Chadwick Rambo Gordon v. Michael J Astrue

Filing 37

MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. The ALJ's decision that Plaintiff is not disabled is affirmed and the action is dismissed with prejudice. IT IS SO ORDERED. See order for details. (jy)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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CHADWICK RAMBO GORDON,
Plaintiff,

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v.

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CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,

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Defendant.

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Case No. CV 12-7830-PJW
MEMORANDUM OPINION AND ORDER

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I.

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INTRODUCTION

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Plaintiff appeals a decision by Defendant Social Security

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Administration (“the Agency”), denying his applications for Disability

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Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”).

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He claims that the Administrative Law Judge (“ALJ”) erred in when he

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(1) found that Plaintiff was not credible, (2) rejected the opinion of

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an examining physician, (3) failed to consider the combined effects of

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Plaintiff’s impairments, and (4) relied on the vocational expert’s

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testimony.

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affirmed.

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For the reasons discussed below, the Agency’s decision is

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II.

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SUMMARY OF FACTS AND PROCEEDINGS

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In 1988, at the age of four, Plaintiff suffered severe burns to

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his upper torso and underwent multiple skin grafts to repair the

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resulting damage to his skin.

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33.)

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alleging that he had been unable to work since September 2007 due to

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third-degree burns on his body, limited use of his hands and arms, and

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back pain.

(Administrative Record (“AR”) 309, 332-

In March 2009, at the age of 25, he applied for DIB and SSI,

(AR 66-72, 111.)

His application was denied initially and

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on reconsideration and, thereafter, he requested and was granted a

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hearing before an ALJ.

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appeared at the hearing with counsel and testified.

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August 4, 2011, the ALJ denied his claim for benefits, finding that

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Plaintiff was not disabled.

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Appeals Council, which denied his request for review.

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This action followed.

(AR 23-31, 34-38.)

(AR 12-21.)

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(AR 318-56.)

On

Plaintiff appealed to the
(AR 2-4, 7-8.)

III.

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On July 28, 2011, he

ANALYSIS

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A.

The ALJ Properly Considered Plaintiff’s Testimony
Plaintiff testified that the pain and limitations caused by his

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burns prevented him from working full time.

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rejected this testimony and found that Plaintiff could perform light

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work that did not require bending or stooping or more than occasional

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handling with his left hand.

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the ALJ erred in his credibility determination.

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19.)

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(AR 17, 18.)

(AR 111, 334.)

The ALJ

Plaintiff contends that
(Joint Stip. at 3-

For the following reasons, the Court disagrees.
ALJs are tasked with judging the credibility of witnesses,

including the claimants.

In making these credibility determinations,
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they may rely on ordinary credibility evaluation techniques.

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v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996).

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produced objective medical evidence of an impairment which could

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reasonably be expected to produce the symptoms alleged and there is no

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evidence of malingering, however, the ALJ can only reject the

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testimony for specific, clear, and convincing reasons, id. at 1283-84,

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that are supported by substantial evidence in the record.

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Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).

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Smolen

Where a claimant has

Thomas v.

Plaintiff alleged in a written disability report that he could

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not grip anything with his left hand and that he could not sit or

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stand for very long because “any length of time sitting or standing”

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resulted in severe back pain, owing to the lack of muscles in his

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back.

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he had a part-time job as a janitor but that he had problems lifting,

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sweeping, and mopping because of back pain and reduced mobility in his

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arms.

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because he could not lift anything, like chairs, trash cans, or

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tables.

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stand for long because his skin got “tighter and tighter,” as it had

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gotten “easier to tear” in the last four years, and he had begun to

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develop contractures in his left arm in 2008 or 2009.

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(AR 111.)

At the July 2011 hearing, Plaintiff testified that

(AR 333-34.)

(AR 339.)

He testified that his cousin helped at work

Plaintiff also explained that he could not sit or

(AR 348, 355.)

The ALJ concluded that Plaintiff’s allegations were not entirely

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credible because the medical records did not support the degree of

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disability alleged by Plaintiff.

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legitimate reason for questioning Plaintiff’s testimony and it is

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supported by substantial evidence.

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F.3d 1157, 1165-66 (9th Cir. 2001) (upholding ALJ's credibility

(AR 18.)

This finding is a

See, e.g., Osenbrock v. Apfel, 240

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determination in part because medical evaluations revealed little

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evidence of disabling abnormality).

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Plaintiff alleged in his 2009 application that he could not sit

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or stand for any length of time.

(AR 111.)

In April 2008, however,

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examining orthopedist Dr. Richard Pollis found that Plaintiff would be

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able to sit, stand, and walk for six hours in an eight-hour workday.1

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(AR 169.)

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who examined Plaintiff in prison suggested that he could not sit or

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stand.

Prison records supported this finding.

(AR 188-282, 224.)

None of the doctors

Rather, they recommended that he, for

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example, be housed on the first floor or on a lower bunk and that he

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not be assigned work that required bending or squatting.

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In fact, in March 2009, one of the prison doctors found that

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Plaintiff’s claimed disability was not supported by examination

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evidence.

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that he could not sit or stand were exaggerated.

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(AR 188.)

(AR 247.)

These records suggest that Plaintiff’s claim

The ALJ also questioned Plaintiff’s testimony because he claimed

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that his condition had gotten worse since 2007 or 2008 (AR 19, 335,

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347-48) but the medical evidence did not support that claim.2

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153-54, 161.)

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testimony.

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(holding ALJ may rely on claimant's unexplained failure to seek

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treatment to find that complaints are exaggerated).

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(AR

This is a valid reason for questioning a claimant’s

See Chaudhry v. Astrue, 688 F.3d 661, 672 (9th Cir. 2012)

The ALJ also discounted Plaintiff’s testimony because he was able
to work in the past, albeit part-time, and because he continued to

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Plaintiff’s challenge to the ALJ’s adoption of Dr. Pollis’
opinion is addressed in the following section below.

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In the Joint Stipulation, Plaintiff contends that his
condition is “progressively deteriorating.” (Joint Stip. at 9.)
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work once a week as a janitor right up through the date of the

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hearing. (AR 19.)

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On the one hand, Plaintiff testified that the janitor job involved

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cleaning and sweeping for seven to eight hours on Saturdays, which

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seemingly conflicted with Plaintiff’s claim that he could not stand

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for any length of time.

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testified that his cousin helped him perform the work, leaving it

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unclear exactly what it was that Plaintiff did himself.

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balance, therefore, the Court does not find this a convincing reason

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The Court finds the evidence mixed on this point.

(AR 322.)

On the other hand, Plaintiff

(AR 334.)

On

for questioning Plaintiff’s testimony.

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The ALJ also found Plaintiff not credible because he was capable

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of caring for his needs and performing most household chores provided

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that he did not use his left arm or hand.

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not find this explanation convincing, either.

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that Plaintiff could care for himself, this care was limited to

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personal hygiene and, for example, cleaning his prison cell three

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times a week.

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does not call into question his claim that he could not work full

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time.

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Cir. 2010) (finding ALJ’s adverse credibility determination

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unsupported where claimant “only performed the amount and extent of

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work that he was able to within his limited capabilities and not the

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heavy work cited to by the ALJ.”)

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(AR 144, 145.)

(AR 18-19.)

The Court does

Though the record shows

His ability to perform these activities

See, e.g., Hostrawser v. Astrue, 364 F. App’x 373, 377 (9th

The issue that remains is whether the ALJ’s credibility finding

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should be upheld, despite the errors discussed above.

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v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008)

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(holding error by ALJ in credibility determination is harmless “[s]o

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long as there remains substantial evidence supporting the ALJ's
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See Carmickle

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conclusions on . . . credibility and the error does not negate the

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validity of the ALJ's ultimate credibility conclusion”).

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Court finds that the ALJ’s first two reasons--that the medical

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evidence did not support Plaintiff’s allegations and that Plaintiff

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failed to seek medical attention for his supposedly disabling pain–-

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are enough to support his finding that Plaintiff was not credible.

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Plaintiff contends that the ALJ erred in overlooking the

Here, the

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testimony of his “non-attorney representative,” who shared a housing

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unit with Plaintiff in prison.

(Joint Stip. at 17-18.)

In April

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2009, the representative filled out a four-page form on which he

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stated that Plaintiff suffered a lot of pain from his burn scars, had

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difficulty sleeping, and appeared fatigued at times.

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The representative also noted that Plaintiff was “willing to try to

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work but burns on body do not allow him to do so.”

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(AR 140, 141.)

(AR 140.)

Clearly, the ALJ erred in failing to address this input but the

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Court finds that the error was harmless because it was inconsequential

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to the ALJ’s ultimate decision.

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comment that Plaintiff was not able to work, which is a conclusion on

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an issue reserved to the Agency, Tonapetyan v. Halter, 242 F.3d 1144,

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1149 (9th Cir. 2001), the representative’s other observations, even if

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credited, would not have caused a reasonable ALJ to conclude that

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Plaintiff was disabled.

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(9th Cir. 2012).

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B.

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Other than the representative’s

See Molina v. Astrue, 674 F.3d 1104, 1116

Thus, this claim is rejected.

The ALJ’s Rejection of Dr. Bader’s Opinion
The ALJ rejected the opinion of one examining doctor, Dr. Semon

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Bader, and adopted the opinion of another examining doctor, Dr.

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Richard Pollis.

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the following reasons, the Court will not disturb the ALJ’s decision.

Plaintiff claims that the ALJ erred in doing so.

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For

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ALJs are tasked with resolving conflicts in the medical evidence.

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Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).

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reject the opinion of an examining doctor that is contradicted by

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another doctor’s opinion, an ALJ must provide specific and legitimate

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reasons that are supported by substantial evidence in the record.

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Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).

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so, here.

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In order to

The ALJ did

As noted above, Dr. Pollis examined Plaintiff in April 2008 and
concluded that Plaintiff would be able to lift and carry 20 pounds

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occasionally and ten pounds frequently; sit, stand, and walk six hours

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in an eight-hour workday; and bend, stoop, crouch, and climb

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frequently.

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limited to activities that did not require fingering or typing, only

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occasional handling and grasping with his left hand, and no more than

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frequent handling, grasping, fingering, or typing with his right hand.

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(AR 169.)

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(AR 169.)

Dr. Pollis also opined that Plaintiff would be

Two years later, in May 2010, Dr. Bader examined Plaintiff and

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concluded that Plaintiff would be able to lift and carry up to ten

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pounds occasionally and five to ten pounds frequently and walk and

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stand four hours in an eight-hour day.

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opined that Plaintiff would be unable to climb, balance, kneel, crawl,

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bend, crouch, stoop, walk on uneven terrain, or work at heights and

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that he could never perform either fine or gross manipulation with his

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hands.

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(AR 313.)

Dr. Bader also

(AR 314.)

The ALJ adopted Dr. Pollis’ opinion and rejected Dr. Bader’s

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opinion in concluding that Plaintiff would be able to perform light

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work that did not involve more than occasional handling, fingering, or

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grasping with his left hand, or more than occasional bending or
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stooping.3

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opinion was because he and Dr. Pollis had made similar clinical

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findings but came to significantly different conclusions.

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This is not a reason for rejecting one doctor’s opinion in favor of

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another’s.

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(AR 17.)

The ALJ’s first reason for rejecting Dr. Bader’s

(AR 19.)

The ALJ next found that Dr. Bader’s functional assessment was

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inconsistent with his own examination findings.

(AR 19.)

This is a

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legitimate basis for rejecting a doctor’s opinion, Johnson v. Shalala,

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60 F.3d 1428, 1432–33 (9th Cir. 1995) (affirming rejection of treating

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doctor's opinion expressed in letter that was inconsistent with

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doctor's own findings) and is supported by the record.

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Bader found that Plaintiff walked with a slight limp, he also

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determined that Plaintiff was able to toe and heel walk, did not use

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an assistive device to walk, and was able to get on and off the

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examining table without difficulty.

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that Plaintiff’s hips, knees, ankles, and feet were unremarkable.

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312.)

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walk or stand for more than four hours in an eight-hour work day (AR

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313), was not supported by his examination results.

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(AR 310.)

Although Dr.

Dr. Bader also found
(AR

Thus, Dr. Bader’s finding that Plaintiff would not be able to

The ALJ also found that Dr. Bader’s assessment was inconsistent

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with the other evidence of record.

(AR 19.)

This is also a

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legitimate basis for rejecting the doctor’s opinion, see Magallanes v.

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Bowen, 881 F.2d 747, 751-54 (9th Cir. 1989) (upholding ALJ's rejection

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of treating doctor's opinion that was contradicted by evidence in the

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Light work is defined in the regulations as lifting no more
than 20 pounds at a time with frequent lifting or carrying of up to
ten pounds, or work requiring a “good deal” of walking or standing.
20 CFR §§ 404.1567(b), 416.967(b).
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record), and is supported by the record.

As set forth in more detail

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above, Plaintiff did not produce any medical evidence to support his

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claim that his condition had so deteriorated between 2008 and 2011

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that he was disabled.

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Bader’s opinion is affirmed.4

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C.

For these reasons, the ALJ’s rejection of Dr.

The Combined Effects of Plaintiff’s Impairments

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Plaintiff contends that the ALJ failed to account for grip

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strength and range of motion limitations found by Dr. Pollis and Dr.

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Bader when the ALJ concluded that he could perform light work with no

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more than occasional handling, fingering, or grasping with his left

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hand.

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(Joint Stip. at 42-45.)

This argument is rejected.

The record shows that the ALJ considered Plaintiff’s ability to

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use his hands and fingers in light of Dr. Pollis’ and Dr. Bader’s

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examinations and Plaintiff’s work history.

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found that Plaintiff’s part-time work as a janitor “would clearly

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involve some fine and gross use of his hands.”

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is supported by the record.

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seven to eight hours on Saturdays “cleaning and sweeping.”

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These tasks require handling and grasping.

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perform them undermines his argument that he is unable to occasionally

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hold things at work.

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forth any authority for the proposition that the ALJ was required to

In particular, the ALJ

(AR 19.)

This finding

Plaintiff testified that he was working

(Joint Stip. at 47.)

(AR 322.)

And Plaintiff’s ability to

Nor has Plaintiff set

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The Agency argues that “reviewing physician” A. Suarez’s
opinion also supports the ALJ’s decision. (Joint Stip. at 40 citing
AR 316-17.) The problem with this argument is that the record does
not establish that the “A. Suarez,” who completed the case analysis
form, is a physician; his or her name is given only as “A.
Suarez/V40,” which suggests that he or she is, in fact, a case worker.
(AR 315.) In any event, the ALJ did not cite to or rely on Suarez’s
opinion to support his decision.
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translate the grip strength and range of motion findings of the

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examining doctors–-which the ALJ questioned--into functional

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limitations.

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2005) (rejecting argument that ALJ was required to “[p]repar[e] a

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function-by-function analysis for medical conditions or impairments

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that the ALJ found neither credible nor supported by the record[.]”).

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D.

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See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir.

The Vocational Expert’s Testimony
Plaintiff argues that the ALJ did not include all of Plaintiff’s

limitations in the hypothetical question to the vocational expert.
(Joint Stip. at 48-50.)

This argument is without merit.

The ALJ was required to include in his hypothetical question only

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those limitations that he found credible and supported by substantial

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evidence in the record.

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rejected the limitations Plaintiff champions here and, therefore, he

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was not required to include them in the hypothetical question to the

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vocational expert.

Bayliss, 427 F.3d at 1217.

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IV.

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The ALJ properly

CONCLUSION

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For these reasons, the ALJ’s decision that Plaintiff is not

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disabled is affirmed and the action is dismissed with prejudice.

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IT IS SO ORDERED.

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DATED: 9/26/14

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PATRICK J. WALSH
UNITED STATES MAGISTRATE JUDGE

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