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Rogelio Martinez, Jr v. Michael J. Astrue

January 25, 2013

ROGELIO MARTINEZ, JR.,
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 ROGELIO MARTINEZ

Rogelio Martinez, Jr. ("Plaintiff") asserts he is entitled to disability insurance benefits under Title II of the Social Security Act. Plaintiff asserts the administrative law judge ("ALJ") erred in rejecting the opinion of his treating physician, and appeals the decision denying his application. For the reasons set forth below, the administrative decision is AFFIRMED.

PROCEDURAL HISTORY

On January 15, 2008, Plaintiff filed an application for benefits, alleging disability beginning November 17, 2008. (Doc. 11-4 at 5). The Social Security Administration denied his claim initially and upon reconsideration. Id. After Plaintiff testified at a hearing on July 20, 2009, an ALJ determined Plaintiff was not disabled and denied benefits on October 8, 2009. Id. at 5-13.

Plaintiff filed his second application for benefits on November 6, 2009, alleging disability beginning July 21, 2009. (Doc. 11-6 at 4). Again, the Social Security Administration denied his claim initially and upon reconsideration. (Doc. 11-5 at 80-84, 87-92). After requesting a hearing, Plaintiff 2 testified before an administrative law judge ("ALJ") on October 5, 2011. (Doc. 11-3 at 26). The ALJ 3 determined Plaintiff was not disabled under the Social Security Act, and issued an order denying 4 benefits on October 31, 2011. Id. at 20. Plaintiff requested review by the Appeals Council of Social 5 Security, which denied review of the ALJ's decision on March 2, 2012. Id. at 2-4. Thus, the ALJ's 6 determination became the decision of the Commissioner of Social Security ("Commissioner"). 7

Plaintiff initiated the action before this Court on April 26, 2012, seeking judicial review of the 8 administrative decision dated October 8, 2009. (Doc. 1). On December 10, 2012, Plaintiff filed his 9 opening brief, asserting the ALJ erred in his evaluation of the medical evidence. (Doc. 13). Defendant filed his opposition on January 9, 2013 (Doc. 14), to which Plaintiff replied on January 15, 2013. (Doc. 15).

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. § 1382c(a)(3)(A). An individual shall be considered to have a disability only if: 2 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 8 disability, the burden shifts to the Commissioner to prove the claimant is able to engage in other 9 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 (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 Evidence

On March 11, 2008, Dr. Lavanya Bobba completed a physical residual functional capacity assessment. (Doc. 11-8 at 2-6). She noted Plaintiff's records showed "minimal" symptoms, and his exam results were "fairly unremarkable." Id. at 6. Dr. Bobba determined Plaintiff was able to lift and carry 10 pounds frequently and 20 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 3. She opined Plaintiff's ability to push and pull was unlimited. Id. According to Dr. Bobba, Plaintiff was able to frequently climb ramps and stairs, balance, stoop, kneel, and crouch. Id. at 4. In addition, she believed Plaintiff was able to occasionally crawl and climb ladders, ropes, and scaffolds. Id. Dr. Bobba found Plaintiff was limited to occasional reaching above his shoulder level, but had no further manipulative limitation. Id. On May 5, 2008, Dr. Mohamed Nawar affirmed this assessment. (Doc. 11-8 at 10).

An x-ray of Plaintiff's lumbar spine and thoracic spine was taken on May 8, 2008. (Doc. 11-9 3 at 48). Dr. Tookoian found "[m]ild degenerative changes without other significant abnormality." Id. 4

Specifically, Dr. Tookoian found "[t]he intervertebral spaces are unremarkable," and "mild sclerotic 5 changes of the facets at L5-S1." Id. Further, there were some "minor osteophytic changes of some of 6 the vertebral body margins." Id. 7

On November 21, 2008, Plaintiff had an MRI of his lumbar spine. (Doc. 11-9 at 42-44).

According to Dr. Sean Johnston, the MRI showed: "1-2 mm posterior disc bulge without evidence of 9 canal stenosis or neural foraminal narrowing" at the L2-L5 levels. Id. at 43. In addition, Dr. Johnson found Plaintiff had "[m]ild left neural foraminal narrowing secondary to 2-3 mm posterior disc bulge" at the L5-S1 level. Id. Dr. Johnston opined the facet joints at L1-L2 were "unremarkable," and there was "no evidence of signal abnormality within the exiting or traversing nerve roots" throughout Plaintiff's lumbar spine. Id. at 42.

Dr. Feriba Vesali performed a consultative orthopedic examination on March 9, 2010. (Doc. 11-8 at 54-57). Plaintiff reported "repetitious lifting and driving a water truck . . . injured his back," and he had "constant [and] sharp" pain since April 2006 Id. at 54. Plaintiff informed Dr. Vesali that he lost strength in his legs, and pain was caused by standing, sitting, or walking more than five minutes. Id. According to Plaintiff, he was able to drive, grocery shop, and do household chores such as dishes, vacuuming, and laundry. Id. Dr. Vesali performed straight-leg testing on Plaintiff, and noted the results were negative in the seated position, but in the supine position, it caused low back pain "at 10 degrees of hip flexion." Id. at 56. In addition, he found Plaintiff's strength was "5/5 in upper and lower extremities including grip strength." Id. Dr. Vesali opined Plaintiff's conditions would not impose limitations for twelve continuous months, and he concluded the number of hours Plaintiff should be able to sit, stand, or walk is "unlimited." Id. at 57. Further, Dr. Vesali believed Plaintiff did not have any manipulative, visual, communicative, or environmental limitations. Id.

On March 24, 2010, Dr. Khong assessed Plaintiff's physical residual functional capacity. (Doc. 11-8 at 58-62). Dr. Khong noted the consultative examiner found no limitations, and opined medium work was appropriate "considering [his] history." Id. at 62. Specifically, Dr. Khong found Plaintiff was able to lift and carry 25 pounds frequently and 50 pounds occasionally, stand and/or walk 2 about six hours in an eight-hour day, and sit about six hours in an eight-hour day. Id. at 59. Further, Dr. Khong opined Plaintiff was able to frequently climb ramps, stairs, ladders, ropes, and scaffolds; 4 stoop; balance; kneel; crouch; and crawl. Id. at 60. According to Dr. Khong, Plaintiff did not have 5 visual, manipulative, communicative, or environmental limitations. Id. at 60-61.

Dr. Perminder Bhatia conducted a physical evaluation on April 28, 2010, after Plaintiff was referred to the Neuro-Pain Medical Center for treatment. (Doc. 11-8 at 145-46). Plaintiff reported he 8 felt "weak and numb," and "that whenever he tries to get up and walk, his legs gave way." Id. at 145.

He noted Plaintiff's MRI "showed diffuse disc bulge at L5-S1 with no significant deformity." Id. Dr. Bhatia determined Plaintiff's motor strength was "5/5 in upper and lower extremities." Id. During the sensory exam, Plaintiff had "degreased pinprick in both feet." Id. According to Dr. Bhatia, Plaintiff ...


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