Nehemiah Lewis Jr v. Michael J Astrue

Filing 27

MEMORANDUM OPINION by Magistrate Judge Charles F. Eick. Plaintiff's motion for summary judgment is denied and Defendant's motion for summary judgment is granted. (sp)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff filed a motion for summary judgment on July 24, 2008. Defendant filed a cross-motion for summary judgment on September 10, 2008. The Court has taken both motions under submission without oral See L.R. 7-15; "Order," filed December 17, 2007. Plaintiff filed a Complaint on December 14, 2007, seeking review of the Commissioner's denial of benefits. The parties filed PROCEEDINGS NEHEMIAH LEWIS JR., ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, COMMISSIONER ) OF SOCIAL SECURITY ADMINISTRATION, ) ) Defendant. ) ___________________________________) NO. CV 07-8200-E UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

MEMORANDUM OPINION

a consent to proceed before a United States Magistrate Judge on January 11, 2008.

argument.

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BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

Plaintiff, a former bus driver, asserted disability based on a variety of impairments, including alleged heart problems and obesity (Administrative Record ("A.R.") 7-382). Following a previous court-

ordered remand, an Administrative Law Judge ("ALJ") examined the medical record and heard testimony from Plaintiff, a medical expert, and a vocational expert. Id. Because Plaintiff returned to

substantial gainful activity on May 15, 2006, at issue before the ALJ was whether Plaintiff was disabled from August 27, 2003 to May 14, 2006 (A.R. 290, 356-57).

The ALJ concluded Plaintiff was not disabled from August 27, 2003 to May 14, 2006 (A.R. 290-98). The ALJ found Plaintiff had the

severe impairments of "status post-aortic valve replacement; mild gout; hypertension; sleep apnea; and obesity," but that these impairments, individually or in combination, did not meet or equal any of the Listings (A.R. 293). The ALJ determined Plaintiff had the

residual functional capacity "to perform light work except he is able to stand/walk 4 out of 8 hours a day, occasionally balance, climb, kneel, stoop, crouch and crawl, and should not drive or work at unprotected heights" (A.R. 293). The ALJ found Plaintiff was unable

to perform Plaintiff's past relevant work, but also found, in reliance on the vocational expert's testimony, that there exist significant numbers of other jobs Plaintiff could have performed during the relevant time period (A.R. 296-98). /// /// 2

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SUMMARY OF PLAINTIFF'S CONTENTIONS

Plaintiff contends:

The ALJ failed to explain sufficiently the ALJ's

conclusion Plaintiff did not meet or equal the Listings;

The ALJ failed to consider properly a certain

aspect of the medical expert's testimony; and

The ALJ's hypothetical questioning of the

vocational expert was incomplete.

STANDARD OF REVIEW

Under 42 U.S.C. section 405(g), this Court reviews the Commissioner's decision to determine if: (1) the Commissioner's findings are supported by substantial evidence; and (2) the Commissioner used proper legal standards. 763 F.2d 1061, 1064 (9th Cir. 1985). See Swanson v. Secretary,

Substantial evidence is "such

relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401

(1971) (citation and quotations omitted).

This Court "may not affirm [the Administration's] decision simply by isolating a specific quantum of supporting evidence, but must also consider evidence that detracts from [the Administration's] conclusion." Ray v. Bowen, 813 F.2d 914, 915 (9th Cir. 1987) 3

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(citation and quotations omitted).

However, the Court cannot disturb

findings supported by substantial evidence, even though there may exist other evidence supporting Plaintiff's claim. See Torske v.

Richardson, 484 F.2d 59, 60 (9th Cir. 1973), cert. denied, 417 U.S. 933 (1974); Harvey v. Richardson, 451 F.2d 589, 590 (9th Cir. 1971).

The harmless error rule applies to the review of administrative decisions regarding disability. See Curry v. Sullivan, 925 F.2d 1127,

1129 (9th Cir. 1991); see also Batson v. Commissioner, 359 F.3d 1190, 1196 (9th Cir. 2004); Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001).

DISCUSSION

After consideration of the record as a whole, Defendant's motion is granted and Plaintiff's motion is denied. The

Administration's findings are supported by substantial evidence and are free from material legal error.

Plaintiff has the burden of demonstrating disability under the Listings. Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert.

denied, 517 U.S. 1122 (1996); see Sullivan v. Zebley, 493 U.S. 521, 530-31 (1990) (burden is on the claimant to show that his impairment meets all of the specified medical criteria for a listing, or present medical findings equal in severity to all the criteria for the one most similar listed impairment); Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004) ("The burden of proof is on the plaintiff to establish that his or her impairment meets or equals a listing."). 4

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Plaintiff utterly has failed to carry this burden.

Indeed,

Plaintiff's motion fails even to suggest how the medical evidence conceivably might prove Plaintiff met or equaled any particular Listing.

The ALJ discussed the medical evidence thoroughly (A.R. 293-98; see also A.R. 11-19 (prior administrative decision adopted by reference in present administrative decision)). Contrary to

Plaintiff's argument, the ALJ's Listings discussion sufficed under these circumstances. See Gonzalez v. Sullivan, 914 F.2d 1197, 1201

(9th Cir. 1990) ("It is unnecessary to require the [Administration], as a matter of law, to state why a claimant failed to satisfy every different section of the Listing of Impairments. The

[Administration's] four page `evaluation of the evidence' is an adequate statement of the `foundations on which the ultimate factual conclusions are based'"); see also Young v. Sullivan, 911 F.2d 180, 185 n.2 (9th Cir. 1990) ("This case does not involve the refusal to credit a finding made by an alternative diagnostic technique or multiple impairments. Therefore, we find that the circumstances of

this case make more detailed findings regarding equivalence unnecessary"); Key v. Heckler, 754 F.2d 1545, 1549 n.2 (9th Cir. 1985) ("the ALJ examined the medical reports submitted by the various physicians and concluded that the preponderance of the evidence did not establish the existence of the findings necessary to support a showing of disability under the Listing of Impairments"); Linsky v. Astrue, 2008 WL 2128143 *5 (N.D. Cal. May 20, 2008) (rejecting plaintiff's argument regarding sufficiency of ALJ's Listings analysis where Plaintiff failed to meet plaintiff's burden to demonstrate she 5

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met each and every element described in the Listing or to offer a theory as to how her impairments equaled a Listing).

Plaintiff's contention regarding the medical expert's testimony also fails. Plaintiff argues the ALJ failed properly to consider

testimony from the medical expert purportedly opining that Plaintiff had a sedentary residual functional capacity. not so opine. The medical expert did

The medical expert equivocated, saying that Plaintiff's

residual functional capacity was light and "could have even been at less . . . may have been at the sedentary [level]" (A.R. 372). Moreover, to the extent the medical expert may have believed Plaintiff's residual functional capacity deteriorated to a sedentary level, any such deterioration lasted only for a "short period of time," according to the medical expert. Id. Thus, Plaintiff failed

to carry his burden of demonstrating that any alleged sedentary restriction lasted for twelve continuous months. See Krumpelman v.

Heckler, 767 F.2d 586, 589 (9th Cir. 1985), cert. denied, 475 U.S. 1025 (1986). In any event, even assuming, arguendo, the medical

expert clearly opined Plaintiff's exertional capacity was at the sedentary level for twelve continuous months, the law would not require the ALJ to detail reasons for an implicit disregard of this aspect of the medical expert's testimony. See Nyman v. Heckler, 779

F.2d 528, 531 (9th Cir. 1986) (ALJ need not explicitly detail reasons for rejecting the contradicted opinions of non-treating physicians); Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (ALJ need not discuss all evidence presented). Consequently, the ALJ did not

err in the ALJ's analysis of Plaintiff's residual functional capacity. /// 6

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Finally, the ALJ did not err in the hypothetical questioning of the vocational expert. Hypothetical questions posed to a vocational

expert need not include all conceivable limitations that a favorable interpretation of the record might suggest to exist ­ only those limitations the ALJ finds to exist. See, e.g., Bayliss v. Barnhart,

427 F.3d 1211, 1217-18 (9th Cir. 2005); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Magallanes v. Bowen, 881 F.2d 747, 756-57 (9th Cir. 1989); Martinez v. Heckler, 807 F.2d 771, 773-74 (9th Cir. 1986). Here, the hypothetical question posed to the vocational expert

included all limitations the ALJ found to exist (A.R. 293, 378-79). No material error occurred.

CONCLUSION

For all of the reasons discussed herein, Plaintiff's motion for summary judgment is denied and Defendant's motion for summary judgment is granted.

LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED:

October 9, 2008.

________________/S/________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE

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