Banks v. Barnhart

• Decision Date: 13 June 2006
• Docket Number: No. EDCV 05-0021-RC.,EDCV 05-0021-RC.
• Court: U.S. District Court — Central District of California
• Parties: Richard BANKS, Plaintiff, v. Jo Anne B. BARNHART, Commissioner of the Social Security Administration, Defendant.

434 F.Supp.2d 800

Richard BANKS, Plaintiff, v. Jo Anne B. BARNHART, Commissioner of the Social Security Administration, Defendant.

No. EDCV 05-0021-RC.

United States District Court, C.D. California.

June 13, 2006.

Manuel D. Serpa, Binder & Binder, Santa Ana, CA, for Plaintiff.

Assistant U.S. Attorney, Kathryn M. Ritchie, Ausa-Office of U.S. Attorney, Civil Division, Los Angeles, CA, for Defendant.

OPINION AND ORDER

CHAPMAN, United States Magistrate Judge.

Plaintiff Richard Banks filed a complaint on January 6, 2005, seeking review of the Commissioner's decision denying his applications for disability benefits. The Commissioner answered the complaint on May 26, 2005, and the parties filed a joint stipulation on August 3, 2005.

BACKGROUND

I

On September 3, 1999 (protective filing date), plaintiff filed an application for disability benefits under Title II of the Social Security Act ("the Act"), 42 U.S.C. § 423, and on April 12, 2000, plaintiff filed an application for disability benefits under the Supplemental Security Income ("SSI") program of Title XVI of the Act, 42 U.S.C. § 1382(a), claiming an inability to work since October 10, 1998, due to hypertension, depression and throat cancer.¹ Certified Administrative Record ("A.R.") 81-84, 118, 151, 476-80. Plaintiff's Title II application was denied on February 11, 2000, and both applications were denied on June 2, 2000, following reconsideration. A.R. 64-73. Plaintiff then requested an administrative hearing, which was held before Administrative Law Judge F. Keith Varni ("the ALJ") on February 8, 2001. A.R. 31-56. On February 26, 2001, the ALJ issued a decision finding plaintiff is not disabled. A.R. 15-22(a). Plaintiff appealed this decision to the Appeals Council, which denied review on April 19, 2002. A.R. 6-14.

Following the Appeals Council's denial, plaintiff filed Banks v. Barnhart, case no. EDCV 02-0531-RC ("Banks I").² Pursuant to the stipulation of the parties, Judgment in Banks I was entered on March 21, 2003, remanding the matter under sentence four of 42 U.S.C. § 405(g) so the ALJ could "consider the October 2000 opinion of Lisa Perry-Gilkes, M.D., and set forth specific and legitimate reasons should he decide to reject her opinion." A.R. 552-56.

Following remand, an administrative hearing was held before the ALJ, A.R. 511-28, who issued an opinion on April 30, 2004, again finding plaintiff is not disabled. A.R. 503-09. Plaintiff requested review by the Appeals Council, which denied review on October 27, 2004. A.R. 495-502.

II

Plaintiff, who was born on July 25, 1945, is currently sixty years old. A.R. 34, 78. He has a ninth grade education, and has previously worked as a welder, care provider, and security officer. A.R. 101, 514-16.

In the fall of 1998, plaintiff began to complain of hoarseness, which was initially diagnosed as laryngitis. A.R. 192-94, 412. However, on July 8, 1999, plaintiff underwent a laryngoscopy, A.R. 405-06, which revealed well-differentiated squamous cell carcinoma of the larynx. A.R. 444-45. From July 29 through August 6, 1999, plaintiff was hospitalized at the Arrowhead Regional Medical Center, where he had a total laryngectomy³ and cricopharyngeal⁴ myotomy.⁵ A.R. 215-22. Thereafter, plaintiff had radiation therapy, which was completed on October 4, 1999. A.R. 333, 409-10.

Plaintiff had a stoma⁶ and a tube inserted in his throat postoperatively, and he was unable to speak; rather, he communicated primarily by gestures and writing. A.R. 215-16, 331-32. By December 2, 1999, however, plaintiff had "a device which allow[ed] him to speak in a whisper[,] ... [and] with very little effort on the listener's part, he [could] make himself understood." A.R. 254.

On February 10, 2000, plaintiff had a tracheoesophageal puncture⁷ ("TEP") to assist him in speaking. A.R. 278-80. On February 25, 2000, plaintiff was examined by Lisa Perry-Gilkes, M.D., an ear, nose and throat specialist, who found plaintiff was "permanently disabled" since July 29, 1999, and he must avoid exposing his neck to water. A.R. 232, 390.

On May 15, 2000, plaintiff was again hospitalized for a stomatoplasty,⁸ with partial resection of the sternal heads of the sternocleidomastoid muscle, and a cervical esophagoscopy. A.R. 358-61. There were no complications from these procedures, and plaintiff was discharged from the hospital on May 16, 2000. A.R. 356-57. Because the TEP failed to adequately function, it was removed, and on August 10, 2000, plaintiff underwent another tracheoesophageal puncture, A.R. 352-53, and on September 11, 2000, plaintiff had another voice prosthesis inserted. A.R. 350-51. Although plaintiff initially had some difficulty with the artificial larynx, A.R. 303, by October 30, 2000, his speech was "much improved," A.R. 302, and by November 3, 2000, his speech was "excellent." A.R. 300.

On October 15, 2000, Dr. Perry-Gilkes diagnosed plaintiff as having laryngeal cancer with hoarseness, otalgia,⁹ and weight loss, and noted plaintiff "has limited communication ability[,] which is depressing [and] frustrating [to plaintiff] at times." A.R. 487-94. Dr. Perry-Gilkes opined plaintiff: can occasionally lift and/or carry up to 10 pounds; can sit for 5 hours and stand and/or walk for 3 hours in an 8—hour day, but not continuously as he must get up and move around as needed; and plaintiff needs to avoid fumes, gases, temperature extremes and dust, and perform no pushing or pulling. A.R. 489-90, 493. Dr. Perry-Gilkes also opined plaintiff's symptoms were periodically severe enough to interfere with his ability to concentrate and pay attention, and he had demonstrated reasonable fear and stress associated with his disease, although he could emotionally handle low-stress work. A.R. 492. Furthermore, Dr. Perry-Gilkes opined plaintiff would need to take unscheduled breaks 2-3 times daily, resting for 15-20 minutes before returning to work, plaintiff must have ready access to a bathroom, and plaintiff would miss approximately 2-3 days of work a month due to his condition. A.R. 492-93.

On October 2, 2000, Lien Pham, M.D., examined plaintiff and noted he complained of neck and throat pain, general fatigue and sleepiness, and that pain medication was unable to completely relieve plaintiffs pain without unacceptable side effects, and he had a productive cough. A.R. 291-92. Dr. Pham opined plaintiff: can occasionally lift and/or carry up to 20 pounds; can sit for between 0-1 hours and stand for 1-hour in an 8-hour day; is moderately limited in his ability to reach, grasp or perform fine manipulations with either extremity; cannot push, pull, kneel, bend, or stoop; and needs to avoid wetness, fumes, gases, temperature extremes, and dust. A.R. 292-94. Dr. Pham further opined plaintiff cannot keep his neck in a constant position or perform work requiring keeping his neck in one position for a sustained period of time. A.R. 294-95. Finally, Dr. Pham opined plaintiffs condition would frequently interfere with his attention and concentration, he has psychological limitations, and he is incapable of work involving even low-stress. A.R. 295-96.

On November 30, 2000, plaintiffs prosthesis was replaced under anesthesia. A.R. 347-48. Plaintiff complained of throat pain postoperatively, but on December 8, 2000, Dr. Perry-Gilkes found the prosthesis was in a good position and there were no complications since the surgery. A.R. 629.

On January 12, 2004, Rocely Ella-Tamayo, M.D., examined plaintiff and noted he was "using a voice machine because of his inability to phonate. He has chronic tracheostomy. He has chronic cough and occasionally it bleeds sometimes for which he has to take cough medicine all the time." A.R. 664-70. Dr. Ella-Tamayo opined plaintiff "is restricted in pushing, pulling, lifting, and carrying to about 50 pounds occasionally, and about 25 pounds frequently," but is otherwise not restricted. A.R. 669.

DISCUSSION

III

The Court, pursuant to 42 U.S.C. § 405(g), has the authority to review the Commissioner's decision denying plaintiff disability benefits to determine if her findings are supported by substantial evidence and whether the Commissioner used the proper legal standards in reaching her decision. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.2005); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir.1999).

"In determining whether the Commissioner's findings are supported by substantial evidence, [this Court] must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir.1998); Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir.2001). "If the evidence can reasonably support either affirming or reversing the [Commissioner's] conclusion, the court may not substitute its judgment for that of the [Commissioner]." Reddick, 157 F.3d at 720-21; McCartey v. Massanari, 298 F.3d 1072, 1075 (9th Cir.2002).

The claimant is "disabled" for the purpose of receiving benefits under the Act if he is unable to engage in any substantial gainful activity due to an impairment which has lasted, or is expected to last, for a continuous period of at least twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). "The claimant bears the burden of establishing a prima facie case of disability." Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir.1995), cert. denied, 517 U.S. 1122, 116 S.Ct. 1356, 134 L.Ed.2d 524 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir.1996).

Regulations promulgated by the Commissioner establish a five-step sequential evaluation process to be followed by the ALJ in a disability case. 20 C.F.R. §§ 404.1520, 416.920. In the First Step, the ALJ must determine whether the claimant is currently engaged in substantial gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). If not, in the Second Step, the ALJ must determine whether the claimant has a severe impairment...