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Davisson v. Colvin

United States District Court, E.D. California

July 22, 2016

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



         Plaintiff Randy Davisson (“Plaintiff”) seeks judicial review of a final decision by the Commissioner of Social Security (“Commissioner” or “Defendant”) denying his application for disability insurance and supplemental security income (“SSI”) benefits pursuant to Titles II and XVI of the Social Security Act. The matter is currently before the Court on the parties’ briefs, which were submitted without oral argument to the Honorable Erica P. Grosjean, United States Magistrate Judge.[1]


         Plaintiff was 43 years old at the time of his hearing before the Social Security Administration. AR 50. He graduated from high school, but has no post-secondary education.[3] AR 50-51. Plaintiff most recently worked as a custodian in 2010, but was laid off. AR 52, 248. Plaintiff lives alone and does not drive because he lacks a vehicle, although he sometimes rides the bus. AR 64-65.

         Plaintiff’s alleged physical conditions are: scoliosis, a shortened right leg, and a right hip injury. AR 247. He also alleges depression. AR 53. On April 19, 2012, Plaintiff filed applications for SSI under Title XVI and disability insurance benefits under Title II, alleging a disability beginning on April 18, 2012. AR 214-223, 224-230. The applications were denied initially on September 15, 2012 and on reconsideration on February 21, 2013. AR 92-117, 148-149. Plaintiff filed a request for a hearing on July 3, 2013. AR 127-129. The hearing was then conducted before Administrative Law Judge G. Ross Wheatley (the “ALJ”) on October 16, 2013. AR 46. On November 1, 2013, the ALJ issued an unfavorable decision determining that Plaintiff was not disabled. AR 26-38. Plaintiff filed an appeal of this decision with the Appeals Council. The Appeals Council denied the appeal, rendering the ALJ’s order the final decision of the Commissioner. AR 1-6.

         Plaintiff now challenges that decision, arguing that: (1) The ALJ erroneously rejected opinions by Drs. Fine and Hernandez, two consulting examiners; (2) the ALJ incorrectly rejected Plaintiff’s testimony; and, (3) the ALJ failed to consider Plaintiff’s psychological impairments at step two of the five step process.

         Defendant contests Plaintiff’s assessment, pointing out that: (1) The ALJ had specific and legitimate reasons to discount the opinions of Drs. Fine and Hernandez; (2) Plaintiff’s testimony was inconsistent with the medical record and with his daily activities; and, (3) the ALJ found that the combined effects of Plaintiff’s impairments were “severe, ” thus any failure to consider psychological impairments was not error.


         To qualify for benefits under the Social Security Act, a plaintiff must establish that he or she 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 twelve 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).

         To achieve uniformity in the decision-making process, the Commissioner has established a sequential five-step process for evaluating a claimant’s alleged disability. 20 C.F.R. §§ 404.1520(a)-(f), 416.920(a)-(f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding that the claimant is or is not disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The ALJ must consider objective medical evidence and opinion testimony. 20 C.F.R. §§ 404.1527, 404.1529, 416.927, 416.929.

         Specifically, the ALJ is required to determine: (1) whether a claimant engaged in substantial gainful activity during the period of alleged disability, (2) whether the claimant had medically-determinable “severe” impairments, [4] (3) whether these impairments meet or are medically equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1, (4) whether the claimant retained the residual functional capacity (“RFC”) to perform his past relevant work, [5] and (5) whether the claimant had the ability to perform other jobs existing in significant numbers at the regional and national level. 20 C.F.R. §§ 404.1520(a)-(f), 416.920(a)-(f).

         Using the Social Security Administration’s five-step sequential evaluation process, the ALJ determined that Plaintiff did not meet the disability standard. AR 26-38. In particular, the ALJ found that Plaintiff had not engaged in substantial gainful activity since April 18, 2012, the date specified in his application. AR 28. Further, the ALJ identified scoliosis with low back pain, a history of right hip fracture status post surgeries, and right knee disorder as severe impairments. AR 28. Nonetheless, the ALJ determined that the severity of Plaintiff’s impairments did not meet or exceed any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 31-32.

         Based on a review of the entire record, the ALJ determined that Plaintiff had the RFC to: “perform light work as defined in 20 CFR 404.1567(b) and 416.967(b), but he needs to be allowed to sit or stand alternatively at will, provided that he is not off-task more than 10% of the work period. He can only occasionally crouch, kneel, crawl, and climb ladders, ropes, and scaffolds. In addition, he can only frequently stoop and climb ramps and stairs.” AR 32. Plaintiff was unable to perform his past relevant work. AR 36. However, the ALJ determined that there were jobs that exist in significant numbers in the national economy that Plaintiff could perform, including shipping and receiving weigher, router clerk, and checker. AR 37.


         Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether: (1) it is supported by substantial evidence; and (2) it applies the correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007).

         “Substantial evidence means more than a scintilla but less than a preponderance.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). It is “relevant evidence which, considering the record as a whole, a reasonable person might accept as adequate to support a conclusion.” Id. “Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld.” Id.

         V. DISCUSSION

         A. The Relevant Medical Evidence

         Plaintiff argues that the ALJ improperly considered the medical evidence, as well as the statements of Plaintiff, and thus erroneously determined that Plaintiff was not disabled. Specifically at issue is the ALJ’s consideration of: (1) the opinion of consulting examiner Dr. Frank Fine; (2) the opinion of psychological consulting examiner Dr. Joseph Hernandez; and (3) the testimony of Plaintiff. The Court has reviewed the entire medical record and will summarize it in relevant part.

         i. Treatment at Doctors Medical Center of Modesto

         Plaintiff saw a succession of physicians and other medical caretakers between November 2011 and May 2012 at or in connection with his treatment at Doctors Medical Center of Modesto.

         On November 3, 2011, Plaintiff sought treatment for shortness of breath and chest pain and saw Jeremiah Fillo, M.D. AR 472. Plaintiff was given aspirin, morphine, a nitro patch, and Zofran, which relieved his chest pain. AR 472. Plaintiff told Dr. Fillo he took Aleve as necessary for headaches. AR 472. Plaintiff reported receiving a DUI within the past year. AR 473. He complained of insomnia, but denied any feelings of anxiousness. AR 473. A mental status examination described his affect as “slightly disheveled” and “somewhat blunted.” AR 473. He had a euthymic mood, but appropriate speech and thought processes. AR 473. He had no suicidal or homicidal ideations and was fully oriented. AR 473. Dr. Fillo entered a diagnosis of “[q]uestionable anxiety disorder.” AR 474.

         On December 21, 2011, Plaintiff saw Satnam Ludder, M.D., a cardiologist, for a consultation regarding his chest pains. Dr. Ludder reviewed Plaintiff’s chest x-rays and EKG results and noted that Plaintiff had a history of “some anxiety disorder.” AR 460. He also noted that Plaintiff “walks about a mile a day without any problems.” AR 460. He observed that Plaintiff was oriented to time, place, and person. AR 461. Plaintiff’s mood was good. AR 461. Dr. Ludder recommended a metabolic panel, lipid panel, and blood work up, although follow up treatment was to be conducted by his primary care physician. AR 462. He also recommended that Plaintiff “continue his exercise protocol walking about a mile a day everyday [sic].” AR 462.

         On April 16, 2012, Shawn Escobar, M.D., reviewed x-rays of Plaintiff’s hip and noted that he had “[s]evere degenerative changes of the right hip which . . . may be related to a prior injury in this region.” AR 488.

         On October 16, 2012, Plaintiff was seen by Omar Liran, M.D., complaining of suicidal ideation. AR 556. Plaintiff was admitted to the hospital under California Welfare and Institutions Code § 5150. AR 556. Plaintiff stated that he was “feeling depressed and anxious” because he was required to pay child support but did not have the money to do so. AR 556. He “complained of hip pain and said that he is applying for social security disability and that is why he cannot work.” AR 556. Plaintiff was given Cymbalta and ate and slept normally while admitted. AR 557. Plaintiff then said that he felt good and “no longer wants to hurt himself.” AR 557. Dr. Liran observed that he appeared “less anxious” and “currently does not meet criteria for involuntary inpatient hospitalization.” AR 557. Plaintiff requested that he be discharged and was provided with a bus ticket and resource packet for psychiatric and peer support groups in his area. AR 557.

         ii. Roger Wagner, M.D.

         Dr. Wagner conducted an internal medicine consultative examination of Plaintiff on August 24, 2012. AR 503. Plaintiff explained that he had suffered a hip fracture in 2001 while at work and that the injury required two surgeries to repair. AR 503. He stated that his right leg is shorter than his left leg and that he could walk “about one to one and a half blocks.” AR 503. He also complained of scoliosis, which caused him pain when bending or lifting. AR 504. He claimed that he could only tolerate sitting for approximately 45 minutes. He stated that he lived with his girlfriend and that he could cook, clean, and perform other daily living activities without assistance. AR 504. He rode a bicycle for exercise and took ibuprofen for pain. AR 504. Dr. Wagner observed that Plaintiff was able to walk at a normal pace while at the office, was “easily able to get on and off the examination table, ” and was “very, very easily able to bend over at the waist and take off his shoes and socks, demonstrating very good limberness in the back when doing so.” AR 504. Plaintiff had a normal station and gait, but reported discomfort “on internal and external rotation of the right hip.” AR 505.

         Dr. Wagner diagnosed Plaintiff with a right hip fracture status post surgery and scoliosis. AR 506-507. Based on these diagnoses, Dr. Wagner found that Plaintiff could: stand and/or walk for up to six hours; sit for up to six hours; lift/carry 20 pounds occasionally and 10 pounds frequently; stoop frequently; and crouch and crawl occasionally. AR 507.

         The ALJ gave Dr. Wagner’s opinion substantial weight. AR 35.

         iii. Deborah von Bolschwing, Ph.D.

         Dr. von Bolschwing conducted a psychological consultative examination of Plaintiff on August 27, 2012. Plaintiff complained to Dr. von Bolschwing of his physical problems, but did not complain about any psychological symptoms. AR 510. Plaintiff told Dr. von Bolschwing that he had been laid off in 2011 because of a lack of available work. AR 510. He reported chronic hip pain for which he was taking aspirin. AR 511. He also denied any suicidal or homicidal ideation or psychiatric hospitalizations. AR 511. He said that he was able to drive and perform simple chores “such as washing dishes, doing laundry, and preparing simple meals.” AR 511.

         Dr. von Bolschwing observed that Plaintiff had a “full affect and a pleasant mood.” AR 511. His mental status examination was largely normal, although his general fund of knowledge was below average. AR 511. Dr. von Bolschwing did not diagnose any psychological impairments. AR 511. She did state, however, that Plaintiff had mild impairments in: understanding, remembering, and carrying out simple instructions; maintaining attention and concentration for the duration of the evaluation; maintaining pace while completing tasks; enduring the stress of the interview; and interacting with the public, supervisors, and co-workers. AR 512. She also found that Plaintiff had moderate impairments in: understanding, remembering, and carrying out complex instructions; and adapting to changes in routine work-related settings. AR 512. Despite these impairments, Dr. von ...

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