Opinion
NO. CV 11-5262-AGR
06-22-2012
ARMIK DAVOODIANES, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND
ORDER
Plaintiff Armik Davoodianes filed a complaint on July 1, 2011. (Dkt. No. 3.) Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge on July 18 and July 29, 2011. (Dkt. Nos. 7, 9.) On March 7, 2012, 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.
I.
PROCEDURAL BACKGROUND
On March 13, 2008, Davoodianes filed applications for disability insurance and supplemental security income benefits, alleging an onset date of January 15, 2005. Administrative Record ("AR") 30, 152-61. The applications were denied. AR 30. An Administrative Law Judge ("ALJ") conducted a hearing on December 17, 2009, at which Davoodianes and a vocational expert ("VE") testified. AR 54-94. On January 12, 2010, the ALJ issued a decision denying benefits. AR 27-44. On April 19, 2011, the Appeals Council denied the request for review. AR 1-4.
II.
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), this court has authority to review the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence or it is based upon the application of improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).
In this context, "substantial evidence" means "more than a mere scintilla but less than a preponderance; it is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion." Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (citation and quotation marks omitted); Moncada, 60 F.3d at 523; see also Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). When determining whether substantial evidence exists to support the Commissioner's decision, the court examines the administrative record as a whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. Where the evidence is susceptible to more than one rational interpretation, the court must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523.
III.
DISCUSSION
A. Disability
A person is disabled and eligible for benefits, "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Barnhart v. Thomas, 540 U.S. 20, 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003).
B. The ALJ's Findings
The ALJ found that Davoodianes had the severe impairment of "grade 3 hepatitis B." AR 33. He did not have an impairment or combination of impairments that met or equaled the severity of any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 34.
Davoodianes had the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) except that "he can only occasionally climb ladders, ropes and scaffolds and he would need to avoid concentrated exposure to extreme cold and heat." AR 35. Davoodianes could not perform any past relevant work. AR 42. However, there were a significant number of jobs in the national economy that he could perform, such as a cleaner, housekeeper and laundry worker. AR 42-43.
Light work involves lifting no more than 20 pounds occasionally and 10 pounds frequently; and requires a good deal of walking or standing, or sitting most of the time with some pushing and pulling of arm or leg controls. 20 C.F.R. § 404.1567(b).
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time . 20 C.F.R. § 416.967(b).
C. Medical Expert To Determine Medical Equivalency
Davoodianes argues the ALJ erred in failing to utilize a medical expert to determine whether his liver condition met or equaled a listing.
The claimant bears the burden of demonstrating that his impairments are equivalent to a listed impairment that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. Bowen v. Yuckert, 482 U.S. 137, 141, 146 n.5, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987). "If the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled." Id. at 141; Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999); 20 C.F.R. §§ 404.1520(4)(iii), 416.920(4)(iii).
"For a claimant to show that h[is] impairment matches a listing, it must meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify." Sullivan v. Zebley, 493 U.S. 521, 530, 110 S. Ct. 885, 107 L. Ed. 2d 967 (1990) (emphasis in original). "To equal a listed impairment, a claimant must establish symptoms, signs and laboratory findings 'at least equal in severity and duration' to the characteristics of a relevant listed impairment, or, if a claimant's impairment is not listed, then to the listed impairment 'most like' the claimant's impairment." Tackett, 180 F.3d at 1099 (emphasis in original); 20 C.F.R. § 404.1526. "'Medical equivalence must be based on medical findings.' A generalized assertion of functional problems is not enough to establish disability at step three." Tackett, 180 F.3d at 1100 (citation omitted).
Davoodianes makes no showing that he meets or equals a listing. Instead, he argues the ALJ failed to use a medical expert in violation of Social Security Ruling ("SSR") 96-6p. Specifically, Davoodianes argues the state agency medical consultant did not sign the Disability Determination and Transmittal forms. AR 95-96.
The ALJ "is responsible for deciding the ultimate legal question whether a listing is met or equaled." SSR 96-6p, 1996 SSR LEXIS 3, *7-*8. When an ALJ determines that an individual's impairment is not equivalent to any listing, the ALJ may satisfy the duty to receive expert opinion evidence into the record by obtaining the signature of a State medical consultant on an SSA-831-U5, SSA-832-U5 or SSA-833-U5 form, or by "[o]ther documents, including the Psychiatric Review Technique Form and various other documents on which medical and psychological consultants may record their findings." Id. at *8-*9 (July 2, 1996).
The ALJ discussed the evidence which formed the basis of his finding at step three of the sequential analysis. AR 34. The ALJ cited the opinion of the state agency medical consultant in Exhibit 1F and the absence of medical findings in the record required for listing 5.05 (chronic liver disease) or any other listed impairment. Id.
Opinions of state agency medical consultants are "treated as expert opinion evidence of nonexamining sources." SSR 96-6p at *1.
Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005) (claimant "does not specify which listing she believes she meets or equals" and "does not set forth any evidence which would support the diagnosis and findings of a listed impairment"; "An ALJ is not required to discuss the combined effects of a claimant's impairments or compare them to any listing in an equivalency determination, unless the claimant presents evidence in an effort to establish equivalence."). "It is unnecessary to require the Secretary, as a matter of law, to state why a claimant failed to satisfy every different section of the listing of impairments." Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir.1990).
The state agency medical consultant's opinion by Dr. Chambers in Exhibit 1F consists of a Physical Residual Functional Capacity Assessment form dated April 24, 2008, with the attached request for medical advice. AR 415-24. Dr. Chambers found "Hx of Hep B, 2005 Labs: not listing level." AR 416. Dr. Chambers found that Davoodianes could lift 20 pounds occasionally and 10 pounds frequently; sit, stand and walk for about 6 hours in an 8-hour workday; and push or pull consistent with the lift/carry restriction. Id. Davoodianes could only occasionally climb ladders, ropes and scaffolds, and should avoid concentrated exposure to extreme cold and heat. AR 417, 419.
The Physical Residual Functional Capacity form used by Dr. Chambers is Form SSA-4734-BK, which is not one of the listed forms in SSR 96-6p. However, SSR 96-6p permits an ALJ to rely on "other documents," including "various other documents on which medical and psychological consultants may record their findings." SSR 96-6p, 1996 SSR LEXIS 3, at *8-*9. The Physical Residual Capacity form qualifies as a form on which a medical consultant may record his or her findings.
In reply, Davoodianes argues that Dr. Chambers "was simply trying to communicate that the sole medical evidence available to him at the time of his review . . . did not demonstrate a Listing-level impairment." JS at 6.
SSR 96-6p requires an ALJ to obtain an updated medical opinion from a medical expert "[w]hen additional medical evidence is received that in the opinion of the administrative law judge . . . may change the State agency medical or psychological consultant's finding that the impairment(s) is not equivalent in severity to any impairment in the Listing of Impairments." SSR 96-6p at *9-*10.
The ALJ found that "the record does not document medical findings that are equivalent in severity and duration to the criteria of any listed impairment." AR 34, 37-41; see also AR 41 ("laboratory studies do not show a progression of disease with increased serum total bilirubin, decreased serum albumin, increased INR levels or CLD scores to show end-stage liver disease"; "the records document the claimant has exhibited no manifestations of chronic liver disease such as jaundice, enlargement of the liver, ascites, hematemesis, hypoxemia, edema or altered mental status"). This finding is supported by substantial evidence, and Davoodianes does not even argue otherwise. See also Rivera v. Astrue, 2012 U.S. Dist. LEXIS 21584, at *9-*10 (E.D. Wash. Feb. 21, 2012). Davoodianes has not shown the ALJ erred in failing to call a medical expert to testify whether his impairment met or equaled a listing.
D. Occupational Therapist And Kinesiologist's Opinions
Davoodianes argues the ALJ failed to apply the analysis required by SSR 06-03p to an occupational therapist's evaluation dated August 5, 2009. AR 210-224.
The evaluators were an occupational therapist and kinesiologist. AR 210, 224.
The ALJ gave the evaluation "no substantial weight" because it did not come from an acceptable medical source, was based "in large part on the claimant's subjective complaints" and was "inconsistent with the findings on examinations in the treating source records." AR 41.
"Medical sources who are not 'acceptable medical sources,' [include] nurse practitioners, physician assistants, licensed clinical social workers, naturopaths, chiropractors, audiologists, and therapists SSR 06-03p.
Davoodianes does not dispute that an occupational therapist and kinesiologist are not acceptable medical sources. Such evidence may be used "to show the severity of your impairment(s) and how it affects your ability to work." 20 C.F.R. § 404.1513(d)-(e). However, such opinions do not receive the same deference as medical source opinions. See Gomez v. Chater, 74 F.3d 967, 970-71 (9th Cir. 1996) (opinions from "other sources" can be afforded "less weight than opinions from acceptable medical sources."). "The ALJ may discount testimony from these 'other sources' if the ALJ '"gives reasons germane to each witness for doing so."'" Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citation omitted).
Davoodianes argues the ALJ's finding that the evaluation was based "in large part" on his subjective complaints is not supported by substantial evidence. The evaluation concluded Davoodianes "is unable to sustain any substantial work activity at any physical demand level as defined by the Department of Labor." AR 224. The sections on environmental restrictions, pain profile and non-exertional limitations were based largely on subjective complaints. AR 213-14, 221. In terms of clinical findings, Davoodianes "demonstrated normal range of motion in all areas except for his neck, bilateral arms, mid-back, low back, bilateral hips and bilateral legs." AR 216. In those areas, however, the evaluation did not indicate deviations that were debilitating. Id. Manual muscle strength ranged from Grade 3 (defined as "fair" and indicating full range of motion against gravity) to Grade 5 (defined as "normal" and indicating full range of motion against maximum manual resistance). AR 216-17. Davoodianes stated he could lift only 20 pounds. AR 35, 196. In the evaluation, Davoodianes was observed to lift and carry 15 pounds for 20 feet. AR 218. The sit, stand and walk section was based on subjective complaints except for observations that Davoodianes could walk one block, stand for 10-15 minutes, and sit for 30 minutes at a time. AR 219.
Although the section on pain profile states it is also based on objective observations, those observations consist largely of subjective allegations such as somatic complaints, "self-depracatory," complaints of inability to perform, unintelligible verbalization, massage and request for rest breaks. AR 213-14.
Although the section title states it is based on clinical tests, an asterisk is used to denote observed times. None of the results in this section are denoted with an asterisk. AR 221; compare AR 219.
"Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing or pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities." 20 C.F.R. §§ 404.1567(b), 416.967(b).
The push/pull limitation was based solely on the evaluators' beliefs that "[pushing foot controls is an essential job function that should be avoided with people with chronic low back pain secondary to torque that is placed on the back with repetitive foot pedal use." AR 220.
Based on McCarron Dial testing, the evaluation concluded that Davoodianes was below average in fine motor coordination and gross motor skills. AR 221. Gross motor skills mostly relates to endurance for work. Id. "An overall fine motor score at <1st percentile would make it very difficult to work at a job where hand/arm use is an essential function. His fine motor speed and accuracy would not be consistent with assembly work." Id.
None of the representative jobs identified by the VE (cleaner, housekeeper and laundry worker) appear to involve assembly work. AR 42-43.
Davoodianes argues the ALJ fails to point to evidence in the record inconsistent with the evaluation's clinical findings. However, the ALJ carefully reviewed the medical records for the period 2005-2009. The ALJ cited medical records indicating that, in August 2005, Davoodianes denied pain in the upper and lower extremities, denied exertional symptoms, and had no decreased exercise tolerance. AR 37-38, 486. The motor examination was 5/5 in the upper and lower extremities. AR 37-38, 487. The ALJ also cited medical records in 2006 and 2007. AR 37-38. In October 2006, Davoodianes reported low back pain and urinary pain that "comes and goes." AR 512, 574 (mild and intermittent right upper quadrant pain), 575 (6/06, mild and intermittent left upper quadrant pain). In February 2007, Davoodianes had normal strength and tone in all extremities, normal range of motion, and normal walk. AR 509. In September 2007, Davoodianes had no neck pain and normal range of motion; no back pain or tenderness; normal range of motion in upper and lower extremities; normal gait and no focal motor deficits. AR 571. The ALJ cited medical records from 2008. AR 38-39. In February 2008, Davoodianes reported that he walked regularly and had good exercise tolerance. AR 38, 623. In March 2008, Davoodianes denied any overt complaints. AR 38, 621. The physician noted that Davoodianes was working on disability, "but I do not know if he would qualify for either Medicaid or any kind of disability at this point in time." AR 38, 622. In June 2008, Davoodianes reported chronic back pain that keeps him from working. He requested that the physician fill out disability paperwork, but the physician declined to do so and found no pain or tenderness in the back area. AR 38, 617-18. In October 2008, Davoodianes had no complaints, with earlier reflux symptoms having resolved. He had no myalgias, no pain with palpitation, and full strength 5/5 in the upper and lower extremities. AR 39, 611. In March 2009, Davoodianes again reported chronic back pain and requested that the physician fill out disability paperwork. The physician's examination was essentially normal. AR 39, 607. In October 2009, Davoodianes complained only of intermittent and infrequent left flank pain with occasional radiation down to his left groin. AR 39, 649. That could not be elicited on examination. AR 650. Davoodianes was "overall doing well," "in no apparent distress" and "pleasant and interactive." AR 649. He had very mild tenderness bilaterally, with no significant tenderness of his paraspinous musculature and no midline L-spine tenderness. AR 650. His neurological examination was nonfocal. Id.
Davoodianes reported that he did not get abdominal discomfort or chest pain while walking or exercising, but did notice that is occurred after eating spicy Indian food. AR 623. In March 2008, Davoodianes reported that he did not fill his prescription because his abdominal pain subsided after his last visit. AR 620.
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It is the ALJ's province to resolve a conflict in the medical evidence. Moncada, 60 F.3d at 523. The ALJ gave legitimate reasons for discounting the occupational therapist's report. See Molina, 674 F.3d at 1111.
IV.
ORDER
IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed.
IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel.
________________
ALICIA G. ROSENBERG
United States Magistrate Judge