United States District Court, E.D. California
ORDER REGARDING PLAINTIFF’S SOCIAL SECURITY
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.
BACKGROUND AND PRIOR PROCEEDINGS
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. 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.
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.
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.
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.
THE DISABILITY DETERMINATION PROCESS
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).
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,
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,
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,  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).
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.
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.
STANDARD OF REVIEW
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.
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
Relevant Medical Evidence
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
Treatment at Doctors Medical Center of Modesto
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.
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.
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
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.
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.
Roger Wagner, M.D.
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.
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.
gave Dr. Wagner’s opinion substantial weight. AR 35.
Deborah von Bolschwing, Ph.D.
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.
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