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Olivia Gonzales v. Michael J. Astrue

January 4, 2012

OLIVIA GONZALES,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT (Doc. 1)

I. INTRODUCTION

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying her application for disability insurance benefits ("DIB") and supplemental security income ("SSI") pursuant to Title II and Title XVI of the Social Security Act (the "Act"). 42 U.S.C. §§ 405(g); 1383(c)(3). The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.*fn1

II. FACTUAL BACKGROUND

Plaintiff was born on July 1, 1975, and previously worked as a kitchen helper, nutritional aide, and hospital housekeeper. (Administrative Record ("AR") 606-08.) Plaintiff has a high school education. (AR 606-07.) Plaintiff filed applications for DIB and SSI on May 20, 2004, and filed subsequent applications on July 3, 2007. (AR 25, 157-59, 564-66.) Plaintiff alleges that she became unable to work on April 4, 2004.*fn2 (AR 25, 647-48.)

A. Medical Evidence

Plaintiff asserts that her inability to work is due to asthma, back and knee problems, a heart murmur, sleep apnea, and mental disorders, which include memory loss and depression. (AR 79-80, 88.) On March 31, 2005, Plaintiff was examined by Dr. Paul D. Casner. (Doc. 287-90.) At the time of examination, Plaintiff complained of pain in her right knee, depression, and shortness of breath. (AR 287.) Plaintiff reported she had injured her right knee by falling into a three-foot-deep hole while walking in the dark two years before. (AR 287.) She also reported that she has suffered from asthma since the age of five, and she is under the regular care of a pulmonologist. (AR 287.)

On examination, Dr. Casner noted that Plaintiff had a prominent limp favoring the right side, but her posture was otherwise good. Plaintiff was able to transfer from a seated to a standing position and mount and dismount the examination table without assistance. (AR 288.) Plaintiff used a hinged knee brace on her right knee. (AR 288.) Dr. Casner determined that Plaintiff's flexion was 0 to 80 degrees in her right knee and 0 to 130 degrees in her left knee. (AR 289.) Dr. Casner diagnosed Plaintiff with: (1) post-traumatic pain in her right knee, exacerbated by her body weight; (2) depression; and (3) asthma, severe and persistent, exacerbated by her body weight. (AR 289.) As to Plaintiff's functional capacity, Dr. Casner opined that Plaintiff could be expected to stand and walk cumulatively less than two hours in an eight-hour workday, limited by pain in her knee and shortness of breath. (AR 290.) He also found that Plaintiff could sit without restriction, but would require an assistive device such as a brace and would benefit from a cane. (AR 290.) She could lift and carry 10 pounds frequently and 20 pounds occasionally. (AR 290.) As to postural limitations, she could perform occasional forward bending and stooping, but could not squat, kneel, or crawl due to right-knee pain. (AR 290.) Plaintiff was limited in her ability to walk distances and climb stairs due to knee pain, and she must avoid airway irritants such as dust, smoke, fumes, and extreme cold. (AR 290.)

On April 10, 2005, Plaintiff underwent a psychiatric evaluation conducted by Dr. Soad Khalifa. (AR 317-19.) Plaintiff reported that she suffers from chronic asthma, diabetes mellitus, depression, low-back pain, and problems resulting from a caesarean section. (AR 317.) On examination, Dr. Khalifa determined that Plaintiff had a coherent, normal rate of speech; her stream of mental activity was linear; her thought content was mainly about her physical problems; her mood was dysphoric, but her affect was appropriate; she had difficulty with remote memory and some difficulty with recent memory, her "nervousness caused her some problems," and her concentration was impaired; she could not spell backwards; her abstract thinking was poor; but her insight and judgment were intact. (AR 318-19.) Dr. Khalifa opined that Plaintiff could not manage her own funds and she "will have some restrictions with difficulty in social functioning and responding appropriately because of her mild depressive symptoms and nervousness, physical problems, and knee pain." (AR 319.)

On April 26, 2005, state agency consultative physician, Dr. Dorell Sharbaugh, reviewed Plaintiff's medical records and completed a Physical Residual Functional Capacity Assessment. (AR 320-27.) Dr. Sharbaugh opined that Plaintiff could occasionally lift 20 pounds; frequently lift or carry 10 pounds; stand and/or walk at least two hours in an eight-hour day, but required a hand-held assistive device for ambulation; sit for a total of six hours in an eight-hour day; and was unlimited in her ability to push or pull. (AR 321.) Dr. Sharbaugh also opined that Plaintiff could occasionally climb, balance, stoop, kneel, crouch, and crawl. (AR 322.) Dr. Sharbaugh disagreed with Dr. Casner's opinion regarding Plaintiff's ability to concentrate and walk. (AR 337.) Dr. Sharbaugh found Dr. Casner's opinion "over-restrictive and does not take into account normal PFTS*fn3 or field office observations of no difficulty with concentration or walking." (AR 337.)

On May 3, 2005, Dr. Archimedes Garcia reviewed Plaintiff's medical records and completed a Psychiatric Review Technique Form. (AR 328-30.) He opined that Plaintiff suffered from an affective disorder. (AR 328.) Dr. Garcia also opined that Plaintiff had mild limitation in (1) activities of daily living; (2) maintaining social functioning; and (3) maintaining concentration, persistence, or pace. (AR 330.) There was insufficient evidence to determine whether she experienced any episodes of decompensation. (AR 330.) Plaintiff ranged from "not significantly limited" to "moderately limited" in her ability to understand, remember, or carry out detailed instructions. (AR 331.) In all other areas of understanding and memory, sustained concentration and persistence, social interaction, and adaption, Plaintiff was "not significantly limited." (AR 332.) Dr. Garcia also indicated that Plaintiff "can sustain simple repetitive tasks with adequate pace and persistence, can adapt and relate to co-workers and [supervisors]." (AR 333.) On August 25, 2005, Dr. Glenn Ikawa reviewed Dr. Garcia's opinion and indicated that he concurred with the assessment. (AR 339-40.)

On October 10, 2007, Dr. Rustom F. Damania examined Plaintiff. Plaintiff reported that she experienced pain every day in her lower back that was "sharp" in character and radiated down both her legs. (AR 520.) On examination, her right knee was tender and there "were palpable and audible crepitations." (AR 524.) Dr. Damania reported that Plaintiff was unwilling to walk without her cane during examination and "declined to walk on her toes and heels." (AR 525.) Dr. Damania opined that Plaintiff should be able to lift and carry 10 pounds both occasionally and frequently. (AR 525.) Plaintiff can stand and walk for two to four hours in an eight-hour workday with normal breaks and the use of a cane. (AR 525.) Plaintiff would have no postural limitations so long as any postural demands Plaintiff encountered would be only occasional; she had no manipulative, visual, or communicative impairments. (AR 525.) Plaintiff would, however, have environmental limitations due to bronchial asthma, and her right-knee pain and low-back pain would limit her ability to climb and balance. (AR 525.)

On November 8, 2007, Plaintiff underwent a psychological evaluation conducted by Dr. Richard Engeln. (AR 526-30.) Plaintiff reported to Dr. Engeln that she "did not attend any high school at all. She did not go to much school, even in elementary school, because she was sick all the time in childhood." (AR 527.) She also reported that she was depressed, and she believed her depression was linked to her physical medical problems. (AR 527.)

Dr. Engeln reported the following: [Plaintiff] carried a sense of anger, presented sullen in affect, pouty in presentation. She presented with low attention to dress and grooming. Verbal expression was easily understood, appropriate in form and association. Interview presentation suggested at least high borderline intellectual skills. She was unwilling to demonstrate competency. Response pattern did not suggest credibility. Her response to the Rey 15 Item Memory Test II, was positive for exaggerate. Obtained scores are not valid measurements of her ability, but instead, reflect attitudinal-emotional issues. . . .

Because of her exaggeration, I am unable to say what her abilities actually are. She appears mentally competent to manage funds. History[] and interview presentation suggested she is capable of job adjustment in an entry-level context where instructions are simple, and unidimensional and normal supervision is provided. She would be able to perform one-to-two step simple job instructions, but not able to receive complex or technical job instructions. She has made such job adjustments in the past. She might be restricted in making a job adjustment in a context where academic demands are components. There are no psychological restrictions to job adjustment potential. Restrictions to job adjustments are medical-physical in nature. (AR 528-29.)

B. Administrative Proceedings

1. January 22, 2007, Hearing

The Commissioner denied Plaintiff's application initially and again on reconsideration; consequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR 79-84, 88-92, 94.) On January 22, 2007, ALJ Christopher Larsen held a hearing where a Vocational Expert ("VE") testified. The ALJ posed a hypothetical to the VE that assumed a worker of Plaintiff's age, education, and work experience who retained the ability to "understand, remember, and carry out simple one or two step job[] instructions" and could lift and carry 20 pounds occasionally, 10 pounds frequently; stand and walk a total of two hours in an eight-hour day with the use of a cane; sit for a total of six hours; climb, balance, stoop, kneel, crouch, and crawl only occasionally; and must avoid concentrated exposure to fumes, odors, dusts, gases, and poor ventilation. (AR 652.) The VE responded that such a person could not perform any of Plaintiff's past relevant work, but could perform "the entire world of sedentary unskilled" work which included 80,933 jobs in the State of California. (AR 652.) On March 23, 2007, the ALJ issued a decision denying benefits. (AR 66-74.) After seeking Appeals Council review, which was granted, Plaintiff's application was remanded for further consideration. (AR 75-78.)

2. February 11, 2008, Hearing

On February 11, 2008, a new hearing was held, but no VE testified. (AR 657-80.) At the hearing, Plaintiff personally appeared and testified that she experiences pain in her knee all day and swelling from her knee down her leg approximately twice a week, which she treats by elevating her leg. (AR 663-65.) Plaintiff uses a cane for all purposes, which was prescribed by a doctor. (AR 667.) She cannot walk more than a city block, cannot stand more than ten minutes at one time, and can only sit for 20 minutes at a time. (AR 668.) She can lift approximately 10 pounds. (AR 669.) She also experiences sleep difficulties relating to sleep apnea and anxiety, and she needs naps in the afternoon or the evening due to her sleeping difficulties. (AR 670-71.) She suffers from panic attacks during which she suffers anxiety and "sees things sometimes"; she experiences multiple panic attacks every other day. (AR 672.) She hears voices occasionally and sometimes feels suicidal. (AR 677.)

On April 14, 2008, the ALJ issued a decision finding Plaintiff not disabled since April 4, 2004. (AR 22-31.) Specifically, the ALJ found that Plaintiff (1) had not engaged in substantial gainful activity since her alleged date of disability on April 4, 2004; (2) has an impairment or a combination of impairments that is considered "severe" based on the requirements in the Regulations; (3) does not have an impairment or combination of impairments that meets or equals one of the impairments set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) is unable to perform her past relevant work; but (5) could perform jobs that exist in significant numbers in the national economy. (AR 22-31.) Plaintiff sought review of this decision before the Appeals Council.

On May 27, 2010, the Appeals Council denied review. (AR 1-11.) Therefore, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. §§ 404.981, 416.1481.

C. Plaintiff's Contentions on Appeal

On July 23, 2010, Plaintiff filed a complaint before this Court seeking review of the ALJ's decision. Plaintiff asserts that the ALJ improperly evaluated Dr. Casner's opinion regarding Plaintiff's physical limitations. (Doc. 14, at 15-18.) Plaintiff also contends that, even assuming the ALJ's Residual Functional Capacity ("RFC")*fn4 determination was entirely accurate, the RFC indicates that she cannot perform the full range of sedentary, unskilled work as stated by the VE. Specifically, her limitation to work that involved simple, one- to two-step instructions seriously erodes the sedentary work base; therefore, the VE's testimony conflicts with the Dictionary of Occupational Titles ("DOT").

III. SCOPE OF REVIEW

The ALJ's decision denying benefits "will be disturbed only if that decision is not supported by substantial evidence or it is based upon legal error." Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999). In reviewing the Commissioner's decision, the Court may not substitute its judgment for that of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). Instead, the Court must determine whether the Commissioner applied the proper legal standards and whether substantial evidence exists in the record to support the Commissioner's findings. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007).

"Substantial evidence is more than a mere scintilla but less than a preponderance." Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938)). The Court "must consider the entire record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion, and may not affirm simply by isolating a ...


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