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Manuel Martinez v. Michael J. Astrue

February 22, 2013

MANUEL MARTINEZ,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Stephen J. Hillman United States Magistrate Judge

MEMORANDUM DECISION AND ORDER

This matter is before the Court for review of the decision by the Commissioner of Social Security denying plaintiff's applications for Disability Insurance Benefits and for Supplemental Security Income. Pursuant to 28 U.S.C. § 636(c), the parties have consented that the case may be handled by the undersigned. The action arises under 42 U.S.C. § 405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner. The plaintiff and the defendant have filed their pleadings (Memorandum in Support of Complaint; Defendant's Brief), and the defendant has filed the certified transcript of record. After reviewing the matter, the Court concludes that the decision of the Commissioner should be reversed with respect to plaintiff's second claim of error, and affirmed with respect to plaintiff's first, third and fourth claims of error.

On August 15, 2008, plaintiff Manuel Martinez filed an application for a period of disability or Disability Insurance Benefits, alleging an inability to work since May 9, 2005. (See Administrative Record ["AR"] 59-60). On April 9, 2009, plaintiff filed an application for Supplemental Security Income, alleging an inability to work since January 22, 2009. (See AR 349-56). On September 15, 2009 (following a hearing on July 23, 2009), an Administrative Law Judge ("ALJ") issued a decision. The ALJ determined that plaintiff had severe impairments -- bilateral shoulder strain and bilateral shoulder impingement syndrome; bilateral carpal tunnel syndrome, status post right cubital tunnel release, status post bilateral carpal tunnel release; bilateral wrist and right low extreme sensory deficits; chronic lumbar spine sprain/strain; chronic cervical spine sprain/strain; bilateral knee sprain/strain with torn medial menisci bilateral knee sprain/strain; and chronic obstructive pulmonary disease -- but found that plaintiff was not disabled within the meaning of the Social Security Act. (See AR 16-26).

Following the Appeals Council's denial of plaintiff's request for a review of the hearing decision (see AR 399-401), plaintiff filed an action in this Court.

On September 7, 2010, the Court found that the ALJ's determination of plaintiff's Residual Functioning Capacity ("RFC") was supported by substantial evidence. However, finding that the ALJ improperly relied on the vocational expert's testimony with respect to the interpretation of "repetitive," the Court reversed and remanded the matter for further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g). (See AR 426-32).

On June 7, 2011 (following a supplemental hearing on February 17, 2011 and a subsequent vocational interrogatory), the ALJ determined that plaintiff had the same severe impairments as before, but found that plaintiff was not disabled within the meaning of the Social Security Act. (See AR 410-23).

Plaintiff makes four challenges to the 2011 Decision. Plaintiff alleges the ALJ erred in: (1) failing to properly reject the opinion of the state agency physician, (2) failing to propound a complete hypothetical question to the vocational expert; (3) failing to properly reject the opinion of the consultative physician ; and (4) failing to properly evaluate plaintiff's subjective complaints of pain.

DISCUSSION

ISSUES NOS. 1 AND 3: Plaintiff asserts that the ALJ failed to properly reject the opinions of Dr. Ahmed, a state agency physician, and Dr. Bader, an examining physician, with respect to plaintiff's capacity to handle. Defendant asserts that the ALJ properly determined plaintiff's Residual Functioning Capacity ("RFC").

An examining physician's opinion is entitled to greater weight than that of a nonexamining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996); Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990). The ALJ must provide specific and legitimate reasons supported by substantial evidence in the record when rejecting the controverted opinion of an examining physician. Lester v. Chater, supra; Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995).

Seamon Bader, M.D., an orthopaedic surgeon at Millenium Multispeciality Medical Group, examined plaintiff on January 26, 2010. In his report, Dr. Bader stated that plaintiff could do the following: lift and carry 50 pounds occasionally and 25 pounds frequently due to bilateral hand pain and low back pain; stand and walk six hours out of an eight-hour workday due to back pain; postural activities occasionally due to back pain and poor balance; sit six hours out of an eight-hour workday due to back pain; no required use of any assistive device; and manipulative activities occasionally due to bilateral hand pain and numbness. (See AR 676-81).

A. Ahmed, M.D., a state agency physician, performed a Physical Residual Functional Capacity assessment on plaintiff. In a report dated February 8, 2010, Dr. Ahmed stated that plaintiff could do the following: with respect to exertional limitations, lift and/or carry 20 pounds occasionally and 10 pounds frequently, stand and/or walk about six hours in an eight-hour workday, sit about six hours in an eight-hour workday, push and/or pull unlimited, and climb, stoop, kneel, crouch and crawl occasionally and never balance; with respect to manipulative limitations, reach all directions unlimited; handle (gross manipulation), finger (fine manipulation) and feel limited, bilateral handling occasional and bilateral fingering frequent; no visual limitations; and no environmental limitations. (See AR 704-08).

Based on review of the medical records, the ALJ determined that plaintiff had the following RFC: "exert 20 to 50 pounds of force occasionally and/or 10 to 20 pounds of force frequently and/or greater than negligible up to 10 pounds of force constantly to move objects," with plaintiff being limited to "exert no more than 20 to 30 pounds of force occasionally, and the [plaintiff] can push, pull, lift and reach with a force that does not exceed 30 pounds"; "stand and walk up to 6 hours and sit up to 6 hours in an 8-hour workday with normal breaks"; "perform work that does not require climbing ladders, ropes and scaffolds; has stooping and crouching only up to 25 percent of the workday and has kneeling squatting (i.e., sitting in a crouched position), crawling and climbing ramps and stairs up to 50 percent of the workday"; "perform work that requires reaching, lifting, pushing, pulling or handling objects over shoulder height up to 50 percent of the workday, and does not require forceful gripping or grasping of objects (i.e., a loss of 25 percent of pre-injury gripping/grasping strength . . . )"; "perform work that requires flexion and extension of the right lower extremity and the right and/or left wrists up to 50 percent of the workday"; "perform work that does not require concentrated exposure to extreme heat and extreme vibration, and which does not require any exposure to environmental respiratory irritants and poorly ventilated areas (i.e., asthma precautions)." (AR 413-14).

The ALJ specifically discussed the reports of Dr. Bader and Dr. Ahmed. With respect to Dr. Bader's report, the ALJ noted, "Aside from some decreased sensation noted at the hands and right foot, Dr. Bader's examination was largely unremarkable.". (AR 419). Immediately after describing Dr. Ahmed's report, the ALJ stated: "The undersigned does not give great weight to this non-examining source opinion to the extent that it is inconsistent with the adopted functional ...


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