Joel Godinez v. Michael J Astrue, No. 2:2008cv00091 - Document 22 (C.D. Cal. 2008)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton. The Court has found the Administrative Law Judge's decision to be supported by substantial evidence. The Administrative Law Judge discharged his duty both to evaluate the evidence and to properly resolve any conflicts. For the foregoing reasons, the decision of the Administrative Law Judge will be affirmed. The Complaint will be dismissed with prejudice. (READ ATTACHED FOR DETAILS) (esa)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 JOEL GODINEZ, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 08-00091-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for 20 disability benefits. 21 consented that the case may be handled by the Magistrate Judge. 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the record before 24 the Commissioner. 25 ( JS ), and the Commissioner has filed the certified Administrative 26 Record ( AR ). Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the Joint Stipulation 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge ( ALJ ) erred in making 1 credibility findings as to Plaintiff and as to third party 2 witnesses; 2. 3 Whether the ALJ failed to provide Plaintiff with a full and fair hearing;1 4 5 3. 6 Whether the ALJ failed to adequately comply with the instructions by the Appeals Council in its remand order. 7 8 9 This Memorandum Opinion will constitute the Court s findings of fact and conclusions of law. 10 11 After reviewing the matter, the Court concludes that the decision of the Commissioner must be affirmed. 12 13 I 14 THE ALJ PROPERLY EVALUATED THE NATURE 15 AND EXTENT OF PLAINTIFF S SEVERE IMPAIRMENTS (ISSUE NO. 2) 16 Plaintiff applied for disability insurance benefits ( DIB ) on 17 October 23, 2000. His date last insured ( DLI ) under Title II of the 18 Social Security Act ( Act ) is March 31, 2000. 19 date of July 1, 1997. He claims an onset 20 Plaintiff was initially accorded a hearing before an ALJ, which 21 resulted in an unfavorable decision dated September 10, 2003. (AR 120- 22 128.) 23 195-198.) The Appeals Council issued a remand order on May 26, 2004. (AR Additional medical evidence was admitted to the record on 24 25 26 27 28 1 As framed by Plaintiff, this issue fails to identify Plaintiff s claims, as set forth in the JS at 15-16. A correct recitation of the issues encompasses the following: the ALJ failed to develop the record with regard to Plaintiff s foot condition and his seizures, and the ALJ erred in determining Plaintiff s mental status. (See, Id.) The Court will discuss Issue No. 2 as incorporating these separate contentions. 2 1 remand. (AR 2, 507-544.) 2 before a new ALJ, on April 19, 2005 and June 17, 2005. (AR 79-94, 95- 3 114.) 4 Plaintiff to be not disabled under the Act. (AR 19-27.) 5 6 Plaintiff attended two additional hearings This resulted in a decision filed on August 3, 2005, finding In his second issue, Plaintiff makes three separate contentions of error, which the Court will address. 7 8 A. Failure to Develop Record Regarding Foot Ailment. 9 The ALJ evaluated a left foot fracture which Plaintiff suffered 10 in 2001, indicating that subsequent examinations showed essentially 11 normal gait and range of motion within normal limits. (AR 21, 294-298, 12 507-518, 375-401.) As of November 2004, Plaintiff reported occasional 13 ankle swelling with some pain symptoms for which he took over-the- 14 counter 15 consultative examiner ( CE ) that he could walk five blocks and carry 16 25 pounds. (Id.) 17 bunionectomy on his left foot on November 12, 2004, which, the ALJ 18 noted, addressed and corrected a specific problem and resulted in an 19 uneventful recovery after a normal period of convalescence. (AR 22, 20 529-536, 537-544.) ibuprofen. (AR 21-22, 508.) Plaintiff indicated to a Following the 2003 hearing, Plaintiff underwent a 21 Plaintiff asserts that the ALJ failed to note that his bunion was 22 florid long before the surgery, as early as January 2003. (AR 15, 23 citing AR 564, 581.) 24 to 25 bunionectomy. (Id.) request an Plaintiff asserts that the ALJ erred in failing orthopedic evaluation of Plaintiff following the 26 As the ALJ noted, at the April 19, 2005 hearing, testimony was 27 taken from medical expert ( ME ) Dr. Sparks, who relied upon a 28 consultative internal medicine evaluation ( CE ) of November 1, 2004 3 1 (just prior to the foot surgery) by Dr. Rocely Ella-Tamayo, which 2 limited Plaintiff to standing and walking for four hours at a time. 3 (AR 85, 511-512.2) 4 Further, while Dr. Sparks noted that Plaintiff had claimed to Dr. 5 Ella-Tamayo that he had been having pain in his foot for ten years, 6 there are inconsistencies in Plaintiff s own reporting, in that he 7 made no such claim in his October 2000 disability report (AR 242), but 8 did so in his October 2001 report. (AR 258.) 9 Plaintiff raises with regard to his bunion condition is essentially In any event, the issue 10 not relevant to the determination of his disability. The vocational 11 expert ( VE ) testified that an individual who had a reduced capacity 12 for standing and walking due to bunion surgery could, nevertheless, 13 perform thousands of jobs in the local and national economy. (AR 107- 14 109.) 15 ability to stand and walk from that found by the ALJ, he would still 16 be able to perform significant work in the local and national economy. 17 (See 20 C.F.R. §§404.1520(g), 416.920(g) (2008).) Plaintiff does not dispute that even if his RFC reduced his 18 19 B. Mental Status. 20 Plaintiff asserts error in the ALJ s finding that he does not 21 have a severe mental disorder (other than depression). (JS at 15-16, 22 20-21.) 23 24 25 26 27 28 2 As noted by the ALJ, there is a discrepancy between the residual functional capacity ( RFC ) assessed narratively by Dr. EllaTamayo and her assertions in the form attached to her report, which limit Plaintiff to standing and/or walking for two hours in an eighthour workday. (AR 23, 515.) The ALJ noted that nothing in the actual clinical findings would limit Plaintiff to standing for only two hours, except for the brief period of time before he underwent his bunionectomy. (Id.) 4 1 The ALJ s decision rejects a May 2003 assessment of Plaintiff s 2 mental status performed by Dr. Ascani, a psychologist. (AR 23-24, 498- 3 502.) 4 disorder 5 limitations. (AR 500, 505-506.) 6 opinion, and instead rely upon the conclusions of another examining 7 physician, the ALJ must provide specific and legitimate reasons 8 supported by substantial evidence. 9 1211, 1216 (9th Cir. 2005). Indeed, Dr. Ascani opined that Plaintiff had a cognitive and major depression with marked and extreme mental In order to reject Dr. Ascani s See Bayliss v. Barnhart, 427 F.3d In this case, the ALJ extensively 10 discussed the mental health evidence in the record, and noted that Dr. 11 Ascani s opinion conflicted with that of other examining doctors, 12 including Dr. Edelman, who examined Plaintiff in 2001, and Dr. Smith, 13 who examined Plaintiff in 2004. (AR 24, 287-292, 519-524.) 14 also noted clinical findings by neurologist Dr. Mays, and also the 15 findings of Drs. Edelman and Smith, which contradicted Dr. Ascani s 16 conclusion that Plaintiff has a disabling mental impairment. (AR 23, 17 290-291, 296, 521-523.) 18 severely depreciated her credibility because, for example, she noted 19 gait and posture limitations, while the examining neurologist found no 20 abnormality of gait. (AR 23, 294-298.) 21 that no assistive devices were necessary and that Plaintiff was able 22 to perform fine motor activity with both upper and lower extremities. 23 (Id.) 24 that Plaintiff s walk was uneven because he cannot see very well. (AR 25 23, citing AR 500.) 26 visual impairment, and the same conclusion was reported by the 27 internal medicine CE on November 1, 2004 who found Plaintiff s visual 28 acuity to be 20/30 in both eyes without corrective lenses, and noted The ALJ Further, with regard to Dr. Ascani, the ALJ The neurologist also opined The ALJ also noted inconsistencies in Dr. Ascani s conclusion Again, as the ALJ noted, the neurologist noted no 5 1 that Plaintiff was visually able to move about without assistance. (AR 2 23, citing AR at 513.) 3 The Court agrees with Plaintiff s complaint that the ALJ 4 apparently depreciated the validity of Dr. Ascani s psychological 5 testing based on his own interpretation, rather than any expert 6 evidence in the record. 7 ALJ s remaining reasons for discounting Dr. Ascani s conclusions are 8 based on substantial evidence, and must upheld. Nevertheless, despite this shortcoming, the 9 10 C. Seizure Disorder. 11 With regard to seizure symptoms, Plaintiff asserts that the ALJ 12 overstepped in his evaluation of the seizure symptoms, by relying on 13 his own interpretation of testimony and medical records concerning the 14 effect of Plaintiff s seizure medication. (JS at 16, citing AR 25.3) 15 Plaintiff also asserts that the ALJ failed to obtain additional 16 medical evidence regarding the effect of his seizure medication. (Id.) 17 At the hearing, the ME testified that Plaintiff was not complying 18 with his medication up to the middle of 2001, at which time he was 19 still drinking alcohol, and further, that he had a low Dilantin level 20 in June of 2001. 21 or two seizures a month, but in March 2001, told Dr. Edelman that he 22 was having seizures every three months. (AR 23.) 23 evidence submitted to the Appeals Council included an October 2004 24 report by neurologist Dr. Hijazin. (AR 592-594.) This physician noted The ME noted that Plaintiff claimed to be having one Further, new 25 26 27 28 3 The Court understands an ALJ s responsibility as including interpretation of testimony and medical records. Thus, as phrased, Plaintiff s issue is a non sequitur. The Court will, instead, evaluate whether the testimony and medical records constitute substantial evidence. 6 1 that Plaintiff had had seizures in the past which were admitted by him 2 to be related to alcohol, that he was not taking any medication, and 3 that he was asymptomatic. (Id.) 4 that his seizures were correlated with his failure to take medication. 5 (AR 92.) (See also Dr. Ella-Tamayo s note in November 2004 that 6 Plaintiff was not taking medication for seizures [AR 508].) 7 At the hearing, Plaintiff testified Plaintiff s assertion that the ALJ had a duty to develop the 8 record is not borne out by the facts or the law. Such a duty is only 9 manifested where the evidence is ambiguous or inadequate for proper See Mayes v. Massanari, 276 F.3d 453, 459 (9th 10 evaluation of a claim. 11 Cir. (2001); Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). 12 For the foregoing reasons, the issues set forth in Plaintiff s 13 second claim are without merit. 14 15 II 16 THE ALJ S CREDIBILITY FINDINGS 17 ARE SUPPORTED BY SUBSTANTIAL EVIDENCE 18 Plaintiff challenges the credibility findings made by the ALJ 19 both as to himself and as to family members. Plaintiff specifically 20 claims that the ALJ failed to follow requirements for credibility 21 assessment described in Social Security Ruling ( SSR ) 96-7p. (JS at 22 6.) 23 In evaluating subjective symptoms, it is required that the ALJ 24 evaluate whether, first, there is medical evidence of an underlying 25 impairment reasonably likely to be the cause of the alleged symptoms, 26 and 27 convincing 28 Sullivan, 947 F.2d 341, 345 (9th Cir. 1991)(en banc); Thomas v. once that is reasons established, to reject to such 7 provide specific, allegations. (See clear and Bunnell v. 1 Barnhart, 278 F.3d 947, 960 (9th Cir. 2002). 2 assessing 3 §§404.1529(c)(3); 416.929(c)(3) (2008). 4 factors but are specifically noted to be among those with relevance to 5 the evaluation of credibility. 6 credibility findings contained in the ALJ s decision to determine 7 whether these legal standards have been met. Here, the ALJ noted that 8 Plaintiff has received routine and conservative treatment; that pain 9 medication is limited to occasional consumption of mild analgesics; credibility Plaintiff has are not specifically been laid Further, factors in out in 20 C.F.R. These are not exclusive The Court is required to examine the 10 that compliant in taking his seizure 11 medication; that Plaintiff has not been prescribed medication for any 12 condition other than difficulty sleeping, which has improved; that 13 Plaintiff s statements on the record suggest exaggeration of symptoms 14 as to frequency of seizures. (AR at 25.) 15 With regard to inconsistent statements about seizures, the fact 16 is that Plaintiff reported varying frequencies of seizures of a 17 significant level of distinction. The Court has already reviewed this 18 evidence in its decision. Moreover, as the ALJ noted, while Plaintiff 19 alleged that he did little besides sitting and watching television, 20 this assertion lacked some credibility based on other evidence in the 21 record, which indicated that he is able to dress and bathe himself, do 22 simple shopping, read the newspaper, attend church periodically, take 23 the bus or get a ride for transportation, and help with cleaning and 24 cooking. (See AR at 25, citing AR 508.) 25 Plaintiff s reported inability to communicate in English was also 26 noted by the ALJ as being inconsistent with evidence in the record, 27 such as the fact that he has also admitted to being 70% fluent in 28 English. (AR 90-91.) 8 1 Finally, with regard to Plaintiff s contention that the ALJ 2 improperly depreciated the testimony of his family members, the Court 3 notes that the ALJ concluded that these statements establish no 4 different conclusions than Plaintiff s own testimony. (AR 25.) 5 ALJ s statement that these statements would be devalued because 6 Plaintiff s family has a 7 disability benefits is not 8 depreciate the 9 correctly notes, family members typically have an interest, which may credibility in in his basis upon statements. As an appropriate of these a family member obtaining obtaining which to Plaintiff also 11 Nevertheless, the real issue here is whether these statements add 12 anything of import to Plaintiff s own contentions with regard to his 13 subjective limitations, and in that regard, the Court answers in the 14 negative. 15 evidence, and the ALJ justifiably depreciated the lay opinions in 16 favor of the medical testimony. 17 (9th Cir. 2001). 19 pecuniary, interest 10 18 be pecuniary The benefits. Moreover, these lay opinions conflicted with medical See Lewis v. Apfel, 236 F.3d 503, 511 The Court thus concludes that Plaintiff s first issue has no merit. 20 21 III 22 THE ALJ ADEQUATELY COMPLIED WITH 23 INSTRUCTIONS OF THE APPEALS COUNCIL 24 Plaintiff s third and final issue is that the Appeals Council 25 ordered the ALJ to obtain additional 26 impairments, including a mental status examination with psychological 27 testing and medical source statements, but that the ALJ failed to 28 comply. 9 evidence concerning his 1 After the first hearing, additional evidence was received, 2 including the CE by Dr. Ella-Tamayo of November 1, 2004, a psychiatric 3 evaluation of Dr. Smith of November 5, 2004; and additional medical 4 records. (AR 507-544.) 5 Council determined that there was no basis to change the decision, 6 concluding that the ALJ had considered lay witness evidence with 7 regard to evaluation of credibility. (AR 5-6.) After ALJ Varney s decision, the Appeals 8 The parties raise an interesting question, that is, whether the 9 Court can evaluate ALJ Varney s decision based upon whether or not it 10 complied with the remand order of the Appeals Council. 11 Commissioner notes, the remand order itself is not subject to review 12 or enforcement by the Court. (JS at 23, citing Russell v. Bowen, 856 13 F.2d 81, 84 (9th Cir. 1988).) 14 evaluating the decision of the ALJ. 15 and exhaustively discussed the adequacy of the ALJ s evaluation of the 16 medical evidence, including evidence as to Plaintiff s foot problems, 17 seizures, and his mental status. 18 decision to be supported by substantial evidence. 19 his duty both to evaluate the evidence and to properly resolve any 20 conflicts. 21 22 23 The Court s role is limited to Here, the Court has extensively The Court has found the ALJ s The ALJ discharged For the foregoing reasons, the decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 24 25 26 As the DATED: December 8, 2008 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 27 28 10

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