroll clerk, as generally done in the national economy. Accordingly, the ALJ concluded that Plaintiff has not been under a "disability" as defined in the Social Security Act, at any time from his alleged onset date of September 10, 2004, through the date of the ALJ's decision. *fn1


The Commissioner's denial of benefits may be set aside if it is based on legal error or is not supported by substantial evidence. Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997). Substantial evidence is more than a scintilla but less than a preponderance. Id. Substantial evidence is "relevant evidence which, considering the record as a whole, a reasonable person might accept as adequate to support a conclusion." Flatten v. Secretary of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995).


Plaintiff contends that the ALJ's decision was erroneous because the ALJ (1) improperly rejected the opinions of Plaintiff's treating physicians; (2) failed to provide sufficient reasons for discrediting Plaintiff's pain and symptom testimony; (3) failed to give full consideration to the statements of Plaintiff's wife; (4) failed to afford proper weight to or adequately reject the Vereran's Administration's disability rating of Plaintiff; and (5) erroneously relied on the testimony of the VE without obtaining a reasonable explanation for an apparent conflict between the VE's testimony and the information provided in the Dictionary of Occupational Titles. As discussed below, the Court is not persuaded by any of Plaintiff's arguments.

A. Rejection of Treating Physicians' Opinions

1. Opinions of Plaintiff's Treating Physicians

a. Dr. Loredo

Dr. Jose Loredo has been Plaintiff's treating pulmonologist since 2000. In a letter dated September 17, 2004, Dr. Loredo wrote that Plaintiff has been followed at the San Diego VA hospital for obstructive sleep apnea since June of 2000, and explained that despite Plaintiff's compliance with CPAP therapy, Plaintiff has developed severe excessive daytime somnolence. (Tr. 337.) "From his clinical history, it is possible that Mr. Banawa may have developed periodic limb movement during sleep syndrome, a condition that may result in sleep fragmentation and severe daytime somnolence. This condition is currently being diagnosed. I would appreciate [it] if you could assist Mr. Banawa in his quest to obtain financial help due to his disability, since his condition is preventing him from holding full time gainful employment."

On October 18, 2004, Dr. Loredo filled out a "doctor's certificate" in support of Plaintiff's claim for state disability. (Tr. 253.) On the form, Dr. Loredo indicated that Plaintiff's disability began on September 10, 2004, and was expected to last until March 10, 2005. Dr. Loredo listed the primary disease as "periodic limb movement in sleep," and explained that Plaintiff suffered from "persistent debilitating daytime sleepiness despite adequate treatment of obstructive sleep apnea. History of leg movements during sleep." Dr. Loredo further explained: "Patient is finding it difficult to stay awake while driving, which his job requires. Has stopped driving - medical work up is under way."

In a letter dated September 1, 2006, Dr. Loredo stated that despite excellent control of Plaintiff's obstructive sleep apnea, as confirmed by a polysomnogram and CPAP titration conducted on November 5, 2004, and a home sleep study performed on June 1, 2006, Plaintiff continued to complain of excessive daytime somnolence. (Tr. 500.) "Mr. Banawa remains severely limited by persistent excessive daytime somnolence of unclear etiology,that has prevented him from holding full time gainful employment." Dr. Loredo concluded: "It is unclear why Mr. Banawa continues to have such significant daytime somnolence despite excellent control of his sleep apnea. Our sleep disorders work up over the last few years has not suggested other sleep disorders, other than obstructive sleep apnea. We continue to work with Mr. Banawa in an effort to ameliorate his symptoms."

On a form dated September 22, 2006, Dr. Loredo noted that Plaintiff was diagnosed with "obstructive sleep apnea - severe" and "persistent daytime somnolence despite adequate therapy." (Tr. 547.) In response to questions regarding whether Plaintiff had the ability to perform work at a consistent pace for 8 hours and complete a normal workday and workweek without interruptions from physical symptoms, Dr. Loredo stated that Plaintiff has trouble "maintaining alertness due to sleepiness," "has difficulty staying awake during monotonous tasks," and "will have trouble working in a job that requires constant vigilance." In response to a question regarding Plaintiff's ability to work without needing more than one 5 minute break per hour, Dr. Loredo stated: "[B]reak periods are not needed - patient has trouble maintaining alertness." Dr. Loredo indicated that Plaintiff had moderate limitations with respect to his ability to maintain attention and concentration for extended periods ...

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