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Jeffrey W. Braeger v. Michael J. Astrue

October 17, 2012

JEFFREY W. BRAEGER,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

ORDER DIRECTING ENTRY OF JUDGMENT IN FAVOR OF DEFENDANT MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, AND AGAINST PLAINTIFF JEFFREY W. BRAEGER

Jeffrey W. Braeger ("Plaintiff") asserts he is entitled to disability insurance benefits under Title II of the Social Security Act. Plaintiff argues the administrative law judge ("ALJ") erred evaluating of the medical evidence and determining Plaintiff's credibility. Therefore, Plaintiff seeks judicial review of the administrative decision denying his claim for benefits. For the reasons set forth below, the administrative decision is AFFIRMED.

PROCEDURAL HISTORY

Plaintiff filed an application for disability insurance benefits on June 9, 2007, alleging disability beginning April 16, 2006. (Doc. 8-3 at 21). The Social Security Administration denied his claims initially and upon reconsideration. Id. After requesting a hearing, Plaintiff testified before an ALJ on September 16, 2009. Id. The ALJ determined Plaintiff was not disabled under the Social Security Act, and issued an order denying benefits on January 29, 2010. Id. at 21-30. Plaintiff requested a review by the Appeals Council of Social Security, which found no reason to review the 2 ALJ's decision on September 19, 2011.*fn1 Id. at 2-6. Therefore, the ALJ's determination became the 3 decision of the Commissioner of Social Security ("Commissioner"). 4

Plaintiff initiated this action on November 17, 2011, seeking review of the Commissioner's 5 decision. (Doc. 1). On July 18, 2012, Plaintiff filed his opening brief, asserting the ALJ failed to 6 follow the proper legal standards and the decision was not supported by substantial evidence. (Doc. 7 11). Defendant filed a brief in opposition on September 17, 2012 (Doc. 16), to which Plaintiff filed a 8 reply on October 2, 2012. (Doc. 16). 9

STANDARD OF REVIEW

District courts have a limited scope of judicial review for disability claims after a decision by the Commissioner to deny benefits under the Social Security Act. When reviewing findings of fact, such as whether a claimant was disabled, the Court must determine whether the Commissioner's decision is supported by substantial evidence or is based on legal error. 42 U.S.C. § 405(g). The ALJ's determination that the claimant is not disabled must be upheld by the Court if the proper legal standards were applied and the findings are supported by substantial evidence. See Sanchez v. Sec'y of Health & Human Serv., 812 F.2d 509, 510 (9th Cir. 1987).

Substantial evidence is "more than a mere scintilla. It 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. v. NLRB, 305 U.S. 197 (1938)). The record as a whole must be considered, because "[t]he court must consider both evidence that supports and evidence that detracts from the ALJ's conclusion." Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).

DISABILITY BENEFITS

To qualify for benefits under the Social Security Act, Plaintiff must establish he is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment that has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. 2 § 1382c(a)(3)(A). An individual shall be considered to have a disability only if: 3 his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. § 1382c(a)(3)(B). The burden of proof is on a claimant to establish disability. Terry v. 8 Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). When a claimant establishes a prima facie case of 9 disability, the burden shifts to the Commissioner to prove the claimant is able to engage in other substantial gainful employment. Maounis v. Heckler, 738 F.2d 1032, 1034 (9th Cir. 1984).

DETERMINATION OF DISABILITY

To achieve uniform decisions, the Commissioner established a sequential five-step process for evaluating a claimant's alleged disability. 20 C.F.R. §§ 404.1520 (a)-(f). The process requires the ALJ to determine whether Plaintiff (1) engaged in substantial gainful activity during the period of alleged disability, (2) had medically determinable severe impairments (3) that met or equaled one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1; and whether Plaintiff (4) had the residual functional capacity to perform to past relevant work or (5) the ability to perform other work existing in significant numbers at the state and national level. Id. The ALJ must consider objective medical evidence and opinion (hearing) testimony. 20 C.F.R. §§ 404.1527, 404.1529.

A. Relevant Medical Opinions*fn2

Dr. Fabria Vesali performed a comprehensive neurologic evaluation on December 19, 2007. (Doc. 8-11 at 50-54). Plaintiff complained of having chronic low back pain for two years after suffering a back injury at work when "[a]n air conditioner fell and hit him on the chest from the second floor." Id. at 50. Plaintiff reported the pain was aggravated by "bending, moving, walking more than 15 feet, lying down flat on his back." Id. In addition, Plaintiff reported "he was exposed to 2 a chemical called TDI in 1989 that induced severe asthma," which was aggravated by humidity, dust, 3 and smoke. Id. at 51. Further, Plaintiff stated he had "a history of passing out and shortness of breath 4 due to asthma." Id. Plaintiff informed Dr. Vesali that he did not go grocery shopping, cook, or do any 5 household chores. Id. 6

Dr. Vesali noted Plaintiff "had some difficulty taking off his shoes and putting them back on."

(Doc. 8-11 at 52). In addition, Dr. Vesali observed: "The claimant was walking with a normal gait 8 outside the examining room. When I asked him to walk in the exam room, he was walking with an 9 obvious limp. He did not have any difficulty getting on or off the exam table." Id. at 51-52. Dr. Vesali performed several tests on Plaintiff's back, including the Spurling test and Phalen test, which had negative results. Id. at 53. Also, Dr. Vesali found "[a]xial compression of [the] spine did not cause aggravated low back pain." Id. Plaintiff gave an "inconsistent effort" in his motor strength test, but Dr. Vesali opined Plaintiff's motor strength was "5/5 in upper and lower extremities bilaterally." Id. at 53. Although Plaintiff reported "a history of passing out," Dr. Vesali noted Plaintiff did not have any bruising, signs of erythema or wounds from hitting objects while falling. Id. at 54. Based upon the examination, Dr. Vesali offered the following residual functional capacity assessment:

[T]he claimant should be able to stand and walk for four hours in an eight-hour day with normal breaks every two hours for rest and stretching. The limitation is due to chronic low back pain with positive MRI for L5 nerve root displacement.

The claimant should be able to sit six hours in an eight-hour day with normal breaks.

The claimant does not need or use an assistive device for ambulation.

The claimant should be able to lift 20 pounds occasionally and 10 pounds frequently. Limitation is due to chronic low back pain.

Id. at 54. Further, Dr. Vesali opined Plaintiff had "mild postural limitations" due to his low back pain, and required environmental limitations to prevent aggravation of his asthma. Id.

On January 2, 2008, Plaintiff reported to Cedarwood Medical Group for a consultative examination and pulmonary functioning test. (Doc. 8-11 at 55). However, the test was not administered because Plaintiff exhibited "labored breathing" and "respiratory distress." Id. at 55-56. Plaintiff returned to Cedarwood on February 21, 2008 for the pulmonary functioning test, and Dr. Joseph Garfinkle opined Plaintiff demonstrated "very severe restriction." Id. at 57. Because Plaintiff 2 passed out, the consultative examination was stopped prematurely. Id. at 60. 3

In March and April 2008, Dr. Jon Malan treated Plaintiff at Tehama County Health Services

Agency. (Doc. 8-11 at 78-82). Dr. Malan noted Plaintiff brought "spine clinic notes showing bulging 5 discs at L4-5 with radiculopathy." Id. at 79. In addition, Dr. Malan opined Plaintiff "has asthma with 6 some COPD from smoking." Id. He observed Plaintiff was "apparently in need of spinal surgery on 7 his L4 vertebrae area," but was applying for disability. Id. In addition, Dr. Malan noted Plaintiff was 8 "looking to get some surgeries other procedures done for the pinched nerve in his back that is sending 9 electrical shock type pains, pins and needs, and burning ...


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