Phillip J. Johnson v. Michael J. Astrue

Filing 23

MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton, The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. (SEE ORDER FOR FURTHER DETAILS) (lmh)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

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PHILLIP JOHNSON,

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Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social
Security,

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Defendant.

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No. CV 10-04815-VBK
MEMORANDUM OPINION
AND ORDER
(Social Security Case)

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This matter is before the Court for review of the decision by the

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Commissioner of Social Security denying Plaintiff’s application for

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disability benefits.

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consented that the case may be handled by the Magistrate Judge.

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action arises under 42 U.S.C. §405(g), which authorizes the Court to

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enter judgment upon the pleadings and transcript of the record before

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the Commissioner.

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(“JS”), and the Commissioner has filed the certified Administrative

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Record (“AR”).

Pursuant to 28 U.S.C. §636(c), the parties have
The

The parties have filed the Joint Stipulation

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Plaintiff raises the following issues:

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1.

Whether

the

Administrative

Law

Judge

(“ALJ”)

properly

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considered

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examining opinion of Homayoun Saeid, M.D.; and

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2.

the

medical

evidence

as

contained

in

the

Whether the ALJ properly considered Plaintiff’s testimony.

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This Memorandum Opinion will constitute the Court’s findings of

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fact and conclusions of law.

After reviewing the matter, the Court

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concludes that the decision of the Commissioner must be affirmed.

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I

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THE ALJ DID NOT ERR IN EVALUATING THE OPINION

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OF EXAMINING PHYSICIAN DR. SAEID

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On March 7, 2008, at the request of the Department of Social

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Services, Plaintiff received a complete internal medicine evaluation

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from Dr. Saeid. (AR 322-336.)

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physical examination and taking a history, Dr. Saeid completed a

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“check-off”

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entitled “Medical Sourced Statement of Ability to Do Work Related

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Activities (Physical).”

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answer to the question, “Does the individual require the use of a cane

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to ambulate?” (AR 331.)

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residual

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Plaintiff to ambulation with the use of an assistive device, such as

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a cane. (AR 23.)

form

provided

functional

by

In addition to performing a complete

the

Social

Security

Administration

In that form, Dr. Saeid checked off “yes” in

Nevertheless, in assessing Plaintiff’s

capacity

(“RFC”),

the

ALJ

did

not

restrict

Plaintiff claims this is error. (JS at 6.)

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The Court’s review of all of the medical evidence in the AR

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reveals that no physician ever opined that Plaintiff required the use

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of an assistive device to ambulate.

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check-off form completed by Dr. Saeid.

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notes that in Dr. Saeid’s report (AR 322-326), there is no mention of
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The only exception is in the
Looking further, the Court

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the need for such a device.

Indeed, the physical findings do not

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support such a conclusion.

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normal gait, good motor tone with good active motion, strength is 5/5

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in all extremities; normal reflex reaction in the biceps and knee

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jerks, and that Plaintiff is able to stand on his heels and toes and

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perform gait. Indeed, Dr. Saeid assessed that Plaintiff is capable of

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lifting and carrying 50 pounds occasionally and 25 pounds frequently,

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and can stand and walk six hours in an eight-hour day, and sit for six

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hours in an eight-hour day. (AR 326.)

Dr. Saeid found that Plaintiff had a

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The question arises, then, whether Dr. Saeid’s checking of “yes”

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in answer to the question as to whether Plaintiff requires a cane to

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ambulate, is a typographical or inadvertent error.

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overwhelmingly

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First, as noted, Dr. Saeid’s written report nowhere mentions that

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Plaintiff requires an assistive device to ambulate, and in fact, Dr.

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Saeid

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ability to ambulate. Further, Plaintiff never complained to Dr. Saeid

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that he had any problem walking, and there is no indication that he

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utilized a cane or other device during the examination.

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check-off form itself requires further answers if the first answer is

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yes.

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far can the individual ambulate without the use of cane, is the use of

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a cane medically necessary, and, without a cane, can the individual

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use his or her free hand to carry small objects.

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form provides a space for the examiner to notate the particular

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medical

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assessment, and why the findings support the assessment.

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was left blank. (See AR at 331.)

reported

supports

an

completely

affirmative

normal

answer

findings

to

The evidence
that

regarding

question.

Plaintiff’s

Further, the

Dr. Saeid provided no further answers to such questions as, how

of

clinical

findings

and

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symptoms

In addition, the

which

support

the

Again, this

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The Court also notes that Dr. Saeid made another error in the

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check-off form, which would support an inference that he paid little

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attention to it, and that the reference to the need for use of a cane

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is an inadvertent error.

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to lift and carry, he checked off “occasionally” next to the section

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which contains limitations to 21 to 50 pounds.

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with his diagnostic report; however, the next section indicates that

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Plaintiff is only capable of frequently carrying 11 to 20 pounds. (AR

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330.)

That is, when assessing Plaintiff’s ability

This is consistent

This is inconsistent with Dr. Saeid’s diagnostic report, in

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which he indicates that Plaintiff can lift and carry 25 pounds

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frequently.

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In addition to the inconsistencies between the check-off form and

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Dr. Saeid’s own examination, no such medical assessment was made in

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another examination by a different physician, Dr. Klein, who performed

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a comprehensive internal medicine evaluation on April 26, 2006, at the

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request of the Department of Social Services. (AR 154-159.)

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report, Dr. Klein made detailed observations about Plaintiff’s gait,

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which are worth repeating:

In this

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“[Plaintiff] is able to change position and get on and off

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examining table without difficulty.

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not

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unaffected.

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assistive aid is required for ambulation across the room.”

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(Emphasis added.)

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unsteady

or

unpredictable.

Gait is normal; it is
Heel

to

toe

walking

Squatting and rising within normal limits.

No

(AR at 158.)

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Dr. Klein’s conclusions are consistent with his examination, in
which

he

found

normal

range

of
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motion

in

Plaintiff’s

lower

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extremities. (AR 157-158.)
Despite

Plaintiff’s

complaints

about

the

ALJ’s

failure

to

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incorporate Dr. Saeid’s purported finding that he required use of a

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cane, the fact is that the ALJ adopted the more restrictive functional

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conclusions reported by Dr. Klein two years earlier in assessing

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Plaintiff’s RFC.

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Finally, at the hearing before the ALJ in this matter (AR 466-

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486), Plaintiff was directly asked to describe his medical problems

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insofar as they prevented him from working.

He indicated that he

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could go shopping from time to time, that he could walk up and down

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the aisles and pick out the items he needed, and put them in a basket,

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and then take them to the counter and pay for them. (AR 478.)

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in this testimony, or anywhere else in the record, is there any

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indication whatsoever that Plaintiff had problems ambulating, much

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less that he required the use of an assistive device.

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can find no error whatsoever with regard to the ALJ’s assessment of

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Dr. Saeid’s opinion. Indeed, Plaintiff’s first issue borders on being

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frivolous.

Nowhere

Thus, the Court

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II

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THE ALJ’S CREDIBILITY ASSESSMENT IS SUPPORTED

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BY SPECIFIC AND LEGITIMATE REASONS IN THE RECORD

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In his second issue, Plaintiff asserts that the ALJ failed to

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articulate “legally sufficient reasons” to reject his testimony as to

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subjective

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analysis (see Social Security Ruling [“SSR”] 96-7p), by which it must

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be determined whether there is an underlying medically determinable

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physical or mental impairment that could reasonably be expected to

pain.

Plaintiff

cites

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the

well

recognized

two-step

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produce the complained of pain or other symptoms, and if so, it is the

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Commissioner’s

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intensity, persistence and limiting effects of these symptoms to

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determine the extent to which they limit the individual’s ability to

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do work activities. (See Bunnell v. Sullivan, 947 F.2d 341, 345 (9th

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Cir. 1991)(en banc).)

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conduct this analysis properly, and in fact, claims that the ALJ’s

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decision is “void of any sufficient rationale at all ...” (JS at 16.)

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Plaintiff’s claims are not borne out by the record.

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The

ALJ

responsibility

is

to

investigate

and

evaluate

the

Plaintiff asserts that the ALJ failed to

charged

with

utilizing

ordinary

techniques

of

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credibility evaluation. The regulations spell out many of the factors

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which should be evaluated in this process. (See 20 C.F.R. §§404.1529,

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416.929; SSR 96-7p.)

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Plaintiff’s

complaints

were

of

poor

endurance,

a

disabling

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fatigue, cramping in his whole body, back pain, and arthralgias (joint

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pains). (AR 23, 80, 99, 107.)

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As to Plaintiff’s complaints of poor endurance, the ALJ quite

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properly remarked that Plaintiff’s “chronic alcoholism and daily

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marijuana use could reasonably be expected to reduce one’s stamina.”

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(AR

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Plaintiff’s statements at various times about his use of alcohol and

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marijuana are inconsistent.

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April 26, 2006 that he continues to drink approximately two beers per

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day. (AR 154.)

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heavily for 20 years, and although he stopped using cocaine, he smoked

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marijuana daily. (AR 175.)

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2005, Plaintiff admitted that he is still drinking. (AR 178.)

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treating doctor observed in 2004 that Plaintiff most likely had

24.)

This

observation

is

well-supported

by

the

record.

For example, he reported to Dr. Klein on

At about the same time, he admitted that he drank

In a previous progress note from the year

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His

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continued drug and alcohol abuse. (AR 188.)

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Plaintiff

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contributes to a condition called thrombocytopenia, which could be a

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factor in causing his fatigue. (AR 24.)

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(and Plaintiff has not disputed the accuracy of these observations),

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that

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consistent.” (Id.)

had

been

Plaintiff

advised

“maintained

to

stop

The ALJ also noted that

consuming

various

alcohol,

as

it

Further, the ALJ observed

dates

of

sobriety,

none

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As a second reason, although Plaintiff complained of back pain,

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the ALJ observed that Plaintiff has never been diagnosed with or

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treated for any such condition. (AR 24.)

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dispute the accuracy of this observation, or the fact that it is

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relevant in the credibility analysis.

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observed in discussing Plaintiff’s first claim, both Doctors Saeid and

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Klein found normal results with regard to Plaintiff’s spinal range of

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motion, negative straight leg raising tests, full power in all his

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extremities, and normal sensation and reflexes.

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Again, Plaintiff does not

Indeed, as the Court has

The same observation is true as to Plaintiff’s complaint of

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arthralgias.

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revealed that he had normal joints and no restrictions on range of

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motion in his hands, wrists, elbows, shoulders, hips, knees and

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ankles.

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erythema, or edema. (AR 24, 156-158, 324-326.)

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The ALJ noted that Plaintiff’s physical examinations

There was no evidence that he had any tenderness, swelling,

Finally,

the

ALJ

observed

that

Plaintiff

made

inconsistent

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statements about his own level of daily activities.

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his subjective pain complaints, he admitted he could lift and carry up

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to 25 or 30 pounds, that he shopped once a week, did household chores,

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could drive for up to an hour at a time, and that he did other

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household chores which would conflict with his subjective complaints.
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In contrast to

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(AR 24, 97-98.)

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be a “quadriplegic dependant upon others for survival and unable to

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perform any activities” in order to demonstrate credible subjective

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pain (JS at 13), that is not the nature of the analysis which the ALJ

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performed in this case, which quite properly restricted itself to

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recognized credibility factors.

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In

sum,

While Plaintiff correctly observes that he need not

the

Court

finds

no

error

whatsoever

in

the

credibility analysis.
The decision of the ALJ will be affirmed.

The Complaint will be

dismissed with prejudice.
IT IS SO ORDERED.

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ALJ’s

DATED: June 2, 2011

/s/
VICTOR B. KENTON
UNITED STATES MAGISTRATE JUDGE

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