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Gary Rutledge v. Commissioner of Social Security

March 22, 2012


The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge


Plaintiff, who is proceeding with retained counsel, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are plaintiff's motion for summary judgment (Doc. 22) and defendant's cross-motion for summary judgment (Doc. 28).


Plaintiff applied for social security benefits on January 31, 2008. In the application, plaintiff claims that disability began on January 17, 2008. In his motion for summary judgment, plaintiff claims that disability is caused by a combination of "diabetes, diabetic neuropathy, retinal neuropathy, hypertension, asthma, allergies, obesity, dysthymic disorder, and borderline intellectual functioning" which he claims gives rise to debilitating symptoms, including "pain, fatigue, numbness, swelling, sit/stand/walk limitations, shortness of breath, impaired concentration, persistence, and pace, and decreased vision." Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on September 14, 2009, before Administrative Law Judge ("ALJ") Mark C. Ramsey. In a February 25, 2010, decision, the ALJ concluded that plaintiff is not disabled based on the following relevant findings:

1. The claimant has the following severe impairments: diabetes mellitus; asthma; hypertension, hyperlipidemia; dysthymic disorder; and borderline intellectual functioning;

2. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the impairments listed in the regulations;

3. The claimant has the residual functional capacity to perform a limited range of light work as defined in 20 C.F.R. § 416.967(b): The claimant can lift and carry up to 20 pounds occasionally and 10 pounds frequently; stand and walk up to 6 hours in an 8 hour day, and sit up to 6 hours in an 8 hour day; claimant must avoid concentrated exposure to fumes, odors, dusts, gases, and poor ventilation; claimant is limited to simple unskilled work;

4. The claimant is unable to perform past relevant work; 5. Considering the claimant's age, education, work experience, and residual functional capacity, and based on application of the Grids, there are jobs that exist in significant numbers in the national economy that the claimant can perform.

After the Appeals Council declined review on June 25, 2010, this appeal followed.


The certified administrative record ("CAR") contains the following relevant evidence, summarized chronologically below:

Undated -- Plaintiff submitted (presumably in connection with his application for benefits) an Adult Asthma Questionnaire. He stated that he had last been seen by a doctor in March 2008. According to plaintiff, he experienced asthma attacks three or four times per week. He stated that he uses inhalers throughout the day. Plaintiff stated that he had never been seen in the emergency room due to an asthma attack, and that he had never been hospitalized for the condition. He stated that his asthma is a recurring problem.

Undated -- Plaintiff submitted (also presumably in connection with his application) an Exertional Daily Activities Questionnaire. Plaintiff stated that he lives with family in a house. He stated that shortness of breath and "slite [sic] dizziness" prevent him from carrying out a normal workday. Plaintiff stated that on an average day he cleans up around the house and "walk up flight of stairs." He said it would take him 30 minutes to walk half a mile. Plaintiff stated that he climbs stairs but did not say how this activity affects him. When asked what kinds of things he can lift and carry, plaintiff responded: "Common household things."

September 18, 2007 -- Records from Sacramento County Department of Health & Human Services indicates that plaintiff had been without his diabetes medication for the prior two weeks.

April 28, 2008 -- Dr. Robert Wendel reported that plaintiff's vision was 20/50 in the right and 20/40 in the left. Pressure was 18 in both eyes. Dr. Wendel diagnosed active proliferative diabetic retinopathy in the right eye (OD), and nonproliferative diabetic retonopathy in the left eye (OS). A laser procedure for the right eye was scheduled.

April 30, 2008 -- Agency consultative doctor Hahn X. Pham, M.D., submitted a physical residual functional capacity assessment. Dr. Pham opined that plaintiff could occasionally lift 50 pounds and frequently lift up to 25 pounds. Plaintiff could sit/stand/walk for six hours in an 8-hour workday. Plaintiff's ability to push/pull were found to be unlimited. No postural, visual, communicative, or manipulative limitations were noted. As to environmental limitations, Dr. Pham concluded that plaintiff should avoid exposure to fumes, odors, dusts, etc. Dr. Pham noted that plaintiff was not compliant with medications, that his asthma "resolved with treatment in the clinic," and that his activities of daily living were "not that limiting now." Dr. Pham felt that plaintiff could perform medium work with the noted environmental limitations.

June 26, 2008 -- Agency consultative doctor Sharon Amon, M.D., submitted a physical residual functional capacity assessment. Dr. Amon concluded that plaintiff could occasionally lift 20 pounds and frequently lift 10 pounds. Plaintiff could sit/stand/walk for six hours in an 8-hour workday. Plaintiff push/pull ability was found to be unlimited. No postural, visual, communicative, or manipulative limitations were noted. As with Dr. Pham, Dr. Amon did not feel that plaintiff should be exposed to fumes, odors, dusts, etc. As to the difference between his opinion and Dr. Pham's opinion, Dr. Amon stated that, due to plaintiff's statements that his conditions are worse and that he is unable to walk more than 10 minutes at a time, "light RFC would be more appropriate." It is interesting to note that, despite citing plaintiff's stated inability to walk more than 10 minutes at a time, Dr. Amon nonetheless concluded that plaintiff could sit/stand/walk for up to six hours in a normal workday.

August 24, 2009 -- A report by Dr. Wendel indicates that plaintiff's vision was 20/40 in the right and 20/25 in the left. Dr. Wendel assessed persistent diabetic macular edema, greater on the right than left. A laser procedure was scheduled to address the problem.

December 10, 2009 -- Sylvia A. Hamilton, Ph.D., reported on a psychological evaluation of plaintiff performed at the request of plaintiff's attorney. At the time of the evaluation, plaintiff complained of the following physical problems: asthma, allergies, numbness in his feet, edema, diabetes, vision problems, retinal neuropathy, high blood pressure, and neuropathy in the hands. As to his psychological history, plaintiff reported that he had never been hospitalized in a psychiatric facility, had never been diagnosed with a psychological disorder, and had no family psychiatric history. Plaintiff also reported that he socializes with family and friends and enjoys attending his son's sporting events. As to daily activities, the doctor noted:

Mr. Rutledge stated that he gets up at 7:00 a.m. He stated that he has adequate bathing and grooming habits. He stated that he helps his mother to do some chores in the house. He spends time with his son and attends his sporting events. He indicated that he does not make his own meals. He stated that he does not help with shopping. He indicated that he probably needs help managing his funds, a payee is therefore needed.

On mental status examination, plaintiff was cooperative, though he became anxious upon administration of the WAIS-III test. Plaintiff's affect was of normal range, and his mood was happy. There was no evidence of psychotic symptoms. Plaintiff was able to express thoughts logically. As to intellectual functioning, Dr. Hamilton opined that the WAIS-III results showed that plaintiff has borderline intellectual functioning. Dr. Hamilton reported the following diagnosis:

With regard to his diagnosis, the present results suggest that Mr. Rutledge has suffered from developmental delays, which likely affect his current life experience. He appears to have difficulty with timed tasks that require concentration, attention, memory, and processing speed as evidenced by his below average performance on the WAIS-III subtests, hence the diagnosis of Borderline Intellectual Functioning. The diagnosis of Dysthymic Disorder is offered because he reportedly has experienced mild feelings of depression for an extended period of time. These symptoms do appear to interfere with his cognitive functioning in his daily life.

As to plaintiff's functional capabilities, Dr. Hamilton opined as follows:

Mr. Rutledge has below-average intelligence and inadequate academic skills. His learning potential is therefore considered to be below average. With regard to his test results, Mr. Rutledge is able to carry out simple one-part tasks. He is not capable of carrying out two-part or complex tasks. There is some moderate impairment in his personal skills or daily functioning. He is not capable of traveling independently. Mr. Rutledge's test results indicate that he is not capable of handling his own finances. He would likely require a payee.

Mr. Rutledge has a Dysthymic Disorder. His dysthymia is likely to require access to psychiatric and/or medical treatment. He can be expected to have moderate difficulty meeting the demands of work settings for sustained concentration, mental alertness, task completion, and work efficiency. His potential to perform duties that require good hand-eye coordination are likely to be impeded by decreased finger to hand dexterity. He has some impairment in his interactions with peers, given his limited close interpersonal relationships. In a work setting, he is more inclined to work with specific instructions within his skill set avoiding complex tasks.


The court reviews the Commissioner's final decision to determine whether it is:

(1) based on proper legal standards; and (2) supported by substantial evidence in the record as a whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). "Substantial evidence" is more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). It is ". . . such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, including both the evidence that supports and detracts from the Commissioner's conclusion, must be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner's decision simply by isolating a specific quantum of supporting evidence. See Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If ...

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