Earl R Holt v. Michal J Astrue, No. 2:2008cv02052 - Document 17 (C.D. Cal. 2008)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Ralph Zarefsky (es)
Download PDF
<![CDATA[
O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 EARL R. HOLT, 12 13 14 15 16 Plaintiff, vs. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) CASE NO. CV 08-02052 (RZ) MEMORANDUM OPINION AND ORDER 17 Plaintiff Earl Holt raises two challenges to the Social Security Commissioner s 18 determination that he is not disabled. He argues that the Administrative Law Judge erred 19 in finding that he did not need a cane. He also argues that the Administrative Law Judge 20 erred in finding him not credible. In the Court s view, the claims Plaintiff now makes do 21 not require a reversal or remand. 22 The issue of the cane is a bit perplexing. The Administrative Law Judge 23 specifically found that there is no medical necessity for a hand held ambulatory assistive 24 device. [AR 22, citation omitted]. Plaintiff points to notes in the medical record 25 indicating that, at an urgent care facility, Plaintiff was being referred to Durable Medical 26 Equipment for a cane [AR 296]. On this same page, however, are the notations that 27 Plaintiff usually uses cane to walk up the stairs, and Pt requested cane lost his 28 recently. These references are ambiguous; they are not exactly a medical determination 1 that a cane is necessary, so much as a recording of what Plaintiff said, and an 2 accommodation to Plaintiff s request. 3 Plaintiff also points in this Court to other references. One of them simply 4 states that Plaintiff walks with a cane [AR 230]; another appears to state that Plaintiff uses 5 a cane for support and ambulation [AR 233]; another makes no obvious reference to a cane 6 [ AR 238]; another again mentions that Plaintiff is ambulating with a cane. [AR 415] 7 It seems pretty clear that Plaintiff was using a cane at various times, or at least 8 told various medical personnel (including nurses or intake clerks) that he was. The 9 Administrative Law Judge s finding was a little bit more precise, however. He did not state 10 that Plaintiff was not using a cane at all, but that a cane was not medically necessary. It 11 may be that, had he said that Plaintiff needed a cane, that such a finding could have been 12 sustained on this record. But the question for this Court is different: does substantial 13 evidence support the finding that he did make? The Administrative Law Judge referenced 14 the medical consultant s determination that a cane was not medically necessary as the basis 15 for his conclusion. [AR 22, citing AR 193] This suffices as evidence which a reasonable 16 person would conclude supports the determination. 17 Moreover, the question of use of a cane is a bit of a red herring. The residual 18 functional capacity found by the Administrative Law Judge did not require that Plaintiff 19 ambulate, and therefore did not require a decision on whether a cane was necessary or not. 20 The Administrative Law Judge found that Plaintiff should be allowed a sit/stand option. 21 [AR 22] In his conclusion that there were sufficient jobs in the economy which Plaintiff 22 could perform, the Administrative Law Judge was backed by the testimony of the 23 vocational expert, and the vocational expert had so testified while taking into account that 24 the jobs would require a sit/stand option. [AR 24; 556-57] Thus, the Administrative Law 25 Judge s determination with respect to whether Plaintiff needed to use a cane does not offer 26 a basis for reversing the decision, or remanding for further exploration. 27 The second argument Plaintiff makes is that the Administrative Law Judge did 28 not give clear and convincing reasons for rejecting the subjective limitations of Earl Holt. -2- 1 (Plaintiff s Memorandum in Support of Complaint at 4 et seq.) The Court agrees with 2 Plaintiff that the Administrative Law Judge s statement of an inconsistency in Plaintiff s 3 testimony about the use of sleeping pills is, in fact, no inconsistency; a person can use 4 sleeping pills even if he would prefer not to. In other respects, however, the Administrative 5 Law Judge did provide sufficient reasons for concluding that Plaintiff s pain was not as 6 impairing as Plaintiff asserted. The Administrative Law Judge recited the medical 7 evidence in detail, and noted that Plaintiff s complaints were out of proportion to the 8 medical evidence, including the absence of evidence of muscle atrophy which would be 9 expected of someone as inactive as Plaintiff asserted his impairment made him. [AR 22] 10 The Administrative Law Judge also noted the conservative medical treatment; the 11 inconsistency between Plaintiff s activities and his claimed status of incapacity; and the 12 lack of candor with respect to Plaintiff s past use of drugs and alcohol. [AR 23] These are 13 sufficient reasons for impeaching Plaintiff s credibility as to the impact of his pain. See 14 Rollins v. Massanari, 261 F. 3d 853, 857 (9th Cir. 2001) (medical evidence is one factor 15 to be considered in evaluating credibility); Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th 16 Cir. March 19, 2001) (inconsistent statements and tendency to exaggerate may be 17 considered); Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir. 1995) (conservative medical 18 treatment is a factor properly to be considered). The fact that there may be other 19 interpretations of a claimant s testimony that are reasonable does not mean that the ALJ 20 erred. As long as the ALJ s interpretation is reasonable and is supported by substantial 21 evidence, it is not the role of the Court to second-guess it. Rollins v. Massanari, 261 F. 3d 22 853, 857 (9th Cir. 2001). In accordance with the foregoing, the decision of the Commissioner is 23 24 25 affirmed. DATED: November 19, 2008 26 27 28 RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE -3-
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
