Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Diane Limon v. Michael J. Astrue

June 8, 2011

DIANE LIMON,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINSTRATION, DEFENDANT,



The opinion of the court was delivered by: Stephen J. Hillman United States Magistrate Judge

MEMORANDUM DECISION

This matter is before the Court for review of the decision by the Commissioner of Social Security denying plaintiff's application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act. Pursuant to 28 U.S.C. § 636(c), the parties have consented that the case may be handled by the undersigned. The action arises under 42 U.S.C. § 405(g), which authorizes the court to enter judgment upon the pleadings and transcript of record before the Commissioner. Plaintiff and defendant have filed their pleadings (Plaintiff's Brief with Points and Authorities in Support of Remand or Reversal ["Plaintiff's Brief"]; Defendant's Brief with Points and Authorities in Opposition to Plaintiff's Request for Remand or Reversal ["Defendant's Brief"], and defendant has filed the certified transcript of record. After reviewing the matter, the Court concludes that the decision of the Commissioner should be affirmed.

On November 29, 2007, plaintiff protectively filed an application for supplemental security income, alleging disability beginning May 1, 2002, due to a herniated lumbar disk in the lower back, anemia, and high blood pressure. (Administrative Record ["AR"] 103-09). The claim was initially denied on February 26, 2008 and again upon reconsideration on April 24, 2008. Id. On November 6, 2009, the ALJ determined that the plaintiff was severely impaired by a herniated lumbar disk and obesity but was not disabled within the meaning of the Social Security Act. Id. Following the Appeals Council's denial of plaintiff's request for review of the hearing decision (AR 1-3), plaintiff filed an action in this court.

Plaintiff makes two challenges to the ALJ's decision denying benefits. Plaintiff alleges that the ALJ erred in (1) improperly relying on the opinion of the vocational expert ("VE") regarding the number of jobs available to plaintiff in the national economy; and (2) rejecting the testimony of plaintiff's treating physician. For the reasons discussed below, the Court concludes that the decision of the Commissioner should be affirmed.

Each of plaintiff's contentions will be addressed in turn.

ISSUE NO 1: Whether the ALJ properly relied on the VE's opinion of the number of jobs available to plaintiff in the national economy.

Plaintiff contends that the ALJ did not properly rely on the opinion of the VE because the ALJ only asked whether jobs exist for an individual with plaintiff's limitations. Plaintiff asserts that the ALJ erred by failing to pose a separate question to the VE regarding whether there was a significant number of jobs available to plaintiff in the national economy. (Plaintiff's Brief 3). Defendant contends that the ALJ properly relied on the VE's opinion of the number of available jobs because the VE stated that an individual with plaintiff's limitations would be able to perform light occupational work that exists in significant numbers. (Defendant's Brief 3).

After consideration of the entire record, the ALJ found that the plaintiff had the RFC to perform light work as defined in 20 CFR 416.967(b). (AR 11). To determine the extent to which plaintiff's limitations erode the unskilled light occupational base, the ALJ asked the VE whether jobs exist in the national economy for an individual with plaintiff's age, education, work experience and RFC. (AR 14). The VE testified that such an individual would be able to hold jobs as a sales attendant, 9,900 jobs available locally and 120,000 jobs nationally, a laundry worker, 2,900 jobs available locally and 34,000 jobs nationally; and a cleaner/housekeeper, 9,500 jobs available locally and 115,000 jobs nationally. (AR 14-15).

In order for the VE's testimony to constitute substantial evidence, the hypothetical question posed by the ALJ must "consider all of the claimant's limitations." Andrews v. Shalala, 53 F.3d 1035, 1044 (9th Cir. 1995). However, the ALJ need not include limitations that he does not deem credible. See Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001). Therefore, a hypothetical question that includes all of the plaintiff's limitations typically constitutes substantial evidence. See Id.

Here, the ALJ properly relied on the VE's opinion of the number of jobs available to plaintiff. The ALJ presented the VE with a hypothetical that contained all of plaintiff's limitations, and the VE enumerated significant figures regarding the number of jobs available to an individual given these factors. (AR 14-15). Contrary to plaintiff's assertion that hypotheticals must be presented to the VE in two separate subparts, plaintiff does not cite any authority for the proposition that an ALJ must present the hypothetical separately to accurately discern whether a significant number of jobs exist. In any event, the decision to combine both elements of the hypothetical was harmless considering the ALJ had substantial evidence that plaintiff is capable of performing work which exists in significant numbers. See Carmickle v. Commissioner 533 F. 3d 1155, 1162 (9th Cir. 2008). Thus, the ALJ properly relied on the VE's opinion regarding the number of jobs available to plaintiff in the national economy.4

ISSUE NO. 2: Whether the ALJ properly rejected the opinion of plaintiff's treating phyisican.

Plaintiff next asserts that the ALJ improperly rejected the opinion of Dr.Lua, plaintiff's treating physician, whose signature could be verified by matching it to records that bear his typed name and signature. Plaintiff also contends that the case should be remanded to reconsider whether Dr. Lua's RFC finding is supported by the treatment records. Defendant asserts that the ALJ properly rejected the treating physician's opinion because the signature was not verifiable, and his ultimate RFC finding was not supported by treatment notes or any clinical evidence.

In considering plaintiff's claim, the ALJ concluded that plaintiff's impairments could be reasonably expected to cause the alleged symptoms but that the intensity, persistence and limiting effect of these symptoms were not credible to the extent which they foreclosed basic light work activity. (AR 11). The ALJ gave significant weight to the opinions and testimony of Dr. Joseph E. Jensen, M.D., an impartial medical expert who had reviewed the entire record and listened to plaintiff's testimony. Id. Dr. Jensen was of the opinion that plaintiff's impairments would not preclude the RFC to perform light work. (AR 11-12).

The ALJ determined that Dr. Jensen's opinion was well supported by the medical evidence of record. Id. On April 1, 2006, plaintiff underwent orthopedic examination by Dr. Kambiz Hannai, M.D.,a board certified orthopedic surgeon. (AR 162-165). Similar to Dr. Jensen, Dr. Hannai was of the opinion that plaintiff possessed the RFC to perform light work. Id. On February 12, 2008, plaintiff underwent another orthopedic consultation by Dr. Bunsri Sophon, M.D., a board certified orthopedic surgeon. (AR 166-173). Dr. Sophon was of the opinion that plaintiff was capable of medium extertional work. Id. Nine days later, Joseph Hartman, M.D., the State agency's physician, completed an RFC assessment and also concluded that plaintiff was generally capable ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.