Ernest C. Washington v. Commissioner of Social Security Administration, No. 2:2008cv08535 - Document 28 (C.D. Cal. 2009)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton. The Court concludes that the ALJ did not err in finding that Plaintiff has no severe impairments. Consequently, the decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. (rp)
Download PDF
<![CDATA[
1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 ERNEST C. WASHINGTON, 12 13 14 15 16 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 08-08535-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 Summary Judgment, Memorandum of Points and Authorities and Statement 26 of Uncontroverted Facts and Conclusions of Law in support of the 27 Motion for Summary Judgment ( MSJ ). 28 for Summary Judgment and Opposition to Plaintiff s Motion for Summary Pursuant to 28 U.S.C. §636(c), the parties have The On August 11, 2009, Plaintiff filed a Motion for The Commissioner s Cross-Motion 1 Judgment were filed on September 1, 2009 ( Opposition ). 2 has not filed a Reply. 3 Administrative 4 adjudication. 5 In his Record Statement Plaintiff Plaintiff The Commissioner has filed the certified ( AR ). of The Genuine asserts that matter Issues he has to is now Motion 6 Judgment, the 7 1. 2. Diabetic neurothopy [sic]; 10 3. Peripheral artery disease; 11 4. Discoid lupus; 12 5. Meningitis; 13 6. Depression; and 14 7. following Summary Diabetes mellitus Type I (uncontrolled); 9 for for impairments:1 8 ready severe Insomnia. 15 16 This Memorandum Opinion will constitute the Court s findings of 17 fact and conclusions of law. After reviewing the matter, the Court 18 concludes that the decision of the Commissioner must be affirmed. 19 20 I 21 THE ALJ DID NOT ERR IN FINDING THAT 22 PLAINTIFF DID NOT HAVE A SEVERE IMPAIRMENT 23 In a comprehensive 14-page decision, the ALJ determined that 24 25 26 27 28 1 In view of the fact that the Administrative Law Judge ( ALJ ), in his decision (AR 11-24), found that Plaintiff does not have any severe impairments (see 20 C.F.R. §§404.1521, 416.921 (2009)), the Court views Plaintiff s MSJ as attacking the ALJ s decision at Step Two of the sequential evaluation process (see 20 C.F.R. §§404.1520(a), 416.920(a)), that he does not have a severe impairment. 2 1 Plaintiff has medically determinable impairments of insulin dependent 2 diabetes 3 hypercholesterolemia; 4 depressed. (AR 14.) 5 have any severe impairments. (AR 15.) mellitus with sometimes bilateral poor renal control; cysts; and hypertension; adjust order, The ALJ found, however, that Plaintiff does not 6 This decision reflects the ALJ s thorough consideration of the 7 evidence and resolution of any conflicts in the medical testimony. 8 See Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). 9 each of the impairments identified by the ALJ at Step Two of the evaluation process, but found to be not Indeed, 10 sequential severe, is 11 discussed exhaustively in the decision, with references to the medical 12 evidence. Indeed, Plaintiff had claimed additional impairments at the 13 administrative level, which are also discussed by the ALJ. 14 claimed a back impairment; however, as the ALJ noted, consultative 15 clinical examinations ( CE ), including examinations of Plaintiff s 16 back, had been unremarkable. (See AR at 14, citing exhibits.) 17 neurological deficit had been noted during these examinations. (Id.) 18 Next, the ALJ noted that Plaintiff had alleged symptoms in his lower 19 extremities, such as pain, swelling, and numbness, but the ALJ noted 20 that a bilateral arterial duplex examination of his lower extremities 21 with color Doppler imaging performed in October 2006 was negative, and 22 that the evidence does not substantiate any diabetic neuropathy or any 23 end-organ damage related to diabetes mellitus. (See AR at 14, citing 24 exhibits.) Thus, he No 25 Plaintiff had claimed that he had bad or blurry vision not 26 treatable with corrective lenses, but the ALJ noted that there was no 27 substantiation by any diagnostic or reliable clinical findings, and 28 that Plaintiff reports that he continues to have a valid driver s 3 1 license. (AR 15, citing exhibits.) 2 lupus was, as the ALJ again noted, completely unsupported by any 3 diagnostic or reliable clinical findings which would substantiate such 4 a condition as medically determinable. 5 rheumatologist, and takes no medications for lupus. (AR 15, citing 6 exhibits.) At this point, it should be noted that Plaintiff s lack of 7 treatment, 8 conditions, is highly relevant, since Plaintiff did have medical 9 insurance and access to health care, as the ALJ noted. (AR 18, 62, 10 or at best, very Plaintiff s allegation that had Plaintiff has not seen a conservative treatment for certain 135, 240-257, 295-320, 346-378, 406-423.) 11 Plaintiff s allegation that he has heart disease and has had a 12 heart attack is totally contradicted, as the ALJ noted, by the fact 13 that a workup of Plaintiff s heart in July 2006 was unremarkable. 14 Plaintiff testified he has rarely seen a cardiologist and only takes 15 aspirin, assertedly for a heart condition. 16 studies or any reliable clinical findings which would substantiate 17 Plaintiff s 18 exhibits.) allegations in this regard. There are no diagnostic (See AR at 15, citing 19 The ALJ noted that there is no evidence in the record of any 20 neurological deficits, and that the Plaintiff s claim file has no 21 evidence 22 determinable impairment. (Id., citing exhibits.) which would substantiate headaches as a medically 23 With regard to mental issues, the ALJ noted that at one point, 24 Plaintiff alleged that he heard voices in his head at night, but 25 denied having hallucinations at a CE in 2006, and never reported such 26 symptoms to Pasadena Mental Health Center, where he was at one time 27 being treated. 28 ALJ noted that Plaintiff again reported hearing voices, but the claim At a psychological CE conducted in October 2007, the 4 1 file has no evidence from any contemporaneous treating source which 2 would substantiate such allegations. (Id., citing exhibits.) 3 Thus, the presence of impairments was largely substantiated by 4 Plaintiff s own descriptions and complaints. For that reason, the ALJ 5 undertook a careful examination of Plaintiff s credibility, finding it 6 severely lacking. 7 8 9 A brief discussion of applicable law as to credibility assessment is merited. The weight to be given to a claimant s statements concerning 10 symptomology 11 applicable regulations and case law. 20 C.F.R. §404.1529 is entitled, 12 How we evaluate symptoms, including pain. 13 regulation provides that, In determining whether you are disabled, we 14 consider all your symptoms, including pain, and the extent to which 15 your symptoms can reasonably be accepted as consistent with the 16 objective medical evidence and other evidence. 17 describes objective medical evidence as consisting of medical signs 18 and laboratory findings. 19 contained 20 404.1513(b)(1), (4), and (5), and (d). in are 20 governed C.F.R. by clear procedural requirements and In subsection a , the The regulation The definition of other evidence is §§404.1512(b)(2) through (6) and As stated in §404.1529(a), 21 These include statements or reports from you, your 22 treating or non-treating source, and others about your 23 medical history, diagnosis, prescribed treatment, daily 24 activities, efforts to work, and any evidence showing how 25 your impairment(s) and any related symptoms affect your 26 ability to work. 27 28 The regulation also indicates that a claimant s statements about 5 1 symptoms, including pain, will be considered, but, importantly, notes 2 that, 3 However, statements about your pain or other symptoms 4 will not alone establish that you are disabled; there must 5 be medical signs and laboratory findings which show that you 6 have a medical impairment(s) which could reasonably be 7 expected to produce the pain or other symptoms alleged and 8 which, when considered with all of the other evidence ... 9 would lead to a conclusion that you are disabled. 10 11 In 20 C.F.R. §404.1529(c)(3), it is specifically provided that 12 the claimant s statements about symptoms will be considered. Relevant 13 factors to be considered are enumerated, and include the following: 14 daily activities [referred to in this Memorandum Opinion as activities 15 of daily living, or ADL], location, duration, frequency and intensity 16 of pain or other symptoms; precipitating and aggravating factors; 17 type, dosage, effectiveness and side effects of any medications; 18 treatment other than medication which has been received; and any other 19 measures used to relieve pain and other symptoms. 20 Evaluation of symptoms is also guided by Social Security Ruling 21 ( SSR ) 96-7p. In what is often described as a two-step analysis, the 22 first 23 underlying medically determinable physical or mental impairment which 24 could reasonably be expected to produce the individual s pain or other 25 symptoms. 26 which these symptoms limit an individual s ability to do basic work 27 activities. 28 1991)(en banc). step consists of a determination of whether there is an The second step involves an evaluation of the extent to See also Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. Where the first step has been met, it is the 6 1 Commissioner s burden to articulate clear and convincing reasons to 2 reject the claimant s testimony regarding subjective symptoms. 3 Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)(citing Lester v. 4 Chater, 81 F.3d 821, 834 (9th Cir. 1995)). Otherwise, the Commissioner 5 must articulate at least specific and legitimate reasons to reject 6 subjective symptom testimony. 7 If there is affirmative See See Bunnell, 947 F.2d at 347. demonstrating that a claimant is 8 malingering, then the Commissioner s reasons for rejecting claimant s 9 testimony need not be clear and convincing. 10 Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). 11 Indeed, in this case, the ALJ noted substantial evidence of 12 malingering 13 psychological CE conducted by Dr. Donahue, she found that Plaintiff 14 was exceptionally disingenuous and putting forth a very poor effort. 15 (AR 16 administered did suggest malingering. (AR 19, 326.) 20, based 323-331.) on the As medical Dr. records. Donahue noted, For example, testing which in a she 17 In making the credibility determination, the ALJ noted many 18 inconsistencies in Plaintiff s testimony. First, he indicated that he 19 did not consider an Exertional Daily Activities Questionnaire dated 20 December 14, 2003, because it was part of the claim file from 21 Plaintiff s prior application, which was not being reopened. (AR 16.) 22 The ALJ noted Plaintiff s allegations of his inability to work due to 23 burning in his feet, pain in his toes, blurry vision, headaches, and 24 his entire body hurting all the time. 25 Adult, in which Plaintiff alleges that he was awake for most of the 26 night because he could not sleep, had stabbing pains in his feet, 27 could not perform house or yard work due to lack of energy, that his 28 body always hurt, that sunlight made him dizzy and nauseous, that he 7 He noted a Function Report - 1 had difficulty lifting, squatting, bending, standing, reaching, 2 walking, kneeling, talking, stair climbing, memory, completing tasks, 3 concentration, following instructions, and getting along with others, 4 and that his ability to ambulate was just in his house, such as from 5 his bedroom to his bathroom, and that he had a short attention span. 6 (AR 15, citing exhibit.) 7 inability due to exhaustion resulting from uncontrolled diabetes 8 mellitus and lupus in addition to other factors. (Id.) 9 Plaintiff s claims that his condition had deteriorated. (Id.) He noted Plaintiff s allegations of his He noted He 10 noted Plaintiff s claims that he had to take two to three naps a day, 11 and 12 Plaintiff s continuing complaints of pain and burning in his legs and 13 feet, that his wrists and ankles were more swollen, that his diabetes 14 mellitus was out of control, that he began experiencing shortness of 15 breath, fatigue, and chest pain, and that simple ADL such as showering 16 and getting dressed had become very difficult because of constant pain 17 and fatigue. Plaintiff asserted his mother did practically everything 18 for him with regard to ADL and he stayed in bed most of the day 19 because of pain and could not be on his feet for more than five 20 minutes because they would start to burn. (Id., citing exhibits.) The 21 ALJ noted Plaintiff s testimony at the hearing that he was unable to 22 work due to extreme fatigue or feeling tired all the time, pain in his 23 ankles and toes, swollen feet, low back pain, inability to sleep at 24 night, and difficulty concentrating. (Id.) was simply exhausted. (AR 17, citing exhibit.) He noted 25 The ALJ found, at the First Step of the Bunnell analysis, that 26 Plaintiff s medically determinable impairments could reasonably be 27 expected to produce some of the alleged symptoms. 28 however, he found that Plaintiff is not credible with regard to the 8 At Step Two, 1 intensity, persistence, and limiting effects of these symptoms. 2 cited numerous reasons. 3 evidence does not substantiate disability. 4 ALJ s exhaustive discussion of the medical record, he noted that many 5 of the subjective complaints asserted by Plaintiff are simply related 6 to medically determinable impairments. This includes his assertion of 7 a back impairment or cardiovascular impairment. 8 Plaintiff had an essentially normal examination with the CE internist 9 in May of 2006, Dr. Siciarz-Lambert. (AR 17, citing exhibit.) noted also He First, he noted that the objective medical 11 internist/rheumatologist Dr. Srinivasan in late September 2007. (AR 12 18, citing exhibit.) 13 concluding 14 findings 15 hypertension, hypercholesterolemia, or diabetes mellitus. Plaintiff s 16 renal cysts are being treating conservatively. (Id.) 17 that as to Plaintiff s primary treating physician, Dr. Galfaian, the 18 progress notes are cursory and contain very few clinical details as 19 would be expected for an individual of Plaintiff s young age with such 20 alleged extreme symptoms and limitations. (Id., citing exhibits.) which CE examination The ALJ it unremarkable He noted that 10 that an Thus, as reflected in the from The ALJ reviewed Dr. Srinivasan s report, contains would no diagnostic substantiate any or reliable end-organ damage clinical due to The ALJ noted 21 Concerning Plaintiff s asserted mental impairment, the ALJ noted 22 a mental status consulting psychiatric examination, which did not 23 substantiate any severe mental impairment. (Id., citing exhibit.) 24 Similarly, the ALJ noted that Dr. Donahue s psychological CE does not 25 substantiate a severe mental impairment due to poor effort and 26 malingering. (Id., citing exhibit.) 27 The ALJ further cited the fact that while Plaintiff reported that 28 he needed a cane to walk outside his home, he did not appear at two 9 1 recent consultative examinations with a cane. (AR 18-19, 325, 332- 2 333.) 3 a cane. (AR 19.) There was no record of any support for use or prescription of 4 In support of his MSJ, Plaintiff has submitted Exhibits A and B. 5 This is considered new evidence, but is only considered material if it 6 bears directly and substantially on the decision in this case. 7 Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985). 8 determines that while the evidence is new, it is at best cumulative, 9 and does not change the outcome of this case. See The Court 10 Not covered by the Commissioner in his Opposition is the ALJ s 11 discussion of Plaintiff s claim of alleged side effects from his 12 medications, which Plaintiff made both in written submissions and at 13 the hearing. (AR 19, citing exhibits.) 14 records from treating sources do not substantiate such allegations. 15 While side effects of medications are a specific and relevant factor 16 in credibility assessment (see 20 C.F.R. §404.1529(c)(3)(iv)), the ALJ 17 noted 18 existence of side effects of medication, especially including any 19 complaints Plaintiff made to treating or examining sources regarding 20 such matters. 21 that there is simply no medical The ALJ noted that medical evidence to support the The ALJ also considered the third party report from Plaintiff s 22 mother. (AR 20, citing exhibit.) Plaintiff s mother indicated that 23 Plaintiff spent an average day at the time reading, listening to 24 music, and sitting on the patio outside his room. 25 of his son, made lunches, did small amounts of laundry, and helped his 26 son with some of his homework. 27 personal care, was able to handle his own money, and, according to his 28 mother, did not need to use any assistive devices, such as a cane. (AR He helped take care Plaintiff had no problem with his own 10 1 20-21, citing exhibits.) 2 relied upon by the ALJ, contradicts Plaintiff s extreme claims of 3 limitations with regard to these very matters. 4 Certainly, this third party report, also Thus, the Court finds that the credibility assessment made by the 5 ALJ in this case was textbook correct. 6 Plaintiff simply recites what he believes to be the nature and extent 7 of 8 recitation of evidence, or the findings made by the ALJ concerning 9 that evidence, in his Decision. 10 his severe impairments, but does not Moreover, in his MSJ, controvert any of the Based upon the foregoing, the Court concludes that the ALJ did 11 not 12 Consequently, the decision of the ALJ will be affirmed. The Complaint 13 will be dismissed with prejudice. 14 err in finding that Plaintiff has no severe impairments. IT IS SO ORDERED. 15 16 17 DATED: September 30, 2009 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 11
]]>
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.
