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Dolyn Keith Barrow v. Michael J. Astrue

September 26, 2011


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


In his 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. 21 at 1.)

Plaintiff makes four arguments within his motion for summary judgment. First, plaintiff contends that the administrative law judge (the "ALJ") failed to sufficiently develop the administrative record, because he failed to "secure" a treating physician's Residual Functional Capacity assessments or order a consultative examination. (Pl.'s Mot. at 20.) As part of this argument, plaintiff asserts that the ALJ's decision is necessarily erroneous because "the record contained no [Residual Functional Capacity] assessment by a treating or examining physician." (Id. at 20-21.)

Plaintiff's second argument is that the ALJ failed to include plaintiff's "uncontrolled hypertension and plantar fibromastosis/plantar faciitis" as "severe" impairments at step two of the analysis. (Pl.'s Mot. at 22.)

Plaintiff's third argument is that the ALJ failed to "utilize the proper legal standard in evaluating" plaintiff's obesity. (Id. at 22.) As part of this argument, plaintiff contends that the ALJ improperly concluded that plaintiff's obesity did not exacerbate any functional limitations arising from his severe impairments. (Id. at 23.)

Plaintiff's fourth argument is that the ALJ "failed to properly credit" plaintiff's testimony regarding the nature and extent of his functional limitations insofar as that testimony conflicted with the ALJ's RFC finding. (Pl.'s Mot. at 26-27.) As part of this argument, plaintiff challenges the ALJ's conclusion that plaintiff's sleep apnea was "alleviated" with CPAP treatment. (Id. at 27.)

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. 25.) Plaintiff did not file a reply in support of his motion.

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


A. Procedural Background

Plaintiff applied for benefits on July 26, 2006, alleging a disability onset date of November 1, 2005. (Administrative Record ("AR") 40, 127-28, 132-39.) The Social Security Administration denied plaintiff's applications both initially and upon reconsideration. (AR 11.)

On September 11, 2008, the ALJ conducted a hearing regarding plaintiff's claims. (AR 11-22.) Plaintiff, who was represented by an attorney, testified at the hearing. (AR 23-74.) A vocational expert (the "VE") also testified at the hearing. (Id.) During the hearing, plaintiff confirmed that his previous employment included work as a juvenile "at risk" counselor, a security officer, and a ship builder. (AR 37-43.)

In a decision dated January 9, 2009, the ALJ determined that plaintiff was not disabled.*fn3 (AR 11-22.) The ALJ found that while plaintiff could not perform his past relevant work, plaintiff could nonetheless perform other work in the national economy. (AR 17-22.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. (AR 4-6.) 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 21-22.) At step one, the ALJ concluded that plaintiff had not engaged in substantial gainful activity since November 1, 2005, plaintiff's amended alleged date of onset of disability. (AR 21.) At step two, the ALJ concluded that plaintiff had the following "severe" impairments: "left eye blindness, chronic kidney disease, obesity and sleep apnea." (AR 18, 21.) The ALJ found that plaintiff's "feet impairment is not severe" because it "is only periodic and alleviated with orthotics and injections," and because plaintiff made "no complaints" about feet impairments "from July 2006 to February 2008." (AR 18.) The ALJ noted that, in any case, "there is no reason to believe that ongoing [feet] problems, if any, would not be accommodated by alternating between sitting and standing." (AR 18.)

At step three, the ALJ determined that none of plaintiff's impairments "either alone or combined meets or medically equals" one of the listed impairments in the applicable regulations. (AR 19, 21.)

Between steps three and four, the ALJ assessed plaintiff's residual functional capacity ("RFC"). (AR 19, 22.) The ALJ accorded "substantial weight" to the opinion of the non-examining state agency medical consultant, Dr. A.G. Dipsia. (AR 20.) Dr. Dipsia opined that plaintiff could perform "light work" with vision-related limitations. (AR 20.) In light of Dr. Dipsia's opinion, the "objective clinical findings and the claimant's activities and treatment history" (AR 20 (citing AR 75, 76, 248-52)), and after "careful consideration of the entire record," the ALJ found that plaintiff: has the residual functional capacity to perform essentially the full range of light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b), but due to pain, needs to be able to alternate between sitting and standing and avoid work requiring good distant visual acuity, depth perception, and broad field of vision.

(AR 22.)

In discussing this RFC determination, as well as in discussing the step three analysis, the ALJ explained that plaintiff's "obesity has contributed to his alleged physical limitations such as his sleep apnea and his back pain. However, the medical record and testimony show that the claimant's physical deconditioning is remediable with physical exercise and moderate consumption of food. In short, his symptoms are alleviated with changes in his sedentary lifestyle." (AR 19.) The ALJ explained that plaintiff's other impairments "do not preclude modification of food intake or a routine home exercise program. The claimant must understand that the majority of his alleged impairments (i.e., high blood pressure, back pain, feet pain) are related to his weight." (Id.) The ALJ found that plaintiff did indeed suffer from several medically determinable physical impairments, but also found that plaintiff's "statements concerning the intensity, persistence, and limiting effects" of the symptoms of such impairments "are not credible to the extent they are inconsistent with the residual functional capacity assessment made herein." (AR 20.) The ALJ concluded that "the claimant's obesity in combination with his other alleged impairments does not increase the severity or functional limitations of those impairments." (AR 19.) The ALJ also found that "[t]here is simply no compelling evidence that the claimant's alleged impairments significantly impact his day-to-day functioning." (AR 20.) The ALJ repeatedly noted that plaintiff "performed a variety of jobs in the past in spite of his obesity," and that "claimant has held a variety of jobs in spite of his impairments." (AR 19, 20.)

After assessing plaintiff's RFC, the ALJ proceeded to step four of the analysis and determined that plaintiff was not capable of performing any of his past relevant work. (AR 21.)

At step five, the ALJ accepted the VE's testimony and determined that a hypothetical individual with plaintiff's RFC could perform several other jobs existing in the national economy, including that as an "Information Clerk," "Storage Facility Clerk," and "Office Helper." (AR 17, 21-22.)


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).


A. The ALJ Did Not Err By Failing To Recontact Plaintiff's Treating Physician Or Failing To Further Develop The Record

"The ALJ in a social security case has an independent 'duty to fully and fairly develop the record and to assure that the claimant's interests are considered.'" Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (quoting Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996)); Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). Ambiguous evidence, or the ALJ's own finding that the record is inadequate to allow for proper evaluation of the evidence, triggers the ALJ's duty to conduct an appropriate further inquiry. Smolen, 80 F.3d at 1288; Armstrong v. Comm'r of Soc. Sec. Admin., 160 F.3d 587, 590 (9th Cir.1998). "An ALJ is required to recontact a doctor only if the doctor's report is ambiguous or insufficient for the ALJ to make a disability determination." Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) ("the requirement for additional information is triggered only when the evidence from the treating medical source is inadequate to make a determination as to the claimant's disability.") Plaintiff bears the burden of proving his disability, and he cannot shift that burden by arguing that the ALJ should have developed the record further. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001). "The ALJ may discharge this duty in several ways, including: subpoenaing the claimant's physicians, submitting questions to the claimant's physicians, continuing the hearing, or keeping the record open after the hearing to allow supplementation of the record." Tonapetyan, 242 F.3d at 1150 (citing Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1998)).

Plaintiff argues that "the record contained no residual functional capacity (RFC) assessment by a treating or examining physician," and that the "only RFC assessment in the record was a check-off-the-box form completed by a non-examining State Agency physician in November 2006." (Pl.'s Mot. at 20.) Plaintiff explains that a document in the record suggests that Dr. Will, plaintiff's treating physician, may have completed RFC assessment forms - and that such forms are absent from the record. (Id. (citing AR 324).) As a result, according to plaintiff, the ALJ erred by not re-contacting Dr. Will and inquiring about the potentially "missing RFC assessments." (Id.) Plaintiff contends that the potentially "missing RFC assessments" created an "ambiguity" in the record that the ALJ was duty-bound to resolve. (Id. at 20-21.)

Contrary to plaintiff's argument, the ALJ fulfilled his duty to develop the record in this case. A duty to recontact a treating physician is triggered only when the evidence is otherwise insufficient to enable the ALJ to determine whether a disability exists, and here, the evidence was sufficient to make such a determination. (AR 20-22.) For instance, in making his findings, the ALJ reviewed the "entire record" (AR 19), which included treatment notes from Dr. Will (AR 322-24), as well as an RFC assessment from the non-examining agency physician Dr. Dipsia. (AR 20.) *fn4 Plaintiff presumes that a potentially missing RFC assessment necessarily renders the record ambiguous. Yet, plaintiff has not cited authorities supporting his argument that, because an RFC assessment may have been completed*fn5 and is not within the record, this necessarily creates the sort of "ambiguity" that renders the remaining evidence "inadequate" to determine whether a disability exists. (Pl.'s Mot. at 20-21.) Similarly, plaintiff has not cited authorities supporting the argument that, every time a record lacks an RFC assessment from either "a treating or examining physician" (Pl.'s Mot. at 21), that record is necessarily insufficient and therefore requires further development (i.e., by a "consultative examination" or otherwise). Indeed, controlling authority is to the contrary: the reports of non-examining physicians like Dr. Dipsia can constitute substantial evidence. See Magallanes v. Bowen, 881 F.2d 747, 752 (9th Cir. 1989) ("[T]he reports of consultative physicians called in by the Secretary may serve as substantial evidence.").

Plaintiff failed to raise the issue of "missing RFC assessments" during the administrative hearing. (AR 23-74.) Instead, plaintiff now invokes his own failure to introduce a treating physician's RFC assessment in efforts to raise an ambiguity. See Mayes, 276 F.3d at 459 (holding that "[i]t was [plaintiff's] duty to prove she was disabled" and that plaintiff could not "shift her own burden to the ALJ" by arguing that he improperly developed the record). In any event, even if there were some "ambiguity" caused by Dr. Will's so-called "missing RFC assessment," (Pl.'s Mot. at 20), the ALJ satisfied his duty under Tonapetyan by holding the record open after the hearing (AR 28-29, 73, 432-39) and in fact receiving other materials. See Tonapetyan, 242 F.3d at 1150. As a result, plaintiff had the opportunity to supplement the record to clarify any ambiguities he now raises. Plaintiff identifies no reason why he could not have timely ...

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