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Bibi Rukhsana Hayee v. Michael J. Astrue

August 12, 2011

BIBI RUKHSANA HAYEE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



SYLLABUS BY THE COURT

KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

ORDER

In her motion for summary judgment, plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's applications for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"), and Supplemental Security Income ("SSI") under Title XVI of the Act.*fn1 (Pl.'s Mot. for Summ. J. ("Pl.'s Motion"), Dkt. No. 22-1 at 1.) First, plaintiff contends that the administrative law judge ("ALJ") discounted the medical opinion of plaintiff's treating physician without providing clear and convincing reasons for doing so. (Pl.'s Motion at 7.) As part of this argument, plaintiff suggests that the ALJ erroneously failed to recontact that physician to answer any "questions" the ALJ "may have had." (Id. at 10.) Plaintiff's second argument echoes her first: she contends that the ALJ improperly discounted the opinion of an examining physician, also without clear and convincing reasons for doing so. (Id. at 11.) Third, as to the ALJ's finding that plaintiff had the residual functional capacity ("RFC") to perform her past relevant work of an in-home aide, plaintiff contends this finding was not based on substantial evidence and that the ALJ failed to consider all of plaintiff's ailments and the "mental demands" of plaintiff's past work. (Id. at 14-16.) Fourth, as to the ALJ's finding that plaintiff possessed the RFC to perform "other" light, unskilled work in the national economy, plaintiff contends this finding was not based on substantial evidence and was based on an "incomplete hypothetical" given to the VE. (Id. at 16.)

The Commissioner filed an opposition to plaintiff's motion and a cross-motion for summary judgment. (Def.'s Mot. for Summ. J. ("Def.'s Motion"), Dkt. No. 24.) Plaintiff filed a reply ("Pl.'s Reply") to the Commissioner's opposition and cross-motion for summary judgment. (Pl.'s Reply, Dkt. No. 25.)

For the reasons stated below, the court denies plaintiff's motion for summary judgment and grants the Commissioner's cross-motion for summary judgment.

I. BACKGROUND*fn2

Plaintiff, a female with a second grade education, was 49-years-old when the ALJ rendered the decision denying plaintiff's application for disability benefits. (See Administrative Record ("AR") 69.) Plaintiff was unable to speak English and could read in English just "a little bit." (Id.) In terms of previous employment, plaintiff had worked as an in-home health aide for nearly eight years, from 1998 through June 2006. (AR 70; 108; 113.) Plaintiff reported that she became disabled on June 23, 2006. (AR 55; 107-08.)

Several medical opinions were rendered regarding plaintiff's medical issues and limitations. Plaintiff's treating physician, Dr. Gabriel K. Tanson, opined that plaintiff could not perform sustained work activities due in part to chronic low back pain, arthritis, spondylolysis,*fn3 fibromyalgia, chronic fatigue, and diabetes mellitus. (AR 185-86.) Dr. Tanson also assessed plaintiff's ability to engage in work-related activities. He opined that plaintiff could: (1) manage her own financial matters; (2) only occasionally lift and carry 10 pounds; (3) use both right and left hands often, but could only occasionally engage in simple grasping and fine manipulation with the right hand; and (4) sit for two hours, stand for two hours, and walk for two hours, in an 8-hour workday, engaging in each of these activities for only one hour at a time. (AR 185-87.) Dr. Tanson opined that plaintiff's mental and emotional capabilities were affected by her physical impairment. (AR 188-89.)

An examining physician, Dr. Les P. Kalman, diagnosed plaintiff with adjustment disorder, depression, diabetes mellitus, hypertension, chronic fatigue, and pain. (AR 193.) He opined that plaintiff was capable of caring for her own personal hygiene, but was not competent to manage her own funds. (AR 193-94.) Dr. Kalman further opined that plaintiff was mildly or moderately limited in a number of categories of mental functioning.*fn4 (AR 196-98.) Dr. Kalman opined that plaintiff's work-related mental limitations existed since 2005 and would cause plaintiff to miss work more than three or four times per month. (AR 199.)

A state-requested examining physician, Dr. Joseph M. Garfinkel, examined plaintiff on August 29, 2006, at the request of the Department of Social Services ("DSS"). (AR 164-69.) Dr. Garfinkel determined that plaintiff's range of motion of the neck, shoulders, elbows, wrists, and hands were all within normal limits. (AR 167.) As to plaintiff's back pain, Dr. Garfinkel found that plaintiff's range of motion was less than normal and that plaintiff suffered from chronic low back pain, "most likely caused by lumbosacral strain and mild otheoarthritis." (AR 168.) However, in contrast to Dr. Tanson's medical assessment, Dr. Garfinkel found that, despite her back pain, plaintiff could nonetheless lift or carry 50 pounds occasionally and could stand or walk for 6 hours in an 8-hour day. (Id.) Dr. Garfinkel also opined that plaintiff's neurological examination was normal, noting that the motor, sensory, reflexes and cranial nerve tests were intact and otherwise unremarkable. (AR 167.)

A. Procedural Background

On June 29, 2006, plaintiff applied for benefits and alleged a disability onset date of June 23, 2006. (AR 55.) The Social Security Administration denied plaintiff's applications both initially and upon reconsideration. (AR 86-87.) Plaintiff filed a request for a hearing and the ALJ, Laura Havens, conducted a hearing regarding plaintiff's claims on September 13, 2007. (AR 65-85.) Plaintiff, who was represented by counsel at the hearing, testified at the hearing. A vocational expert ("VE") also testified at the hearing. (Id.) A translator was present and translated for plaintiff. (Id.)

In a decision dated October 11, 2007, the ALJ determined that plaintiff was not disabled.*fn5 (AR 24-32.) In reliance on the VE's testimony, the ALJ also found that plaintiff was capable of performing her past relevant work as it is performed in the national economy. (AR 30.) Additionally, and also in reliance on the VE's testimony, the ALJ found that plaintiff could still perform other work, such as assembly work, sewing operator, and semi-conductor operator, which are jobs that exist in significant number in the regional or national economy. (AR 31.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. (AR 5.) Plaintiff subsequently filed this action.

B. Summary of the ALJ's Findings

The ALJ conducted the required five-step evaluation and concluded that plaintiff was not disabled within the meaning of the Act. (AR 25, 27.) At step one, the ALJ concluded that plaintiff had not engaged in substantial gainful activity since June 23, 2006, the alleged date of onset. (AR 26.) At step two, the ALJ concluded that plaintiff had the following "severe" impairments: diabetes, obesity, fibromyalgia, and arthirtis, plus "not severe" impairments of mild degenerative disc disease and depression. (Id.) At step three, the ALJ determined that plaintiff's impairments did not meet or medically equal any impairment listed in the applicable regulations. (AR 27.)

Between steps three and four, the ALJ assessed plaintiff's residual functional capacity ("RFC") as follows:

After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform a wide range of medium work,*fn6 with exertional limitations of sitting and standing for up to 6 hours in an eight-hour day, walk for up to 6 hours in an eight-hour day, with an option to change positions and alternate between sitting and standing every 2 hours.

She has postural limitations restricting her to work requiring climbing, stooping, kneeling, crouching, and crawling only on an occasional basis. (Id.) In assessing plaintiff's RFC, the ALJ found plaintiff's statements concerning the intensity, persistence, and limiting effects of her symptoms to be "not entirely credible and inconsistent with the medical evidence." (AR 28.) The ALJ also found that the physical and mental limitations on plaintiff's ability to do work-related activities, as defined within an April 3, 2007 report by plaintiff's treating physician, Dr. Tanson (the "Tanson Report"), were conclusory diagnoses that were contradicted by plaintiff's performing work-related activities during the relevant time period, among other reasons. (AR 29.) Further, the ALJ gave "very little weight" to the August 4, 2007 psychiatric evaluation of the examining physician, Dr. Kalman (the "Kalman Report"), finding that Dr. Kalman's opinions were largely based on plaintiff's less-than-credible representations and that his "opinions are not supported by any testing, clinical or other objective findings." (AR 30.) Finally, the ALJ gave "significantly more weight" to the August 29, 2006 report of another examining physician, Dr. Garfinkel (the "Garfinkel Report"), because, among other reasons, Dr. Garfinkel "actually performed a physical exam of the claimant and observed her spontaneous action during the exam." (Id.)

After assessing plaintiff's RFC, the ALJ proceeded to step four of the analysis and determined that plaintiff was capable of performing her past relevant work as a home health provider. (AR 30.) Based in part on the VE's testimony, the ALJ found that while plaintiff could perform her past relevant work, she could do so only as such work is performed in the national economy, i.e., at the "medium" exertional level - not as plaintiff had actually performed it, i.e., at the "heavy" exertional level. (Id.)

Because of the finding at step four, the ALJ was not required to proceed to step five of the inquiry. However, the ALJ nonetheless continued on to step five and determined that plaintiff could perform several other jobs existing in the regional economy. (AR 31.)

II. STANDARDS OF REVIEW

The court reviews the Commissioner's decision to determine whether it is (1) free of legal error, and (2) supported by substantial evidence in the record as a whole. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009); accord Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). This standard of review has been described as "highly deferential." Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). "'Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)); accord Valentine, 574 F.3d at 690 (citing Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988)). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews, 53 F.3d at 1039; Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) ("[T]he ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence.").

Findings of fact that are supported by substantial evidence are conclusive. 42 U.S.C. § 405(g); see also McCarthy v. Apfel, 221 F.3d 1119, 1125 (9th Cir. 2000). "Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's." Bray, 554 F.3d at 1222; see also Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) ("'Where evidence is susceptible to more than one rational interpretation,' the ALJ's decision should be upheld.") (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)); Batson v. Comm'r of Soc. Sec., 359 F.3d 1190, 1196 (9th Cir. 2004). However, the court "must consider the entire record as a whole and may not affirm simply by isolating a 'specific quantum of supporting evidence.'" Ryan, 528 F.3d at 1198 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); accord Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007).

III. ANALYSIS

A. The ALJ Determined That Evidence Conflicted With The Tanson Report And Gave Specific, Legitimate Reasons For Discounting That Report Plaintiff argues that "The ALJ . . . must present clear and convincing reasons for rejecting the uncontroverted opinion of a claimant's physician" and suggests that a treating physician's opinion is always entitled to "controlling" weight. (Pl.'s Motion at 1, 9-11 (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989).) Plaintiff also characterizes the Tanson Report as "not inconsistent" with the other evidence in the record. (Pl.'s Reply at 2-4.)*fn7

As discussed below, plaintiff's arguments are not well-taken. As the Commissioner correctly argues, plaintiff "misapplies the clear and convincing standard," because the ALJ was only required to provide legitimate and specific reasons for discounting the opinions of Drs. Tanson and Kalman. (See Def.'s Motion at 9, 11.) A review of the ALJ's decision, and of the record itself, confirms that substantial evidence supports the ALJ's determination that the opinions expressed in the Tanson Report were inconsistent with other evidence in the record.

The medical opinions of three types of medical sources are recognized in social security cases: "(1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining physicians)." Lester, 81 F.3d at 830. Generally, a treating physician's opinion should be accorded more weight than opinions of doctors who did not treat the claimant, and an examining physician's opinion is entitled to greater weight than a non-examining physician's opinion. Id. However, "[t]he ALJ is responsible for determining credibility and resolving conflicts in medical testimony." Magallanes, 881 F.2d at 750.

Plaintiff argues that the ALJ needed to state "clear and convincing" reasons before discounting the opinions expressed within the Tanson Report.*fn8 (Pl.'s Motion at 9 ("The ALJ . . . must present clear and convincing reasons for rejecting the uncontroverted opinion of a claimant's physician.") (quoting Magallanes, 881 F.2d at 751).) Plaintiff is correct that a treating physician's opinion may be entitled to weight in certain instances, i.e., where that opinion is uncontradicted and not conclusory. See Magallanes, 881 F.2d at 751; Batson, 359 F.3d at 1195. Here, the ALJ found that plaintiff's treating physician's opinion was not entitled to weight because it was conclusory and because evidence in the record ...


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