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Robert Carey v. Michael J. Astrue

November 30, 2012

ROBERT CAREY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Hon. Jay C. Gandhi United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Robert Carey ("Plaintiff") challenges the Social Security Commissioner's decision denying his application for disability benefits. Four issues are presented for decision here:

1. whether the Administrative Law Judge ("ALJ") erred at step two by failing to find a severe impairment of the lumbar spine, (see Joint Stip. at 2-4, 5-6);

2. whether the ALJ improperly rejected the opinion of the consultative examiner, Dr. Concepcion A. Enriquez, regarding Plaintiff's hand limitations, (see id. at 7-8, 9-10);

3. whether the ALJ properly considered the opinion of Plaintiff's treating physician, Dr. Antoinette Marie Stewart, (see id. at 10-11, 13-14); and

4. whether the ALJ properly considered Plaintiff's subjective complaints. (See id. at 14-16, 19-20.)

The Court addresses -- and rejects -- Plaintiff's contentions below. A. The ALJ's Step Two Determination

Plaintiff first argues that the ALJ erred at step two by failing to find a severe impairment of the lumbar spine. (Joint Stip. at 2-4, 5-6.) This is so because a CT scan, dated July 16, 2010, revealed that Plaintiff has moderate to severe degenerative disc disease. (AR at 816.) In light of this evidence, the ALJ's step two determination was undoubtedly erroneous. See Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (a conclusion that an impairment is non-severe must be "clearly established" by the medical evidence).

But such an error is harmless where, as here, the non-severe impairment was also considered at subsequent steps. Burch v. Barnhart, 400 F.3d 676, 683-84 (9th Cir. 2005). For instance, the ALJ discussed Plaintiff's back pain and degenerative disc disease when determining Plaintiff's residual functional capacity. Indeed, the back condition was thoroughly supported with citations to Plaintiff's own testimony, (AR at 14; see AR at 51-54); his treating physician's diagnosis and treatment plan, (AR at 15; see AR at 830, 836-38); and the consultative examiner's opinion, (AR at 16; see AR at 220-23).

Thus, despite the ALJ's erroneous step two determination, Plaintiff's back condition was nonetheless considered at subsequent steps. Accordingly, the Court finds no reversible error here.

B. The ALJ's Rejection of Dr. Enriquez's Consultative Opinion Plaintiff next argues that the ALJ improperly determined that Plaintiff lacked hand limitations. (Joint Stip at. 7.) Specifically, Plaintiff takes issue with the ALJ's rejection of Dr. Enriquez's consultative opinion that Plaintiff is limited to occasional fingering and fine manipulation. (Joint Stip. at 7; see AR at 223.) The Court, however, is unpersuaded by Plaintiff.

An ALJ may reject the controverted opinion of an examining physician only for "specific and legitimate reasons that are supported by substantial evidence." Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (quoting Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995)).

Here, the ALJ gave such a reason by finding that the hand limitations offered by Dr. Enriquez were undermined by Plaintiff's own prior statements. (AR at 15.) In particular, the ALJ pointed to a March 16, 2010 treating record by Dr. Bozorgchami. (Id.; see AR at 605.) According to this record, Plaintiff stated that "his psychiatrist . . . started him on [P]ropranolol . . . [,] which has since resolved his symptoms." (AR at 605.)

The ALJ understood these "symptoms" to be referring to Plaintiff's hand tremors. (See AR at 15.) Plaintiff challenges this interpretation, insisting that the "symptoms" must be psychological since the Propranolol ...


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