Opinion
NO. EDCV 13-1258 AGR
05-23-2014
CHRISTOPHER JAMES RAY, SR., Plaintiff, v. CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND
ORDER
Plaintiff Christopher James Ray, Sr. filed this action on July 24, 2013. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge on August 1 and 6, 2013. (Dkt. Nos. 9, 10.) On February 27, 2014, 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 May 8, 2010, Ray filed applications for disability insurance benefits and supplemental security income, alleging an onset date of July 31, 2006. Administrative Record ("AR") 10, 127-37. The applications were denied initially and on reconsideration. AR 10, 66-68, 72, 82-87. Ray requested a hearing before an Administrative Law Judge ("ALJ"). AR 89. On November 7, 2011, the ALJ conducted a hearing at which Ray and a vocational expert testified. AR 27-65. On December 14, 2011, the ALJ issued a decision denying benefits. AR 10-22. On June 10, 2013, the Appeals Council denied the request for review. AR 1-3. This action followed.
II.
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), this court reviews the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence, or if it is based upon the application of improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).
"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 the conclusion." Moncada, 60 F.3d at 523. In 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. When the evidence is susceptible to more than one rational interpretation, the court must defer to the Commissioner's decision. Moncada, 60 F.3d at 523.
III.
DISCUSSION
A. Disability
A person qualifies as disabled, and thereby eligible for such 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 Ray meets the insured status requirements through June 30, 2012. AR 12. Following the five-step sequential analysis applicable to disability determinations, Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006), the ALJ found that Ray did not engage in substantial gainful activity after December 2007. AR 13. Ray has the severe impairments of advanced osteoarthritis of the right hip, degenerative disc disease, degenerative meniscal tears of the right knee, and obesity. Id. Ray has the residual functional capacity ("RFC") to perform medium work, except he can lift and/or carry 50 pounds occasionally and 25 pounds frequently; can stand, walk or sit for six hours out of an eight-hour workday with regular breaks; is unlimited with respect to pushing and/or pulling, other than as indicated for lifting and/or carrying; can occasionally climb ramps or stairs; can occasionally balance, stoop, kneel, crouch and crawl; can occasionally use right foot pedals; is precluded from using ladders, ropes and scaffolds; is precluded from hazardous machinery and unprotected heights; can occasionally ambulate over uneven terrain; and is precluded from concentrated exposure to vibration. AR 14. Ray is capable of performing past relevant work as a maintenance repairer. AR 20. In addition, there are other jobs existing in significant numbers in the national economy that he can perform. AR 20-21.
The five-step sequential analysis examines whether the claimant engaged in substantial gainful activity, whether the claimant's impairment is severe, whether the impairment meets or equals a listed impairment, whether the claimant is able to do his or her past relevant work, and whether the claimant is able to do any other work. Lounsburry, 468 F.3d at 1114.
The ALJ found that Ray engaged in substantial gainful activity from October 2006 through December 2007. AR 12.
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C. Medical Equivalency to Listed Impairment 1.02A
Ray contends the ALJ did not provide a proper explanation for determining that he did not equal Listing 1.02A, and did not consider the combined effects of his impairments in determining whether he equals Listing 1.02A.
The claimant bears the burden of demonstrating that his impairments are equivalent to one of the listed impairments that 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. If the impairment is not one that is conclusively presumed to be disabling, the evaluation proceeds to the fourth step ." Id. at 141; see also Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999); 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
"The listings define impairments that would prevent an adult, regardless of his age, education, or work experience, from performing any gainful activity, not just 'substantial gainful activity.'" Sullivan v. Zebley, 493 U.S. 521, 532, 110 S. Ct. 885, 107 L. Ed. 2d 967 (1990) (quoting 20 C.F.R. § 416.925(a)) (emphasis in original). "For a claimant to show that his 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." Id. at 530 (citation omitted) (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 (quoting 20 C.F.R. § 404.1526) (emphasis in original). "'Medical equivalence must be based on medical findings.' A generalized assertion of functional problems is not enough to establish disability at step three." Id. at 1100 (quoting 20 C.F.R. § 404.1526). "An ALJ must evaluate the relevant evidence before concluding that a claimant's impairments do not meet or equal a listed impairment. A boilerplate finding is insufficient to support a conclusion that a claimant's impairment does not do so." Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001).
Listing 1.02 provides as follows:
Major dysfunction of a joint(s) (due to any cause): Characterized by gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis, instability) and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joint(s). With:
A. Involvement of one major peripheral weight-bearing joint (i.e ., hip, knee, or ankle), resulting in inability to ambulate effectively, as defined in 1.00B2b;
. . .
B2b. What we mean by inability to ambulate effectively. Definition. Inability to ambulate effectively means an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities. Ineffective ambulation is defined generally as having
insufficient lower extremity functioning (see 1.00J) to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities. (Listing 1.05C is an exception to this general definition because the individual has the use of only one upper extremity due to amputation of a hand.)
To ambulate effectively, individuals must be capable of sustaining a reasonable walking pace over a sufficient distance to be able to carry out activities of daily living. They must have the ability to travel without companion assistance to and from a place of employment or school. Therefore, examples of ineffective ambulation include, but are not limited to, the inability to walk without the use of a walker, two crutches or two canes, the inability to walk a block at a reasonable pace on rough or uneven surfaces, the inability to use standard public transportation, the inability to carry out routine ambulatory activities, such as shopping and banking, and the inability to climb a few steps at a reasonable pace with the use of a single hand rail. The ability to walk independently about one's home without the use of assistive devices does not, in and of itself, constitute effective ambulation.
20 C.F.R. pt. 404, subpt. P., app. 1, § 1.02.
Ray argues that while he does not meet Listing 1.02A, he equals it. Specifically, he argues that "while the evidence of record may not clearly establish that [he] does indeed meet 1.02A . . . because he is not precluded from walking on uneven ground/terrain, [he] certainly equals the criteria of 1.02A . . . because [he] is very restricted in his ability to walk on uneven ground/terrain as he can only perform this activity occasionally and he has multiple severe impairments." JS 7.
To the extent Ray argues that he equals Listing 1.02A because the ALJ determined that he could only occasionally ambulate over uneven terrain, he is incorrect. See e.g., Moreno v. Astrue, 444 F. App'x 163, 164 (9th Cir. 2011) (concluding that ALJ's RFC determination that limited claimant to walking on even terrain did not establish inability to ambulate effectively under the listings); Hernandez v. Colvin, 2013 WL 1401368, *4 (C.D. Cal. April 4, 2013) (concluding that ALJ's RFC determination that plaintiff cannot walk on uneven terrain "by itself does not establish an inability to ambulate effectively for purposes of the listings").
The ALJ extensively discussed the evidence, and the basis of his listings determination was clear. AR 14-19. As the ALJ noted, no treating or examining physician recorded findings equivalent in severity to the criteria of any listed impairment, and the evidence does not show medical findings that are the same or equivalent to any listed impairment. AR 14. The ALJ found that the treatment records showed that Ray received routine, conservative, and non-emergency treatment. AR 17. He found that Ray engaged in a somewhat normal level of daily activity, including showering, shopping, cooking, vacuuming, doing laundry, and eating out with his family. AR 16, 37-40. The ALJ noted that although Ray appeared at the hearing with a cane, he testified that his physician did not prescribe the cane. AR 16, 34. Ray testified that he does not use the cane at home or in the yard, but only uses it when he knows he is going to be on his feet "for a while." AR 34. The ALJ noted that Dr. Simmonds, a consultative examiner, indicated in October 2010 that Ray did not use assistive devices for ambulation and was able to get onto and off the examination table and assume the supine position without assistance or difficulty. AR 16, 239. Dr. Simmonds opined that Ray did not require an assistive device for ambulation, and he could occasionally walk on uneven terrain. AR 18, 240. Dr. Simmons also opined that Ray could perform a range of medium exertional work. AR 18, 240. The ALJ noted that Ray played baseball in November 2009. AR 16, 222. The ALJ noted that Ray leaned on a walker while standing when he saw Dr. Kim, a workers' compensation medical examiner, in August 2006, shortly after his July 31, 2006 injury. AR 17, 190. The ALJ noted that Ray returned to his regular work as a truck driver on October 9, 2006. AR 17, 206-07. The MRI of Ray's right knee in 2006 showed a very subtle meniscal tear. AR 18, 214. The MRI of Ray's lumbar spine in 2006 showed a lesion in the conus medullaris, possible ependymoma, and multiple degenerative changes. AR 18, 214. Dr. Kim recommended considering arthroscopic surgery, but opined that Ray could perform his regular work. AR 18, 215. The MRI of Ray's lumbar spine in 2008 showed Ray had several disc protrusions, disc dessications, moderate to severe hypertrophic facet changes, and lateral recess stenosis. AR 18, 275.
The ALJ discussed the opinion of Dr. Choi, who provided an orthopedic consultation on January 28, 2011 and saw Ray for three follow-up appointments. AR 19-20, 278-82. Dr. Choi diagnosed Ray with advanced osteoarthritis of the right hip and obesity, and opined in June 2011 that Ray was not able to return to work. AR 18, 280. However, the ALJ gave "little weight" to Dr. Choi's opinion because it was brief, conclusory, and inadequately supported by clinical findings, and was inconsistent with Ray's admitted activities of daily living. AR 19.
The record shows that the ALJ actually considered equivalence. He did not merely state that Ray did not equal a listing, as Ray contends. JS 9 (citing Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990), where the Ninth Circuit reversed and remanded at step three "for proper consideration of step three equivalence").
Ray also argues that the combination of his impairments established medical equivalence. The ALJ considered whether Ray's obesity by itself or in combination with other impairments met or equaled a listing. AR 14. He found that no treating or examining physician had recorded findings equivalent in severity to the criteria of any listed impairment, and the evidence does not show medical findings that are the same or equivalent to any listing. Id. He discussed Ray's weight and noted that Ray was advised to lose weight. AR 18, 220, 238, 280-83. He also noted Ray's ability to ambulate without an assistive device, play baseball, and participate in activities of daily living. AR 16, 38-40, 222, 239-40. The ALJ clearly and explicitly considered Ray's obesity in combination with his other impairments in determining whether Ray equaled a listing. AR 18.
Considering the record as a whole, Ray has not met his burden of demonstrating that he meets or equals the criteria of Listing 1.02A. The ALJ did not err in finding that Ray's impairments do not meet or equal one of the listed impairments.
IV.
ORDER
IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment herein on all parties or their counsel.
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ALICIA G. ROSENBERG
United States Magistrate Judge