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Shad P. Boyd v. Michael J. Astrue


September 27, 2012


The opinion of the court was delivered by: Patrick J. Walsh United States Magistrate Judge



Plaintiff Shad Boyd appeals a decision by Defendant Social Security Administration ("the Agency"), denying his application for Disability Insurance benefits ("DIB"). He claims that the Administrative Law Judge ("ALJ") erred when he failed to: (1) comply with the Appeals Council's remand orders; and (2) properly consider the workers' compensation findings. (Joint Stip. at 3.) For the reasons explained below, the appeal is denied and the action is dismissed with prejudice.


In September 2005, Plaintiff applied for DIB, alleging that he had been disabled since February 2004, due to degenerative disc disease and loss of a finger. (Administrative Record ("AR") 336-38, 356, 363-65.) The Agency denied the application initially and on reconsideration. Plaintiff then requested and was granted a hearing before an ALJ. In January 2009, he appeared with counsel at the hearing. (AR 24-62.) In March 2009, the ALJ held a supplemental hearing. (AR 63-124.) In June 2009, the ALJ issued a decision, finding that Plaintiff was disabled as of May 16, 2006, but not before then.*fn1 (AR 201-11.)

Plaintiff appealed to the Appeals Council, which remanded the case to the ALJ for further proceedings. (AR 311-13.) The ALJ then held another hearing on March 22, 2010, and, on May 4, 2010, issued a second decision, again concluding that Plaintiff was not disabled prior to May 16, 2006. (AR 11-19, 125-91.) Plaintiff appealed to the Appeals Council, which denied review. (AR 1-3.) He then commenced the instant action.


A. The ALJ's Failure to Adhere to the Appeal's Council's Remand Order Following the ALJ's initial decision, Plaintiff appealed to the Appeals Council, arguing that the ALJ had erred. The Appeals Council agreed and sent the case back to the ALJ with instructions to, among other things, reconsider the credibility finding and re-evaluate Plaintiff's neck and back ailments. (AR 311-13.) Plaintiff complains that the ALJ failed to follow the Appeals Council's remand order and argues that, as a result, the ALJ's decision should be reversed. For the following reasons, this argument is rejected.

The Court has a limited role in reviewing Agency decisions. It is tasked with determining whether the Agency's final decision is supported by substantial evidence and is not based on legal error. See 42 U.S.C. § 405(g); Tyler v. Astrue, 305 F. App'x 331, 332 (9th Cir. 2008); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). In Tyler, the Ninth Circuit explained in an unpublished decision closely on point:

The district court properly declined to evaluate whether the ALJ's second decision satisfied the demands of the Appeals Council's remand . . . . [F]ederal courts only have jurisdiction to review the final decisions of administrative agencies. When the Appeals Council denied review of the ALJ's second decision, it made that decision final, and declined to find that the ALJ had not complied with its remand instructions.

Id. at 332.

Thus, the issue of whether the ALJ followed the Appeals Council's remand order is not properly before the Court. As such, Plaintiff's claim here is rejected.

Plaintiff argues that the ALJ failed to properly evaluate Plaintiff's credibility and failed to make specific findings regarding credibility. (Joint Stip. at 4-8.) The record does not support this claim.

In his decision following remand, the ALJ incorporated his earlier decision and supplemented it with additional findings. (AR 12.) In the earlier decision, the ALJ found that Plaintiff's ability to perform daily activities, like taking care of his children, driving a car, changing his 25-pound one-year-old, washing dishes, doing laundry, and taking out the trash, was inconsistent with his claim that he was severely limited by pain. (AR 208.) In addition, the ALJ noted that some of the doctors who examined Plaintiff questioned his sincerity and suggested that he might be exaggerating his claims. (AR 208.) In the second decision, the ALJ added to this the medical expert's observations from the administrative hearing following remand that Plaintiff's complaints were disproportionate to the clinical findings. (AR 16.)

These were legitimate reasons for questioning Plaintiff's testimony. See Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (upholding ALJ's finding that Plaintiff was not credible based in part on his ability to perform daily activities, including caring for his ailing sister); Thomas v. Barnhart, 278 F.3d 947, 959-60 (9th Cir. 2002) (affirming ALJ's credibility finding based in part on fact that claimant exaggerated her condition). And they are supported by the record. (AR 163-66, 432, 455.) Thus, the ALJ's finding that Plaintiff's testimony regarding his pain prior to May 2006 was not credible will not be disturbed.

Plaintiff also takes exception to the ALJ's findings regarding his neck and back disorders. (Joint Stip. at 15-17.) Here, again, the Court finds that the ALJ provided sufficient support for his findings. In his 2009 decision, the ALJ pointed out that the agreed medical examiner in his workers' compensation case determined on September 30, 2004---three months before Plaintiff's insurance expired--that Plaintiff was capable of performing light work, despite his pain. (AR 206.) The ALJ emphasized that Plaintiff was able to perform numerous daily activities that were inconsistent with incapacitating pain. (AR 208.) The ALJ also noted that some of the doctors who examined Plaintiff questioned his sincerity. (AR 208.)

Following remand, the ALJ added to this evidence the testimony of medical expert Arthur Lorber, a board certified orthopedic surgeon. (AR 135-74.) According to Dr. Lorber, Plaintiff's degenerative disc disease and neck pain did not preclude him from performing light work in December 2004. (AR 141-43.) This evidence, taken as a whole, is sufficient to support the ALJ's finding that Plaintiff was not disabled prior to his date last insured.

B. Dr. Feiwell's Findings

In January 2002, Plaintiff injured his back driving a bus when he drove over a dip in the street and banged down hard on his seat. (AR 591.) He was able to continue working that day but later began experiencing pain. (AR 591.) A week later, he was placed on light duty for about two months and, in April 2002, he returned to work without restrictions. (AR 591.)

Plaintiff, however, continued experiencing pain and, in September 2002, was referred to Dr. John Sasaki, a pain management specialist. (AR 591.) Thereafter, Dr. Sasaki became Plaintiff's treating physician. Dr. Sasaki prescribed epidural injections, Motrin, and physical therapy. (AR 593.) He authorized Plaintiff to continue working full time without restriction until May 2003, when Plaintiff reported that he was experiencing persistent, increased pain in his neck and back. (AR 593-95.) Plaintiff was treated with an epidural and physical therapy. (AR 596.) He was placed on medical leave for three days as a result. (AR 595.) In August 2003, he was excused from work for three more days and in October 2003 for two more. (AR 596.)

In October 2003, Plaintiff re-injured his back when he drove his bus into a curb. (AR 597.) He was seen by Dr. Sasaki in November 2003, 18 days after the accident. (AR 597.) Dr. Sasaki did not place Plaintiff on medical leave and treated him with epidural injections and nerve blocks. (AR 597.) Plaintiff returned to Dr. Sasaki in February 2004 and reported "near complete relief" from his pain following the epidurals and nerve blocks. (AR 598.)

In March 2004, Plaintiff returned to Dr. Sasaki, complaining that he had recently suffered another injury when he banged down hard on his seat again while driving his bus. (AR 584.) Dr. Sasaki concluded that Plaintiff was temporarily totally disabled until April 1, 2004. (AR 584.) Plaintiff was treated with epidural injections, medication, and physical therapy. (AR 585.) In subsequent visits through October 2005, Dr. Sasaki noted that Plaintiff was either "off work" or temporarily totally disabled. (AR 584-89.)

Plaintiff argues that the ALJ, the vocational expert, and the medical expert misunderstood Dr. Sasaki's use of the term "temporarily totally disabled" in the context of the workers' compensation case. (Joint Stip. at 22-24.) He contends that they interpreted this term to mean that Plaintiff was unable to perform his job as a bus driver but could perform other work. (Joint Stip. at 23.) He argues that the term actually means that he was incapable of performing any work. (Joint Stip. at 23.) According to Plaintiff, this misunderstanding tainted the ALJ's decision. This argument is rejected.

State workers' compensation findings are not binding on the Agency in disability cases. Macri v. Chater, 93 F.3d 540, 543-44 (9th Cir. 1996); Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988). Nor are workers' compensation doctors' conclusions regarding the ultimate issue of disability. Tomasetti, 533 F.3d at 1041. Assuming without deciding that the ALJ, the vocational expert, and the medical expert misunderstood the meaning of temporarily totally disabled, any error does not warrant reversal.

Dr. Sasaki's conclusion that Plaintiff was disabled in workers' compensation terms, i.e., he was unable to perform any work, was not binding on the ALJ and, therefore, the ALJ's error in misunderstanding that term does not warrant reversal.*fn2

In September 2004, Plaintiff was examined by doctor Earl Feiwell, the "agreed medical examiner" in Plaintiff's workers' compensation case. (AR 441-58.) Dr. Feiwell determined that Plaintiff would experience slight to moderate pain with activity, increasing to moderate pain with prolonged standing, walking, bending, and lifting, and lead to severe pain with heavier activity. (AR 456.) Plaintiff argues that the ALJ erred in analyzing Dr. Feiwell's findings. (Joint Stip. at 19-21.) He points out that, in workers' compensation terms, moderate pain would cause a marked limitation in activity and severe pain would preclude it. (Joint Stip. at 20.) In Plaintiff's view, this means that Dr. Feiwell found that Plaintiff was incapable of working in 2004. The record does not support Plaintiff's argument.

In his 2009 decision, the ALJ discussed Dr. Feiwell's findings in detail. (AR 206-07.) Importantly, as the ALJ pointed out, Dr. Feiwell determined in September 2004 that, despite his back and neck ailments and the pain that they caused, Plaintiff had the residual functional capacity to perform light work. (AR 206, 456.) In his 2009 decision, the ALJ found that Plaintiff could perform sedentary work prior to May 2006, which is obviously more restrictive than Dr. Feiwell's finding that he could perform light work. (AR 204-08.) In his 2010 decision, the ALJ incorporated the 2009 decision and, after discussing additional evidence he considered, including Dr. Lorber's testimony, he concluded that, prior to May 2006, Plaintiff was capable of performing light work. (AR 15-16.)

The fact that the ALJ did not analyze the workers' compensation terms used by Dr. Feiwell and discuss how they corresponded to social security terms was not error. Clearly, Dr. Feiwell believed that Plaintiff was capable of performing light work in September 2004--three months before Plaintiff's insurance ran out---regardless of any limitations due to pain. As such, the ALJ's finding that Plaintiff could work was in line with Dr. Feiwell's findings and will not be disturbed.

IV. CONCLUSION For these reasons, the Court concludes that the Agency's decision denying benefits is affirmed and the action is dismissed with prejudice.


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