Lugo v. Astrue

Filing 20

ORDER AFFIRMING the Commissioners decision denying benefits. Signed by Judge Frederick J Martone on 5/6/09. (MAP)

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NOT FOR PUBLICATION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Plaintiff, ) ) vs. ) ) Michael Astrue, Commissioner, Social) ) Security Administration, ) ) Defendant. ) ) Vivian Lugo,

No. CV-08-1557-PHX-FJM ORDER

The court has before it plaintiff's opening brief (doc. 15), defendant's answering brief (doc. 18), and plaintiff's reply brief (doc. 19). I. Plaintiff filed an application for social security disability benefits and supplemental security income on July 20, 2005, alleging a disability onset date of November 23, 2004. Following a hearing, the administrative law judge ("ALJ") issued a decision concluding that plaintiff is not disabled and denying benefits. The decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. Plaintiff then filed this action for judicial review pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). A district court may set aside a denial of benefits "only if it is not supported by substantial evidence or if it is based on legal error." Thomas v. Barnhart, 278 F.3d 947, 954

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(9th Cir. 2002). Substantial evidence is "relevant evidence which, considering the record as a whole, a reasonable person might accept as adequate to support a conclusion. Where the evidence is susceptible to more than one rationale interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Id. (citation omitted). The ALJ found that plaintiff has a history of fusion at C5-6 with cervical radiculopathy, diabetes, episodes of gout, peripheral neuropathy, and borderline intellectual function. Tr. 11. The ALJ concluded that plaintiff's subjective complaints of disabling pain are not fully credible. Tr. 14. He found that there is evidence of plaintiff's non-compliance with the medical regimen prescribed by her physicians, and that there is no evidence of weight loss or muscle atrophy, which are common side effects of chronic, pervasive pain. He also found significant plaintiff's acknowledgment that she is able to cook, shop, take walks, drive an automobile, care for her dog, and needs no assistance in dressing or personal grooming--all of which indicate a somewhat normal level of daily activity. Plaintiff does not challenge the ALJ's conclusion that her subjective complaints of pain are not fully credible. After consideration of the entire record, the ALJ concluded that plaintiff retains the residual functional capacity to perform a full range of unskilled light work, and further that she is capable of performing her past relevant work as a cashier. II. Plaintiff first argues that the ALJ improperly weighed the opinions of her treating physicians, Drs. Kelly, Chung and Tomlinson. Where a treating physician's opinion is contradicted by another physician's opinion, an ALJ may reject the treating physician's opinion by providing "specific and legitimate reasons supported by substantial evidence in the record." Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (quotation omitted). "The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating [his] interpretation thereof, and making findings." Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)).

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Plaintiff claims that the ALJ failed to properly consider Dr. Kelly's January 3, 2005 notation that "[w]alking more than one hour per day will exacerbate her arthritis," and "[c]arrying and lifting objects of less than 5 pounds is acceptable." Tr. 230. Dr. Kelly also recommended that plaintiff transfer to a "desk job" and opined that she is able to sit for 8 to 10 hours per day at a job. Id. The ALJ concluded that Dr. Kelly's recommendation for sedentary work was "an excessive precaution in light of the objective evidence." Tr. 15. This finding is sufficiently supported by substantial evidence, including x-rays that show a normal lumbar and cervical spine, with normal alignment and no fractures, Tr. 471-73, and by examining physician, Dr. Malcom McPhee's November 2005 opinion that plaintiff can stand and walk for six hours a day, sit without restriction, and lift 50 pounds occasionally and 25 pounds frequently. Tr. 276-77. The ALJ's conclusion is further supported by a state agency physician's May 2006 opinion that plaintiff retains the ability to perform light work. Tr. 402-09. This physician also noted that plaintiff "is not credible. She appears to engage in exam embellishment." Tr. 403. Plaintiff also argues that the ALJ improperly rejected Dr. Chung's October 21, 2004 letter in which he stated, "To whom it may concern, . . . [plaintiff] is going to work only 4 hours per day due to medical condition." Tr. 359. Dr. Chung's conclusory letter provides no functional evaluation whatsoever. Although the ALJ did not discuss Dr. Chung's letter, the law is well settled that an "ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings." Thomas, 278 F.3d at 957. An ALJ "is not required to discuss evidence that is neither significant nor probative." Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003). Dr. Chung's conclusory, unsupported letter was properly rejected. The ALJ also discounted the April 2, 2007 opinion of treating podiatrist Dr. Tomlinson, which indicated that plaintiff is unable to work "due to herniated disc and weakness." Tr. 444. The ALJ discounted Dr. Tomlinson's opinion because there is no objective evidence of herniated discs in the record. The ALJ noted that plaintiff has a history of a successful cervical fusion, which allowed her to work for eight years following surgery, -3-

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and the lumbar and cervical x-rays showed no evidence of disc herniation. Tr. 15. The ALJ properly discounted Dr. Tomlinson's opinion because it relied on an unsupported diagnosis of multiple herniated discs. We conclude that the ALJ properly discounted the opinions of Drs. Kelly, Chung, and Tomlinson, and to the extent necessary, provided specific and legitimate reasons for doing so. III. Plaintiff next contends that the ALJ failed to find that she meets Listing of Impairments 12.05 (mental retardation), 20 C.F.R. Part 404, Subpart P, Appendix 1. A claimant whose impairment meets or equals a listed impairment is presumptively disabled. See 20 C.F.R. § 404.1520(d). In November 2005, Noelle Rohen, Ph.D., conducted a psychological evaluation of plaintiff and assessed an IQ of 67, with a diagnosis of borderline intellectual functioning. Tr. 292. Dr. Rohen opined that plaintiff can be expected to have some difficulty attending to complex tasks and sustaining attention on simpler tasks. Tr. 293. Plaintiff contends that this impairment meets the requirements of Listing 12.05, which provides that mental retardation "refers to significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the development period; i.e., the evidence demonstrates or supports onset of the impairment before age 22." 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.05. Plaintiff does not identify any evidence to support an onset of the impairment before age 22. The November 2005 psychological evaluation was administered when plaintiff was 44 years old. The record establishes that plaintiff successfully worked as a cashier from 1990 through 2001, when plaintiff was between the ages of 29 and 40. Tr. 126. The evidence does not establish that plaintiff's impairment met Listing 12.05. IV. Finally, plaintiff contends that the ALJ erred by failing to fully develop the record by eliciting expert vocational testimony. Testimony from a vocational expert may be used at -4-

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Step 5 of the sequential analysis to show that a claimant can perform work, other than past relevant work, that exists in significant numbers in the national economy. 20 C.F.R. § 404.1520(g). When a claimant fails to meet her burden at Step 4 of proving that she is unable to perform her past relevant work, a vocational expert's testimony is not necessary. Crane v. Shalala, 76 F.3d 251, 255 (9th Cir. 1996). Here, the ALJ determined at Step 4 that plaintiff can perform her past relevant work as a cashier. Tr. 15-16. The ALJ relied on the assessment by examining physician Dr. McPhee that plaintiff can stand and walk for six hours a day, sit without restriction, lift 50 pounds occasionally and 25 pounds frequently, and perform occasional stooping, kneeling, crouching or crawling. Tr. 276-77. The ALJ noted that work as a cashier is performed at the light, unskilled level according to the Dictionary of Occupational Titles, and that plaintiff's RFC fits within this category. The ALJ's conclusion that plaintiff can perform her past relevant work is further supported by the state agency physician's opinion that plaintiff retains the ability to perform light work. Tr. 402-09. We reject plaintiff's argument that the ALJ "should have requested vocational testimony to see if the claimant could have performed her past work." Opening Brief at 8. The ALJ's conclusion that plaintiff can perform her past relevant work is supported by substantial evidence. The ALJ was not required to call a vocational expert to support that conclusion. IT IS ORDERED AFFIRMING the Commissioner's decision denying benefits. DATED this 6th day of May, 2009.

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