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Crist Richardson v. Michael J. Astrue

October 29, 2012

CRIST RICHARDSON,
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 CRIST RICHARDSON

Crist Richardson ("Plaintiff") asserts he is entitled to disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. Plaintiff argues the administrative law judge ("ALJ") erred in evaluating the medical records and assessing his subjective complaints. Therefore, Plaintiff seeks judicial review of the administrative decision denying benefits. For the reasons set forth below, the ALJ's decision is AFFIRMED.

PROCEDURAL HISTORY

Plaintiff filed applications for disability insurance benefits and supplemental security income on May 15, 2008, alleging disability beginning May 6, 2008. (Doc. 11-3 at 12). The Social Security Administration denied his claims initially and upon reconsideration. Id. After requesting a hearing, Plaintiff testified before an ALJ May 6, 2010. Id. The ALJ determined Plaintiff was not disabled under the Social Security Act, and issued an order denying benefits on September 4, 2009. Id. at 12-23. Plaintiff requested a review by the Appeals Council of Social Security, which denied review of the ALJ's decision on June 18, 2010. Id. at 2-4. Therefore, the ALJ's determination became the 2 decision of the Commissioner of Social Security ("Commissioner"). 3

STANDARD OF REVIEW

District courts have a limited scope of judicial review for disability claims after a decision by 5 the Commissioner to deny benefits under the Social Security Act. When reviewing findings of fact, 6 such as whether a claimant was disabled, the Court must determine whether the Commissioner's 7 decision is supported by substantial evidence or is based on legal error. 42 U.S.C. § 405(g).

The 8 ALJ's determination that the claimant is not disabled must be upheld by the Court if the proper legal 9 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. § 1382c(a)(3)(A). An individual shall be considered to have a disability only if: 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. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). When a claimant establishes a prima facie case of 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).

ADMINISTRATIVE DETERMINATION

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, 416.920 (a)-(f). The process 4 requires the ALJ to determine whether Plaintiff (1) engaged in substantial gainful activity during the 5 period of alleged disability, (2) had medically determinable severe impairments (3) that met or equaled 6 one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1; and whether 7 Plaintiff (4) had the residual functional capacity to perform to past relevant work or (5) the ability to 8 perform other work existing in significant numbers at the state and national level. Id. The ALJ must 9 consider objective medical evidence and testimony. 20 C.F.R. §§ 404.1527, 416.927, 416.929.

A. Relevant Medical Evidence

Plaintiff participated in chemical abuse group counseling from May to June 2008. (See Doc. 11-8 at 14-77). Discussion topics included building support systems, using skills to maintain sobriety, and relapse prevention. See, e.g., id. at 14, 20, 32. Melody Lewis noted Plaintiff seemed "very attentive to information provided and group discussions," but still appeared "to need a lot of attention." Id. at 14. Likewise, Ceri Hulugalle believed Plaintiff exhibited "attention-seeking behavior" during his group therapy sessions. Id. at 20, 23.

On July 23, 2008, Dr. Bobba noted Plaintiff stated he could only walk one block, but was "not alleging a physical condition." (Doc. 11-8 at 78-79). Dr. Bobba opined Plaintiff's physical impairment was "non severe." Id. at 79.

Dr. Alan Goldberg completed a mental residual functional capacity assessment and psychiatric review technique form on August 1, 2008. (Doc. 11-8 at 80-97). According to Dr. Goldberg, Plaintiff was "not significantly limited" in his ability to understand, remember, and carry out very short and simple instructions; perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; sustain an ordinary routine without special supervision; make simple work-related decisions; and complete a normal work-day and workweek without interruptions from psychosocially based symptoms. Id. at 80-81. However, Plaintiff was "moderately limited" in his ability to understand, remember, and carry out detailed instructions. Id. at 80. Further, Dr. Goldberg opined Plaintiff had 'mild" limitations in his activities of daily living and maintaining social functioning, and "moderate" difficulty in maintaining concentration, persistence, or pace. Id. at 94. 2

Dr. Goldberg concluded Plaintiff's impairment was not expected to last twelve months. Id. at 84. 3 On November 5, 2008, Dr. Philip Walls completed a psychiatric review of the record, and 4 concluded Plaintiff suffered from an affective disorder, substance abuse in alleged remission and a 5 bipolar disorder. (Doc. 11-9 at 30- 39). Dr. Walls opined an intellectual functioning test would be 6 helpful to assess Plaintiff's "alleged poor memory [and] current mental status." Id. at 42. 7 Dr. Emanuel Dozier performed a comprehensive internal medicine evaluation on November 19, 2008. (Doc. 11-9 at 47-51). Plaintiff reported his arthritis caused "stiffness in the morning that 9 last[ed] 30 minutes." Id. at 47. In addition, Plaintiff informed Dr. Dozier that he had "limitations on standing and walking to one hour for standing, one block for walking, sitting 20 minutes, and lifting 50 pounds." Id. Further, Plaintiff reported his pain was "10/10," and it was "aggravated with bending, twisting, stopping, standing longer than one hour, walking more than one block, sitting more than 20 minutes, and lifting more than 50 pounds." Id. at 48. Dr. Dozier observed Plaintiff walked "with a left antalgic gait" and "would benefit from the use of a cane." Id. at 48, 51. Based upon the examination, Dr. Dozier opined Plaintiff would be able to sit, stand, or walk up to six hours; lift ten pounds frequently and twenty pounds frequently. Id. at 50-51. In addition, he determined Plaintiff "would have postural restrictions on occasional bending, stooping, crouching, pushing, and pulling due to the back, chronic obstructive pulmonary disease, and arthritis. Id. at 51. Finally, Plaintiff required "environmental restrictions on temperature extremes of heat, cold, dust, fumes, occasional climbing ladders, working on inclined planes or uneven terrain without the aid of a cane." Id.

On December 10, 2008, Dr. Frye prepared a physical residual functional capacity assessment. (Doc. 11-9 at 52-57). According to Dr. Frye, Plaintiff had the ability to lift ten pounds frequently and twenty pounds occasionally, stand and/or walk about six hours in an eight-hour day, and sit about six hours in an eight-hour day. Id. at 53. Dr. Frye opined Plaintiff was limited in his ability to push and pull with his lower extremities. Id. Further, Plaintiff could never climb ladders, ropes, or scaffolds; but could climb ramps and stairs occasionally. Id. at 54-55. Also, Dr. Frye determined Plaintiff was limited to occasional stooping, kneeling, crouching, and crawling due to his low back pain with radiation into his legs. Id. at 55.

Dr. Kimball Hawkins performed a psychological evaluation to determine Plaintiff's intellectual 2 functioning on January 12, 2009. (Doc. 11-9 at 58-63). Plaintiff informed Dr. Hawkins that he had 3 attended special education classes and had a tenth-grade education. Id. at 59. Plaintiff reported "he 4 stopped working because he had a nervous breakdown because of stress." Id. Dr. Hawkins opined 5 Plaintiff's test scores on the Bender Gestalt II and Wechsler Adult Intelligence Scale- III tests were "in 6 the significant sub-average range." Id. at 61. According to Dr. Hawkins, "The scores [were] lower 7 than what one would expect of someone with his history, although it may be the root of many of his 8 problems." Id. Dr. Hawkins concluded:

His ability to understand, remember, and carry out complex instructions is poor. His ability to understand, remember, and carry out simple instructions is adequate on familiar tasks. His ability to maintain concentration, attention, and persistence is poor. His ability to perform activities within a schedule and maintain regular attendance is poor presently. His ability to complete a normal work day and work week without interruptions from psychologically based symptoms is poor. His ability to respond appropriately to changes in work setting is poor. His ability to manage his own money is considered to be poor.

Id. at 61. In addition, Dr. Hawkins noted Plaintiff was "able to read simple notes and messages, but does not write well and has poor spelling. Id. at 60. Dr. Hawkins found Plaintiff had a borderline score on his malingering test. Id. at 61. In conclusion, Dr. Hawkins opined Plaintiff had a "[m]ild intellectual disability. Id. at 63.

On February 14, 2009, Dr. Luu completed a psychiatric review technique and mental residual functional capacity assessment. (Doc. 11-9 at 64-77). Dr. Luu opined Plaintiff had mild difficulties with his activities of daily living and in maintaining concentration, persistence, or pace. Id. at 72. In addition, Dr. Luu found Plaintiff was "moderately limited" in his ability to interact appropriately with the general public, and ability to understand, remember, and carry out detailed instructions. Id. at 75-76. Plaintiff was "not significantly limited" in other areas of understanding, memory, concentration, persistence, and adaption. Id. Specifically, Dr. Luu opined Plaintiff's concentration and persistence was "sufficient ability to carry out short instructions, perform activities with directions without additional support and to maintain attention in 2-[hour] increments, perform activities within a schedule, maintain regular attendance, and to be punctual with customary routine. Id. at 77. Further, Dr. Luu determined Plaintiff's memory was "sufficient . . . to remember locations and work-like procedures, understand and remember simple instructions." Id. Dr. Luu concluded Plaintiff could 2 perform simple repetitive tasks with limited public contact. Id. 3 Dr. Mark Harashasky offered an assessment of Plaintiff's mental impairment on August 9, 2010. (Doc. 11-12 at 25-27). Dr. Harashasky opined Plaintiff's ability to understand, remember, and 5 carry out instructions was impaired; Plaintiff had "mild" limitations with simple instructions, and 6 "moderate" limitations with complex instructions. Id. at 25. According to Dr. Harashasky, Plaintiff 7 "suffers from a depressed mood, which may impair his ability to carry out executive functioning." Id. 8 In addition, Dr. Harashasky opined "his emotional state may affect his ability to function socially/ 9 occupationally." Id. at 26.

B. Hearing Testimony

Plaintiff's testimony

Plaintiff testified before the ALJ on May 6, 2010. (Doc. 11-3 at 31). Plaintiff reported he had a ninth-grade education because he dropped out of school in the tenth grade. Id. at 35. He said he was unable to read above a second grade level. Id. at 52. Plaintiff testified he had limited vocational training and had been trained "hands on working on IBM typewriters" during the 1980s. Id. at 35.

According to Plaintiff, he last worked at a Wal-Mart as part of the maintenance crew. (Doc. 11-3 at 40). He said his duties included cleaning bathrooms, mopping the floors, and cleaning up spills. Id. Plaintiff estimated that the cart he pushed around was between 75 and 100 pounds, and that he had to lift a maximum of ten pounds. Id. According to Plaintiff, he performed maintenance at a Ramada Express hotel prior to working at Wal-Mart. Id. at 36. He testified that Ramada hired him "as a maid to clean rooms." Id. After six months, Plaintiff became a "houseman," and Plaintiff reported the work required him to "empt[y]the maid's carts, trash and linens from the rooms." Id. Plaintiff estimated he had to lift "[a]bout 100 pounds, 150 pounds" while performing these duties because the "linen bags can get pretty heavy." Id. at 37. Also, Plaintiff also worked "deep cleaning lobbies," which required him to lift "maybe 10 pounds," and performing general janitorial duties, such as fixing items in rooms and painting. Id. at 37-38.

Plaintiff reported he was no longer able to work after suffering "a nervous breakdown at Wal-Mart." (Doc. 11-3 at 39). Plaintiff explained: " Pressure was building up. I didn't know I was bipolar, didn't know I had to take medicine." Id. Also, Plaintiff reported his leg "went numb" due to arthritis 2 in November 2009. Id. at 41-42. Noting Plaintiff was collecting unemployment and the numbness in 3 Plaintiff's leg started after his application date, the ALJ questioned why Plaintiff was seeking Social 4 Security ...


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