Rangrej v. Astrue
Filing
28
MEMORANDUM DECISION AND ORDER affirming the decision of the Commissioner and dismissing the 1 Petition for Review. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
SHARIF A. RANGREJ,
Case No. 1:11-cv-00483-MHW
Petitioner,
MEMORANDUM DECISION AND
ORDER
v.
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Respondent.
INTRODUCTION
Currently pending before the Court for its consideration is Petitioner Sharif A.
Rangrej’s (“Petitioner”) Petition for Review of the Respondent’s denial of social security
benefits, filed March 28, 2011. Petition, Dkt. 1. The Court has reviewed the Petition for
Review and the Answer, the parties’ memorandums, and the administrative record
(“AR”). For the reasons that follow, the Court will affirm the decision of the
Commissioner.
MEMORANDUM DECISION AND ORDER - 1
I.
Procedural and Factual History
Petitioner filed an application for Supplemental Security Income on August 10,
2009, alleging disability due to chronic back pain. Petitioner’s application was denied
initially and on reconsideration, and a request for a hearing was timely filed.
Administrative Law Judge (“ALJ”) Lloyd E. Hartford held a hearing on March 31,
2011, taking testimony from Petitioner and a vocational expert. (AR 21-47.) ALJ
Hartford issued a decision finding Petitioner not disabled on May 18, 2011. (AR 6-20.)
Petitioner filed a timely appeal to the Appeals Council which denied his request for
review, making the ALJ’s decision the final decision of the Commissioner. (AR 1-3.)
Petitioner appealed this final decision to this Court. Petitioner is proceeding pro se after
having been represented by counsel at the hearing. The Court has jurisdiction to review
the ALJ’s decision pursuant to 42 U.S.C. § 405(g).
At the time of the hearing, Petitioner was 41 years old. He has a twelfth grade
education and attended college in India and the United States although he did not earn a
degree. He came to the United States in 1997 and became a naturalized citizen. He has
no past relevant work.
II.
Sequential Process
The Commissioner follows a five-step sequential evaluation for determining
whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920. The claimant has
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the burden of proving a disability in the first four steps of the sequential evaluation after
which the burden moves to the Commissioner at the fifth step. Burch v. Barnhart, 400
F.3d 676, 679 (9th Cir. 2005).
At step one, it must be determined whether the claimant is engaged in substantial
gainful activity. The ALJ found Petitioner had not engaged in substantial gainful activity
since the application date, August 10, 2009. (AR 11.)
At step two, it must be determined whether claimant suffers from a severe
impairment. The ALJ found that Petitioner’s chronic back pain is “severe” within the
meaning of the Regulations. (AR 11.)
Step three asks whether a claimant’s impairments meet or equal a listed
impairment. The ALJ found that Petitioner did not have an impairment or combination of
impairments that meets or equals the criteria for the listed impairments. (AR 11.) If a
claimant’s impairments or combination of impairments do not meet or equal a listing, the
Commissioner must assess the residual functional capacity (“RFC”) and determine at step
four whether the claimant has demonstrated an inability to perform past relevant work.
At step four, the ALJ found Petitioner was able to perform a limited range of light
work. (AR 12.) The ALJ also found that because Petitioner had no past relevant work,
transferability of job skills was not an issue. (AR 14. )
At step five, the ALJ found that the claimant retained the capacity to make an
adjustment to other work that exists in significant levels in the national economy, after
considering the claimant’s residual functional capacity, age, education and work
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experience. Here, the ALJ found that Petitioner had the residual functional capacity to
perform the requirements of representative occupations such as cannery worker, peeled
potato inspector, photocopy machine operator, document preparer, dowel inspector, and
final assembler optical. (AR 15.)
III.
Standard of Review
The Petitioner bears the burden of showing that disability benefits are proper
because of the inability “to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which . . . has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A). An individual will be determined to be disabled only if his physical or
mental impairments are of such severity that he not only cannot do his previous work but
is unable, considering his age, education, and work experience, to engage in any other
kind of substantial gainful work which exists in the national economy. 42 U.S.C. §
423(d)(2)(A).
On review, the Court is instructed to uphold the decision of the Social Security
Commissioner if the decision is supported by substantial evidence and is not the product
of legal error. Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). Substantial evidence
is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citations and
internal quotations omitted). It is more than a scintilla but less than a preponderance. Id.
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It is well-settled that if there is substantial evidence to support the decision of the
ALJ, the decision must be upheld “if supported by inferences reasonably drawn from the
record . . .” even “where the evidence is susceptible to more than one rational
interpretation.” Id. The Court may not substitute its judgment for that of the ALJ.
Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006).
IV.
Discussion
Petitioner does not raise specific issues on appeal. More particularly, he does not
object to the ALJ’s determinations that his severe impairment of chronic back pain did
not meet or equal a listed impairment, that he retained the residual functional capacity to
perform light work with certain limitations, that he was not credible, or that he could
perform certain light, unskilled jobs. Rather, he generally disagrees with the ALJ’s
finding that he is not disabled and further states that the fact that his physicians could not
agree on the same diagnosis should not be held against him. The Court will construe his
argument to be that the ALJ’s findings are not supported by substantial evidence.
However, given that a determination of whether the findings are supported by substantial
evidence depends in part on the ALJ’s assessment of Petitioner’s credibility, the Court
will address that issue as well.
Petitioner also contends that Respondent failed to include certain medical records
in the record. More specifically, he contends that the Medical Source Statements of
Ability to Do Work-Related Activities (Physical) dated November 2, 2010 and March 14,
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2011 would have supported his claimed limitations and should have been included in the
record. These documents were among those that were the subject of Petitioner’s Motion
to Augment Record (Dkt. 20) which the Court denied. See Order, Dkt. 26. The Court
found that it could not supplement the record with documents that were before neither the
ALJ nor the Appeals Council. Id. The Court further found that Petitioner had not shown
good cause for failing to present the evidence earlier, had not shown that the evidence
was material, and that there was no reasonable possibility that the documents would have
changed the outcome of the ALJ’s determination. Id. The Court also noted several
factors indicating that the documents may not be authentic. Accordingly, the Court will
not address Petitioner’s claim that Respondent failed to include the subject documents in
the record given its prior determination in resolving the Motion to Augment Record.
A.
Rejection of Petitioner’s Testimony
“The ALJ is responsible for determining credibility, resolving conflicts in medical
testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th
Cir. 2001). To reject a claimant’s testimony regarding impairments, “the ALJ [is]
required to make ‘a credibility determination with findings sufficiently specific to permit
the court to conclude that the ALJ did not arbitrarily discredit claimant’s testimony.’”
Tommasetti, 533 F.3d at 1039 (quoting Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir.
2002)). The ALJ must identify what testimony is not credible and what evidence
undermines the claimant’s complaints. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.
1998). If a claimant produces objective medical evidence of an underlying impairment,
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an ALJ may not reject a claimant’s subjective complaints based solely on lack of medical
evidence. Tommasetti, 533 F.3d at 1039. Unless there is affirmative evidence showing
that the claimant is malingering, the ALJ must provide clear and convincing reasons for
rejecting a claimant’s testimony. Id. Stated another way, “[t]he ALJ must support his
credibility finding ‘with specific, clear and convincing reasons.’” Chaudhry v. Astrue,
688 F.3d 661, 672 (9th Cir. 2012) (quoting Taylor v. Comm’r of Soc. Sec. Admin., 659
F.3d 1228, 1234 (9th Cir. 2011)).
In evaluating credibility, the ALJ may engage in ordinary techniques of credibility
evaluation, including considering claimant’s reputation for truthfulness and
inconsistencies in claimant’s testimony, or between claimant’s testimony and conduct;
claimant’s daily activities; claimant’s work record; and testimony from physicians and
third parties concerning the nature, severity, and effect of the symptoms of which
claimant complains. Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). In
addition to those factors, the ALJ may consider prior inconsistent statements regarding
the symptoms, “other testimony by the claimant that appears less than candid,” and
“unexplained or inadequately explained failure to seek treatment or to follow a prescribed
course of treatment.” Chaudhry, 688 F.3d at 672 (citing Tommasetti v. Astrue, 533 F.3d
1035, 1039 (9th Cir. 2008)). If there is substantial evidence in the record to support the
ALJ’s credibility finding, the Court will not engage in second-guessing. Id.
Here, the ALJ found that Petitioner’s statements concerning the intensity,
persistence, and limiting effects of his chronic back pain symptoms were not credible to
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the extent that they were inconsistent with the residual functional capacity assessment.
(AR 12-13.) Therefore, his finding must be based on specific, clear, and convincing
reasons.
The ALJ specifically noted that Petitioner testified at the hearing that his back pain
usually rated a 9 on a 1 to 10 pain scale, that his pain level could occasionally be
decreased by limiting his activities, and that he only stayed on his feet 10% of his day.
(AR 12.) He also noted Petitioner’s testimony that he is able to lift and carry more than
20 pounds occasionally although usually less than 20 pounds, that he walks three times
per week as part of his physical therapy program, that he can walk 10 to 12 blocks at one
time, that he is able to stand for 20 to 30 minutes at one time, and must change positions
when sitting. (AR 12.) The ALJ also noted that Petitioner acknowledged that no doctor
has told him that he is disabled or that he needs to have surgery for his back issues. (AR
12.)
The ALJ then thoroughly reviewed the medical evidence in the record and
identified the evidence suggesting Petitioner’s claim of disability was less than credible.
For example, he noted that a July 10, 2008 MRI examination revealed “very mild
degenerative disk disease at L3/L4" and the rest of the study was “unremarkable.” (AR
13; 225.) He noted possible diagnoses of “ankylosing spondylitis” and osteoarthritis
with suggested treatment of anti-inflammatory medication, a physical therapy program,
ice, heat, and massage. (AR 13.) The ALJ specifically noted that, during this time
period, Petitioner had refused referrals to physical therapists. (AR 13.)
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The ALJ then focused on the March 10, 2009 letter from rheumatologist Dr. Peggy
A. Rupp who indicated not only that Petitioner’s x-rays and MRIs appeared “quite
normal” but also that she doubted that he had an inflammatory spondylarthropathy. (AR
13.) On the issue of credibility, the ALJ also found significant Dr. Rupp’s subsequent
treatment notes of September 2010 and January 2011, stating that there was nothing in
Petitioner’s “history or exam that would suggest that he has significant spinal arthritis, as
he had no synovitis and no significant limitation in motion.” (AR 13; AR 322.) Dr.
Rupp’s treatment recommendation, similar to that of his prior treating physician, was to
continue exercising and using Aleve (an anti-inflammatory) as needed. (AR 13; 322.)
The ALJ then cited other treatment notes of Dr. Rupp in support of his finding that
Petitioner lacked credibility. Her March 2, 2010 note indicated that Petitioner’s exam
was “unremarkable” and she encouraged him to continue with core strengthening and use
of Aleve or Advil. (AR 13; 304). The Court notes that Dr. Rupp also indicated “minimal
disc degeneration at L3/4,” that recent testing by his primary physician, Dr. Baldridge,
“revealed no evidence of abnormality and in particular no arthritic change,” and that more
aggressive therapy was not warranted because his arthritis was minimal. (AR 13; 304).
The ALJ also referred to results of a June 30, 2010 bone scan indicating “no evidence of
spondylitis.” (AR 13; AR 310.)
Finally, the ALJ referred to State agency consultant Dr. Lloyd Schneiderman’s
conclusion that Petitioner’s allegations of disability were “less than fully credible” and
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that Petitioner was capable of performing work at a light exertional level with certain
restrictions, and Dr. Robert Vestal’s review and concurrence with that assessment. (AR
13; 282-89; 297.) He found their assessments to be consistent with the objective medical
evidence of record. (AR 14.)
The ALJ discounted the assessment of Dr. John C. Welch, one of Petitioner’s
treating physicians, that Petitioner would need to lie down or recline in excess of the time
allotted for normal work breaks, that he could sit for only four hours during an 8-hour
day, could stand and/or walk for four hours during an 8-hour day, and his back pain
would cause Petitioner to be absent from work three to four times per month. (AR 14;
279-81.) He did so because Dr. Welch’s assessment was based primarily on the
subjective information Petitioner provided and was not supported by the objective
medical evidence. (AR 14; 264). Having determined that Petitioner was not credible, the
ALJ was then free to disregard Dr. Welch’s opinion based as it was on Petitioner’s selfreport. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). See also
Tommasetti, 533 F.3d at 1041 (affirming ALJ’s rejection of medical opinion where
responses were a “rehashing of claimant’s own statements” which the ALJ had not found
credible).
The Court finds that the ALJ made sufficiently clear and specific findings to
permit the Court to find that he “did not arbitrarily discredit claimant’s testimony.” See
Tommasetti, 533 F.3d at 1039. In making this finding, the Court also considered and
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found persuasive the statements of Petitioner’s own treating physicians evidencing doubt
that he was disabled. For example, in December of 2008, Dr. W. Patrick Knibbe stated,
“I am certainly not inclined to recommend continued disability evaluation for this
otherwise healthy gentleman . . . . I am a bit wary of his request for disability.” (AR
231.) In August of 2009, Dr. Welch stated, “Qualifying for SS disbility (sic) is extremely
iffy at this time. I don’t think they would approve his application. I informed him
another doctor will not make that much difference, and at this time I feel this would be a
waste of his money.” (AR 266.) In December of 2010, Dr. Stephen Asher, in response to
Petitioner’s request to complete forms for his social security disability benefits
application, wrote that he “[did] not have a neurologic or anatomic explanation for your
low back pain” and referred him back to Dr. Rupp. (AR 319.) Finally, in January of
2011, Dr. Rupp stated, “I am uncertain why he has again returned other than he is about
to appear before a judge for a disability evaluation.” (AR 322.) Even Petitioner’s
attorney at the hearing before the ALJ stated in her opening remarks that “I’ve explained
to Sharif the issues with the records in his case and he’s aware of – there’s not a lot of
strong diagnostic evidence in this case, but he wants to go forward because he does have
back pain.” (AR 25.)
B.
Substantial Evidence Supports the ALJ’s Findings
As stated above, if there is substantial evidence supporting an ALJ’s decision, the
decision must be upheld even if the evidence is susceptible to different interpretations.
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Tommasetti, 533 F.3d at 1038. This is so even if there is evidence supporting a finding of
disability or where the evidence could reasonably support either affirming or reversing
the ALJ’s decision. See Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999); Flaten v.
Sec’y of Health and Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). In evaluating the
evidence, the “ALJ is responsible for determining credibility, resolving conflicts in
medical testimony, and resolving ambiguities.” Edlund, 253 F.3d at 1156. Generally
speaking, greater weight should be given to the opinions of treating sources than to nontreating doctors. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). However, where
another doctor does not contradict a treating doctor’s opinion, the ALJ may reject it for
“clear and convincing” reasons, and where another doctor does contradict the treating
doctor’s opinion, the ALJ may reject it for “specific and legitimate” reasons. Id.
Here, Petitioner appears to rest his disability claim on the vocational expert’s
testimony that absences of three to four days of work per month due to back issues would
preclude employment. (AR 46.) That testimony was premised on Dr. Welch’s opinion
that Petitioner would miss work that frequently. However, as shown above, the ALJ did
not find Dr. Welch’s opinion credible because it was based on Petitioner’s subjective
complaints and not by his own treatment notes. See AR 266 (“Qualifying for SS disbility
(sic) is extremely iffy at this time.”) The Court found above that the ALJ’s credibility
finding as to Petitioner was supported by substantial evidence. Therefore, the ALJ was
not required to include Petitioner’s discounted subjective symptoms in his residual
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functional capacity finding. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir.
2005); Batson v. Comm’r of Soc. Sec. Admin., 359 F3d. 1190, 1197 (9th Cir. 2004). Nor,
as stated above, was he required to give any weight to Dr. Welch’s opinion that was based
on those subjective symptoms. Tonapetyan, 242 F.3d at 1149.
The evidence cited by the ALJ in reaching his credibility determination likewise is
indicative of the substantial amount of evidence supporting the ALJ’s disability
determination. Indeed, absent Petitioner’s own subjective complaints, and Dr. Welch’s
opinion based thereon, there is no arguable support for a finding of disability. Not one of
his various treating, examining, and non-examining physicians shared Dr. Welch’s view.
To the contrary, as summarized in Respondent’s Brief, there is an abundance of other
objective medical evidence in the record – aside from that cited by the ALJ – lending
support to the ALJ’s conclusion. See generally Resp. Brief at 7-12. The other physicians
were skeptical of his claims as indicated by the passages from their notes cited above.
Whether or not they disagreed with a specific diagnosis or cause of his pain, the
physicians, even including Dr. Welch, questioned the extent of the claimed symptoms.
Based on the above, the Court finds that the ALJ’s conclusion that Petitioner is
capable of sustained employment is supported by substantial evidence and not the product
of legal error.
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V.
Conclusion
Based on its review of the entire record, the Court finds that the Commissioner’s
decision is supported by substantial evidence and is not the product of legal error.
Therefore, the Commissioner’s decision finding that the Petitioner is not disabled within
the meaning of the Social Security Act will be affirmed.
ORDER
Based upon the foregoing, the Court being otherwise fully advised in the premises,
it is hereby ORDERED that the Commissioner’s decision finding that the Petitioner is
not disabled within the meaning of the Social Security Act be AFFIRMED and that the
petition for review be DISMISSED.
DATED: March 22, 2013
Honorable Mikel H. Williams
United States Magistrate Judge
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