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Archie Gibson v. Michael J. Astrue

April 18, 2011


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 benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

Plaintiff filed his applications for benefits on December 13, 2007. [JS 2]. He alleged that he had been disabled since October 1, 2004 due to diabetes mellitus, vision problems, high blood pressure, a back injury, and a right shoulder injury. [JS 2].

In an April 2, 2010 hearing decision that constitutes the Commissioner's final decision in this matter, an administrative law judge ("ALJ") found that plaintiff had severe impairments consisting of diabetes mellitus and right shoulder impingement. [Administrative Record ("AR") 12]. The ALJ found that plaintiff retained the residual functional capacity ("RFC") to perform medium work, except that he is precluded from working at heights, climbing ladders, reaching above shoulder level with the right upper extremity, and working with heavy or moving machinery. [AR 13]. The ALJ found that plaintiff's RFC did not preclude him from performing his past relevant work as a security guard as actually or generally performed. Alternatively, the ALJ found that plaintiff could perform alternative work available in significant numbers in the national economy, such as the jobs of hand packager and linen room attendant. [AR 16-18]. Accordingly, the ALJ concluded that plaintiff was not disabled.

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. Social 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 Social Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)).


Nonexamining physician's opinion Plaintiff contends that the ALJ erred in rejecting a nonexamining state agency physician's opinion that plaintiff had severe visual limitations.

On a Physical Residual Functional Capacity form dated March 11, 2008, medical consultant Albert Lizarraras, M.D. checked boxes indicating that plaintiff could perform medium work without restrictions other than a visual limitation in "far acuity." [AR 265]. Dr. Lizarraras noted that plaintiff "should avoid jobs requiring good distance vision." [AR 265]. His report also noted that while plaintiff's allegations of "some eye sight loss" were "partially credible, . . . based on the objective and subjective evidence [plaintiff] appears capable of at least med[ium] work." [AR 268, 270]. Dr. Lizarraras's findings were affirmed by another medical consultant on July 14, 2008. [AR 272-273].

Dr. Lizarraras apparently based his visual limitation on an internal medical examination report conducted at the Commissioner's request by Bryan H. To, M.D. On March 1, 2008, Dr. To reported that plaintiff had visual acuity without glasses of 20/70 in both eyes, 20/50 in the right eye, and 20/200 in the left eye. With a pinhole correction*fn1 , plaintiff had 20/40 vision in the right eye and 20/200 on the left. Dr. To reported that plaintiff said he had last had an eye examination a year earlier and "notes some blurry vision." [AR 261].

Dr. To opined that plaintiff's impairments did not prevent him from performing medium work, and that plaintiff had "[n]o restrictions" in "[h]earing and seeing." [AR 261-262]. Dr. To said that he would restrict plaintiff from "working with heavy and moving machineries." [AR 262].

The ALJ remarked that treating records from May 2007, when plaintiff was incarcerated, showed some vision loss due to plaintiff's diabetes mellitus. [AR 15 (citing AR 210)]. At that time, plaintiff's uncorrected distance vision was 20/20 in both eyes, 20/20 in the right eye, and 20/200 in the left eye. [AR 210]. Presbyopia*fn2 was noted, but no treatment was recommended. [AR 210].

The ALJ said that he gave "significant, but not controlling weight" to the opinions of Dr. To and Dr. Lizarraras. The ALJ described those opinions as generally consistent with each other and supported by the record as a whole, with some differences between the two ...

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