Sameoy Long v. Michael J Astrue, No. 2:2007cv03197 - Document 19 (C.D. Cal. 2008)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. The Court concludes that the administrative law judge's reasons for rejecting Plaintiff's testimony were sufficient to support his finding. The administrative law judge's decision is affirmed. (READ ATTACHED ORDER FOR DETAILS) (esa)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SAMEOY LONG, Plaintiff, 11 12 13 14 15 v. MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 07-3197-PJW MEMORANDUM OPINION AND ORDER 16 17 Before the Court is Plaintiff s challenge to a decision by 18 Defendant Social Security Administration (hereinafter the Agency ), 19 denying his claim for Supplemental Security Income ( SSI ) payments. 20 Plaintiff alleges that the administrative law judge ( ALJ ) erred when 21 he found that Plaintiff s testimony was not entirely credible. 22 Stipulation ( JS ) at 5.) 23 concludes that the ALJ s reasons for rejecting Plaintiff s testimony 24 were sufficient to support this finding. 25 26 27 28 (Joint For the following reasons, the Court In October 2004, Plaintiff filed an application for SSI benefits, alleging that he was disabled as of November 3, 2001. (Administrative 1 Record ( AR ) at 177-80.)1 2 requested and was granted an administrative hearing. 3 2006, Plaintiff appeared with counsel and testified at the 4 administrative hearing. 5 His claim was denied by the Agency and he On March 29, (AR 398-407.) Plaintiff told the ALJ that he got sick a lot. (AR 401.) He 6 explained that he had chest pain, trouble sleeping, trouble breathing, 7 and was prone to getting angry and upset. 8 the medicine he was taking zapped his energy and made him feel weaker. 9 (AR 402.) (AR 401.) He described how According to Plaintiff, he could not walk a block, could 10 stand and/or sit for only ten minutes, and could lift only two to 11 three pounds. 12 claimed he went to school (in Cambodia) three or four years. 13 403.) 14 in his application that he made it to the 5th grade, Plaintiff agreed. 15 (AR 403.) 16 which indicated that it had been issued in May 2005, ten months before 17 the hearing. 18 apartment in Los Angeles with his 22-year-old daughter, who performed 19 most of the household chores. 20 could not cook, beyond boiling water for noodles, and did not know how 21 to operate a washing machine. 22 that he was unable to fill up his car with gas and had his daughter go 23 with him when he had to. 24 had been driving since 1980 and, thus, his 22-year-old daughter had 25 not always been around to help him, Plaintiff explained that, in those (AR 402-03.) Plaintiff, who was born in June 1953, (AR When pressed by the ALJ regarding the fact that he had stated Plaintiff produced his driver s license at the hearing, (AR 404.) Plaintiff testified that he lived in an (AR 406-07.) (AR 406-07.) (AR 407.) Plaintiff claimed that he Plaintiff told the ALJ When the ALJ noted that Plaintiff 26 27 28 1 A prior SSI application filed in May 2002, alleged the same date for the onset of disability, i.e., November 3, 2001. This claim was denied in November 2003. (AR 42-47.) 2 1 days, friends helped him fill up his car with gas. 2 Plaintiff claimed that he had to use the bathroom up to ten times in 3 two hours, and 20 to 30 times a night. 4 that he does not sleep well at night, waking up every half hour, and 5 does not sleep during the day. 6 lied down during the day, Plaintiff corrected himself, stating that he 7 did lie down sometimes but he had forgotten about that. 8 9 (AR 408.) (AR 409.) Plaintiff s daughter testified next. (AR 407-08.) Plaintiff testified When his lawyer asked if he (AR 409.) (AR 409.) She told the ALJ that Plaintiff s wife and son shared the apartment with Plaintiff and 10 his daughter. 11 lot of energy and did not help with the chores around the house. 12 410-11.) 13 he did not have a lot of energy and had too much pain. 14 (AR 410.) She explained that Plaintiff did not have a (AR In the daughter s view, Plaintiff could not do much because (AR 414.) In June 2006, the ALJ issued a decision, denying Plaintiff s 15 application for SSI. 16 residual functional capacity to perform a full range of medium work, 17 i.e., could lift and carry 50 pounds occasionally and 25 pounds 18 frequently, and could stand, walk, and sit for six hours a day. 19 25-26.) 20 lift two to three pounds and sit and/or stand for only ten minutes. 21 (AR 25-26.) (AR 20-27.) He found that Plaintiff had the (AR The ALJ rejected Plaintiff s testimony that he could only He based this finding on the following: 22 The claimant s statements concerning the intensity, duration 23 and limiting effects of these symptoms are not entirely 24 credible. 25 generally credible, but disproportionate to the severity of 26 his impairments as indicated in the medical record. 27 claimant claims his impairments first began to bother him in 28 1997, yet he had not worked since 1985, some twelve years [The daughter s] testimony is found to be 3 The 1 earlier. [AR 214-23.] He told Dr. Bagner on May 12, 2005 2 that he had lost 25 pounds over the past year. 3 However, his medical charts at Asian Pacific Health Care 4 Venture show his weight has been between 166 to 172 pounds 5 from 2000 to February 2005. 6 he weighed 178 pounds. 7 has no problem with dressing, bathing, caring for his hair, 8 shaving, feeding himself, and using the toilet. He is able 9 to cook meals. He is still [AR 256-317.] [AR 365.] [AR 270.] On May 10, 2005, The claimant stated he He cleans and does the laundry. 10 able to drive and go shopping. 11 diabetes mellitus and hypertension, while uncontrolled at 12 times due to noncompliance with medication, have not 13 resulted in end-organ damage. 14 capable of performing a full range of medium duty work. 15 [AR 224-31.] Moreover, his As such, the claimant remains (AR 26.)2 Plaintiff charges that the ALJ s reasoning was flawed. 16 (JS at 17 6.) In his view, the ALJ failed to offer a single legally sufficient 18 reason to reject his testimony. 19 specifically on the ALJ s finding that the medical evidence did not 20 support the level of limitation described by Plaintiff. 21 In Plaintiff s view, this is never enough. 22 challenges the ALJ s finding that Plaintiff s claimed limitations were 23 inconsistent with his daily activities. 24 that the law does not require that a claimant be a vegetable in 25 order to be found disabled. (JS at 6.) (JS at 12.) Plaintiff focuses (JS at 7.) (JS at 8.) (JS at 7.) Plaintiff also Plaintiff argues For the reasons set forth 26 27 2 28 The Court has inserted the AR page cites in place of the exhibit numbers used by the ALJ. 4 1 below, the Court concludes that the ALJ s justifications for rejecting 2 Plaintiff s credibility were specific, clear, and convincing and, 3 therefore, his finding will be affirmed. 4 An ALJ must undertake a two-step analysis when considering a 5 claimant s subjective symptom testimony. 6 1273, 1281 (9th Cir. 1996). 7 claimant has produced objective medical evidence of an impairment 8 which could reasonably be expected to produce the symptoms alleged. 9 Id. at 1281-82. Smolen v. Chater, 80 F.3d First, he must determine whether the And second, he must determine the claimant s 10 credibility as to the severity of the symptoms. 11 claimant produces objective medical evidence of an impairment, shows 12 that the impairment could be expected to produce the symptoms alleged, 13 and there is no evidence of malingering, the ALJ can only reject the 14 claimant s testimony concerning the severity of the symptoms by citing 15 specific, clear, and convincing reasons for doing so. 16 Id. at 1282. If the Id. at 1283-84. In making a credibility determination, the ALJ may take into 17 account, among other things, ordinary credibility evaluation 18 techniques and the claimant s daily activities. 19 ALJ's credibility finding is supported by substantial evidence in the 20 record, the Court may not engage in second-guessing. 21 Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). Id. at 1284. If the Thomas v. 22 The ALJ cited four reasons for rejecting Plaintiff s testimony: 23 1. It was inconsistent with the medical record. 24 2. Plaintiff stopped working in 1985, yet he claimed that his 25 26 27 impairments first began to bother him in 1997. 3. Plaintiff reported that he had lost 25 pounds in the past year, which the medical record contradicted. 28 5 1 4. 2 claimed limitations. 3 (AR 26.) 4 A. 5 Plaintiff s daily activities were inconsistent with his The Court will address each in order. The Medical Record In somewhat obtuse language, the ALJ found that the medical 6 record did not support Plaintiff s claimed limitations: [The 7 daughter s] testimony is found to be generally credible, but 8 disproportionate to the severity of his impairments as indicated in 9 the medical record. (AR 26.) Both Plaintiff and Defendant have 10 interpreted this language to mean that this was the ALJ s way of 11 saying that Plaintiff s testimony was questionable because it was not 12 supported by the medical record. 13 interpretation for purposes of review. 14 The Court will accept that An ALJ is free to consider the medical record in testing a 15 claimant s credibility. 16 F.3d 595, 600 (9th Cir. 1999). 17 does not support a claimant s alleged limitations, the ALJ may 18 discount the claimant s testimony. 19 findings in medical record supporting claimant s allegations of pain 20 sufficient to reject claimant s pain testimony). 21 Morgan v. Comm r of Soc. Sec. Admin., 169 Where the objective medical evidence Id. (holding lack of objective There were a number of doctors who provided input in this case. 22 Only one could fairly be said to support Plaintiff s claims of 23 disabling physical pain and limitations, Dr. Chee. 24 But the ALJ discounted Dr. Chee s opinion because he found that it was 25 not supported by medical evidence, and Plaintiff has not challenged 26 this finding. 27 record supports the ALJ s finding that the medical evidence does not 28 support Plaintiff s claimed limitations. (AR 24.) (AR 356, 397.) Eliminating that opinion from the mix, the 6 Dr. Adi Klien, a board 1 certified internist, found that Plaintiff had no limitations. (AR 2 363-67.) 3 condition was normal. 4 full range of motion in his neck, back, shoulders, elbows, wrists, 5 knees, hips, and ankles. 6 measured at 40 pounds in both hands. 7 normal throughout his body. (AR 366.) 8 a scale of five. In short, there was nothing unusual about 9 Plaintiff when he was examined by Dr. Klein. In a word, Dr. Klein determined that Plaintiff s physical (AR 363-67.) (AR 366.) (AR 366.) He found that Plaintiff had a Plaintiff s grip strength was (AR 365.) His muscle tone was His motor strength was five on 10 Yet, Plaintiff testified at the administrative hearing that he 11 could lift and carry only two to three pounds and could only sit or 12 stand for ten minutes. 13 huge exaggeration, and the ALJ was at liberty to reject it based on 14 the objective medical evidence that Plaintiff did not suffer from any 15 physical limitations. 16 is sensitive to Plaintiff s argument that, under Bunnell v. Sullivan, 17 947 F.2d 341, 345 (9th Cir. 1991) (en banc), the ALJ should not rely 18 on a lack of objective medical evidence to discount a claimant s 19 testimony regarding the degree or the intensity of his disabling pain, 20 where, as here, the medical evidence indicates that there is, 21 essentially, nothing wrong with the claimant, the ALJ is free to 22 reject the claimant s testimony that he can lift only two pounds and 23 sit and stand for only ten minutes. 24 F.3d 742, 751 (9th Cir. 2007).3 (AR 402-03.) Obviously, this was, at best, a See Morgan, 169 F.3d at 600. Though the Court See, e.g., Parra v. Astrue, 481 25 26 27 28 3 Generally, the Court looks askance at an ALJ s rejection of a claimant s testimony based on the generic his claimed limitations are not supported by the objective medical evidence. The Court usually requires a more tailored approach, whereby the ALJ explains which claims are not supported by which evidence. In the case at bar, 7 1 B. 2 Plaintiff s Failure To Work Since 1985. The second reason the ALJ provided for rejecting Plaintiff s 3 testimony was that he had not worked since 1985, though he claimed 4 that his impairments did not begin to bother him until 1997. 5 Plaintiff has not addressed the significance of this finding. 6 Agency points out that the regulations provide that work history is a 7 proper consideration in a credibility analysis, citing 20 C.F.R. 8 ยง 416.929(c)(3). 9 thinking that a claimant who has not worked in 20 years and is seeking 10 benefits claiming that the reason he has not worked for the last nine 11 years was because of his impairments leaves himself open to the 12 argument that his impairments are not what precludes him from working. 13 The ALJ properly relied on this factor in discounting Plaintiff s 14 credibility. 15 C. 16 (AR 26.) The The Court agrees that there is some merit to the Plaintiff s Statements Regarding His Weight To His Doctor Plaintiff reported to an examining psychiatrist in May 2005 that 17 he had lost 25 pounds over the past year. 18 record does not support this statement. 19 Plaintiff s weight had remained constant during that period and had, 20 in fact, increased right before he told the doctor that he had lost 21 weight. 22 claim to find that he was not credible. 23 ground for questioning a claimant s credibility, and is supported by (AR 257-317.) (AR 370.) The medical Rather, it appears that The ALJ relied in part on Plaintiff s false (AR 26.) This is a valid 24 25 26 27 28 however, it is so clear that none of the accepted medical evidence supports anything even approaching Plaintiff s claimed limitations that the Court will accept the ALJ s rejection of Plaintiff s testimony on the general ground that it is not supported by the medical evidence. 8 1 the record. 2 ordinary credibility evaluation techniques in assessing claimant s 3 credibility). 4 D. 5 See Smolen, 80 F.3d at 1284 (stating ALJ may apply Plaintiff s Daily Activities The final reason cited by the ALJ for rejecting Plaintiff s 6 testimony was that his daily activities were inconsistent with his 7 testimony that he could only lift two to three pounds and stand or sit 8 for ten minutes. 9 minimal and that the ALJ s reliance on them to find him not credible 10 is tantamount to requiring him to be a vegetable to be eligible for 11 benefits. 12 not have to be a vegetable to qualify for SSI benefits. 13 what the ALJ concluded, however. 14 conclude was that, if Plaintiff could only lift two to three pounds 15 and only sit or stand for ten minutes he would not be able to perform 16 the daily activities he claimed that he performed. 17 reason for discounting a claimant s credibility and it is supported by 18 this record. 19 (explaining inconsistencies between the level of activity and 20 claimant s alleged limitations have bearing on credibility). 21 (AR 26.) (JS 8-13.) Plaintiff argues that his activities were The Court disagrees. Clearly, a claimant does That is not A fair reading of what he did That is a valid See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) Because the ALJ provided specific, clear, and convincing reasons 22 for finding that Plaintiff was not credible and because the underlying 23 bases for these reasons were supported by substantial evidence, his 24 finding is affirmed. 25 Finally, it appears that Plaintiff is also challenging the ALJ s 26 discounting of his daughter s testimony. 27 testimony was that her father could not do much because he did not 28 have much energy. (AR 409-15.) (JS at 5.) The sum of her Her testimony, however, did not deal 9 1 with any specifics regarding Plaintiff s residual functional capacity, 2 i.e., how long he could sit and stand and how much he could carry. 3 Even crediting her testimony, the ALJ would still have arrived at the 4 same conclusion, i.e., that Plaintiff could work. 5 Plaintiff is challenging the ALJ s treatment of his daughter s 6 testimony, the Court concludes that any error in addressing it was 7 harmless. 8 (9th Cir. 2006) (explaining ALJ s failure to discuss lay testimony is 9 harmless error where court can confidently conclude that no Thus, assuming Stout v. Comm r Social Security Admin., 454 F.3d 1050, 1056 10 reasonable ALJ, when fully crediting the testimony, could have reached 11 a different disability determination ). 12 is affirmed. As such, the ALJ s decision 13 IT IS SO ORDERED. 14 15 DATED: September 8 , 2008. 16 17 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 S:\PJW\Cases-Soc Sec\LONG, S 3197\Memo_Opinion.wpd 10
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