Julia Smith v. Michael J. Astrue

Filing 17

MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg 1 . Julia Smith ("Smith") filed this action on February 3, 2011. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge on Feb ruary 14 and 17, 2011. (Dkt. Nos. 8-9.) On October 3, 2011, the parties filed a Joint Stipulation ("JS") that addressed the disputed issues. The Court has taken the matter under submission without oral argument. Having reviewed the entire file, the Court affirms the decision of the Commissioner. IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. [SEE ORDER FOR DETAILS] (gr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JULIA SMITH, 12 Plaintiff, 13 v. 14 15 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 16 17 ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 11-182 AGR MEMORANDUM OPINION AND ORDER Julia Smith (“Smith”) filed this action on February 3, 2011. Pursuant to 28 18 19 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge on 20 February 14 and 17, 2011. (Dkt. Nos. 8-9.) On October 3, 2011, the parties filed 21 a Joint Stipulation (“JS”) that addressed the disputed issues. The Court has 22 taken the matter under submission without oral argument. Having reviewed the entire file, the Court affirms the decision of the 23 24 Commissioner. 25 /// 26 /// 27 /// 28 1 I. 2 PROCEDURAL BACKGROUND 3 On December 14, 2005, Smith filed applications for disability insurance 4 benefits and supplemental security income benefits, alleging an onset date of 5 August 26, 2005.1 Administrative Record (“AR”) 429-36, 547-49. The 6 applications were denied initially and upon reconsideration. AR 461-73. On 7 October 24, 2007, the Administrative Law Judge (“ALJ”) conducted a hearing. 8 AR 491-510. On November 27, 2007, the ALJ issued a decision denying 9 benefits. AR 445-55. On February 19, 2008, the Appeals Council denied the 10 request for review. AR 512-15. The ALJ’s decision became the final decision of 11 the Commissioner. 12 Smith appealed the decision. Smith v. Astrue, 2009 WL 837892 (C.D. Cal. 13 Mar. 30, 2009). On March 30, 2009, this court reversed the Commissioner’s 14 decision and remanded the matter at step five. AR 537-42. The ALJ was to clear 15 up the confusion as to whether Smith’s RFC contained any mental limitations 16 and, if so, to consider Smith’s argument that the jobs identified in the ALJ’s 17 decision were outside her RFC. AR 540-41. 18 On December 5, 2009, the Appeals Council directed the ALJ to conduct 19 further administrative proceedings consistent with the remand order, associate 20 the claim file of the duplicate claim filed on December 27, 2007 with the claim on 21 22 1 23 24 25 26 27 28 Prior to these applications, Smith had been found disabled as of May 1, 2000. AR 48-49. In an August 26, 2005 decision, AR 36-45, the Administrative Law Judge (“ALJ”) found that Smith’s medical impairments had improved. AR 41. The ALJ found Smith had the residual functional capacity (“RFC”) to lift or carry 20 pounds occasionally and 10 pounds frequently; stand or walk for a total of six of eight hours with usual breaks; sit for a total of six of eight hours with usual breaks; cannot repetitively bend, stoop, squat, kneel, crouch, and crawl; cannot walk for a prolonged period; cannot do frequent or repetitive forceful grasping, and do work that is non-complex and non-detailed. AR 44-45. This decision finding Smith not disabled became the final decision of the Commissioner and was not appealed. 2 1 remand,2 offer the claimant the opportunity for a hearing, take any further action 2 needed to complete the administrative record, and issue a new decision. AR 3 545. At a March 25, 2010 hearing, the ALJ recused himself because he had 4 issued two hearing decisions. AR 872-74. 5 On June 28, 2010, a different ALJ conducted a hearing at which Smith, her 6 friend, two medical experts and a vocational expert testified. AR 875-920. On 7 November 18, 2010, the ALJ issued a decision denying benefits. AR 11-22. The 8 decision became the final decision of the Commissioner. This action followed. 9 II. 10 STANDARD OF REVIEW 11 Pursuant to 42 U.S.C. § 405(g), this Court reviews the Commissioner’s 12 decision to deny benefits. The decision will be disturbed only if it is not supported 13 by substantial evidence, or if it is based upon the application of improper legal 14 standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. 15 Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 16 “Substantial evidence” means “more than a mere scintilla but less than a 17 preponderance – it is such relevant evidence that a reasonable mind might 18 accept as adequate to support the conclusion.” Moncada, 60 F.3d at 523. In 19 determining whether substantial evidence exists to support the Commissioner’s 20 decision, the Court examines the administrative record as a whole, considering 21 adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the 22 evidence is susceptible to more than one rational interpretation, the Court must 23 defer to the Commissioner’s decision. Moncada, 60 F.3d at 523. 24 25 26 27 28 2 On December 27, 2007, Smith filed applications for supplemental security income and disability insurance benefits, and alleged the same claim. See AR 437-42, 443-44, 545, 550-52, 617. The hearing decision issued on December 5, 2009 was rendered null and void because of the March 30, 2009 remand order. See AR 14 n.1. 3 1 III. 2 DISCUSSION 3 A. Disability 4 A person qualifies as disabled, and thereby eligible for such benefits, “only 5 if his physical or mental impairment or impairments are of such severity that he is 6 not only unable to do his previous work but cannot, considering his age, 7 education, and work experience, engage in any other kind of substantial gainful 8 work which exists in the national economy.” Barnhart v. Thomas, 540 U.S. 20, 9 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003). 10 B. ALJ’s Findings 11 Smith met the insured status requirements through June 30, 2008. AR 17. 12 The ALJ found that Smith had the severe impairments of multilevel 13 degenerative cervical spondylosis with mild spinal stenosis; degenerative disc 14 disease of the lumbar spine; mild thoracic spine scoliosis with osteoporosis; 15 bilateral shoulder impingement syndrome; history of bilateral carpal tunnel 16 syndrome; history of left cubital tunnel syndrome; noninsulin dependent diabetes 17 mellitus; depressive disorder, not otherwise specified (“NOS”); and anxiety 18 disorder, NOS. AR 17. 19 Smith had the RFC to perform light work “except sit one hour at a time up 20 to six hours in an eight-hour workday, stand or walk one hour at a time up to six 21 hours in an eight-hour workday.” AR 19. She could do occasional overhead 22 reaching bilaterally and otherwise frequent reaching, frequent handling, fingering, 23 feeling, pushing or pulling bilaterally; frequent use of the feet; no climbing of 24 ladder or scaffolds; no crawling; occasional balancing, stooping, kneeling, and 25 crouching; frequent climbing of stairs or ramps; no exposure to unprotected 26 heights; no exposure to more than normal levels of pulmonary irritants; no 27 exposure to extreme cold or heat; no exposure to concentrated vibrations; 28 occasional exposure to moving mechanical parts; occasional operation of motor 4 1 vehicles; frequent exposure to humidity and wetness; moderately complex tasks; 2 no public contact; and no hypervigilance.” AR 19-20. 3 Smith is unable to perform her past relevant work. AR 21. However, “there 4 are jobs that exist in significant numbers in the national economy that the 5 claimant can perform” such as small parts assembler, office helper and house 6 cleaner. AR 21-22. 7 8 9 C. Non-Examining Medical Expert Opinion Smith claims the ALJ did not adequately explain his reliance on the opinion of Dr. Lorber, a non-examining medical expert. 10 Opinions of a nonexamining, testifying medical expert “need not be 11 discounted and may serve as substantial evidence when they are supported by 12 other evidence in the record and are consistent with it.” Andrews v. Shalala, 53 13 F.3d 1035, 1041 (9th Cir.1995). 14 Dr. Lorber testified at the hearing, submitted a written assessment, 15 completed a “Medical Source Statement of Ability To Do Work-Related Activities 16 (Physical), and answered interrogatories. AR 853-60, 861-66, 867-69, 882-86. 17 At the hearing, Dr. Lorber testified regarding Smith’s medical treatments, 18 including the results of MRIs, EMGs, and nerve conduction tests. AR 884. Dr. 19 Lorber determined that Smith had severe impairments which would reduce her to 20 a light level of work activity. AR 885. She can occasionally lift 20 pounds and 21 frequently 10 pounds. She can stand, sit and walk for a total of six hours per day. 22 AR 885. She should avoid exposure to concentrated vibration. There were no 23 manipulative, exertional, or positional limitations. Id. In a subsequent written 24 assessment, Dr. Lorber detailed Smith’s medical history/treatments and reviewed 25 additional records submitted after the hearing. AR 853-69. In his Medical Source 26 Statement, Dr. Lorber opined Smith could do a limited range of light work 27 including being able to sit, stand and walk up to one hour at a time and six of 28 eight hours in a day; occasionally reach overhead; frequently reach, handle, 5 1 finger, feel and push/pull; frequently use booth feet, climb stairs and ramps; 2 occasionally balance, stoop, kneel and crouch; never climb ladders, scaffolds or 3 crawl; avoid unprotected heights, dust, odors, fumes and pulmonary irritants, as 4 well as extreme cold, extreme heat, and vibrations; and occasionally move 5 mechanical parts and operate a motor vehicle.3 AR 861-65. 6 Contrary to Smith’s argument, the ALJ’s explanation for his reliance on Dr. 7 Lorber’s was not conclusory or perfunctory. The ALJ accorded “greater weight” 8 to Dr. Lorber’s opinion because it was “consistent with the medical [] record as a 9 whole and more reasonable.” AR 21. The ALJ stated that Dr. Lorber’s opinion 10 “essentially concurred in the impression of a treating neurosurgeon after 11 extensive work up of [Smith’s] neck and upper extremity complaints in 2009. 12 That doctor indicated that [Smith] was not a candidate [for] surgery because the 13 findings did not explain [Smith’s] symptoms. [] Given the many years [Smith] has 14 been evaluated and treated, this opinion . . . better supports a finding of a 15 capacity for light work as found in 2005 and again herein above. Notwithstanding 16 the various expressions of disability by treating sources in the claimant’s worker’s 17 compensation case, there was clearly a significant dispute in that case regarding 18 the severity of the claimant’s impairment. As outlined by Dr. Lorber and above 19 there is still a significant difference of opinion among the claimant’s more recent 20 treating sources about the discrepancy. As Dr. Lorber has reported, the objective 21 findings [are] actually minor and inconsistent.” AR 20-21, 843, 859; see also AR 22 17-18, 289-91, 855, 859-60, 884. Under these circumstances, the opinion of a 23 medical expert may constitute substantial evidence. See also Andrews, 53 F.3d 24 at 1042 (greater weight may be given to medical expert who is subject to 25 cross-examination). Smith does not identify any specific inconsistency between 26 27 28 3 Smith’s argument that Dr. Lorber’s opinion was “limited to the question of whether Ms. Smith’s impairments are of Listing severity” is not well taken. (JS at 8.) Although Dr. Lorber testified about listing severity, his testimony and written assessments clearly extend to Smith’s residual functional capacity. 6 1 Dr. Lorber’s opinion and any other medical opinion or evidence. The ALJ did not 2 err. 3 D. Cervical Spine Condition 4 Smith contends that the ALJ “did not factor” the radiographic evidence of 5 Smith’s cervical condition into his assessment. JS 21. She does not make this 6 argument “for the purpose of attacking any ALJ finding.” Id. 7 Smith cites to several examples of her cervical spine condition. Contrary to 8 her argument, the ALJ did not ignore this evidence. In his listing of severe 9 impairments, the ALJ included multilevel degenerative cervical spondylosis with 10 mild spinal stenosis, degenerative disc disease of the lumbar spine, and mild 11 thoracic spine scoliosis with osteoporosis. AR 17. The fact that Smith has been 12 diagnosed as having impairments related to her cervical spine alone is insufficient 13 to establish the existence of work-related limitations. See Matthews v. Shalala, 14 10 F.3d 678, 680 (9th Cir. 1993) (mere existence of symptoms or impairment is 15 insufficient proof of disability). A plaintiff bears the burden of producing medical 16 evidence establishing the existence of an impairment, its severity, and how it 17 affects the plaintiff's functioning. 20 C.F.R. § 404.1512(c). Here, Smith fails to 18 cite to any work related limitations that were inconsistent with the ALJ’s RFC 19 assessment based on her cervical condition. Thus, the ALJ did not err. 20 21 22 ORDER IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. 23 24 DATED: January 24, 2012 25 ALICIA G. ROSENBERG United States Magistrate Judge 26 27 28 7

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