Dallas D. Burhus v. Michael J. Astrue, No. 2:2009cv02550 - Document 19 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton. The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. (rp)
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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 DALLAS D. BURHUS, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 09-02550-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 ) properly 1 developed the record; 2 2. Whether 3 ALJ properly considered the lay witness testimony; and 4 3. Whether the ALJ considered Plaintiff s testimony and made 5 6 the proper credibility findings. (JS at 2.) 7 8 9 10 This Memorandum Opinion will constitute the Court s findings of fact and conclusions of law. After reviewing the matter, the Court concludes that the decision of the Commissioner must be affirmed. 11 12 I 13 THE ALJ DID NOT FAIL TO PROPERLY DEVELOP THE RECORD 14 On May 12, 2008, Plaintiff had a consultative psychological 15 evaluation ( CE ) from Dr. Sherrill. (AR 426-432.) 16 for 17 accompanied 18 Plaintiff had suffered an accident resulting in a six-month hospital 19 stay. (AR 428.) 20 indicating a six-month hospital stay because of an accident. (AR 431.) 21 Plaintiff, on that basis, argues that the ALJ had an obligation to 22 develop the record. his appointment by his in an cousin. Plaintiff arrived apparently intoxicated Plaintiff s cousin condition, indicated that Dr. Sherrill noted that there were no records 23 First, the Court notes that the absence of records of any 24 accident, if such records exist, did not impair Dr. Sherrill s ability 25 to render a diagnostic impression and a functional assessment. (AR 26 431-432.) 27 Plaintiff and his counsel were given numerous and ample opportunities 28 to provide relevant evidence to support the claim of a disabling In any event, the Commissioner correctly notes that 2 1 impairment. 2 portion of the JS, and include the fact that Plaintiff never mentioned 3 any such treatment for an accident in any of the administrative 4 records (AR 112-113, 131, 137-138); that Plaintiff was advised to 5 obtain and submit to the ALJ updated medical evidence prior to the 6 hearing (AR 72); that a compact disk containing all the evidence was 7 sent to Plaintiff prior to the hearing, on January 10, 2008 (AR 79); 8 that Plaintiff got another notice from the agency on January 24, 2008 9 reminding him that he could submit additional medical evidence before 10 the hearing (AR 23); that, at the hearing, the ALJ asked Plaintiff if 11 he had reviewed the record and whether he had any objection to it (AR 12 31-32), and Plaintiff did not object (AR 32); that the ALJ asked 13 Plaintiff if there were any other documents or if the record was 14 complete, and Plaintiff s attorney indicated that it was complete (AR 15 32); 16 additional evidence to the Appeals Council, but failed to do so (AR 4, 17 9). Indeed, Plaintiff has the burden of producing such evidence. See 18 Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). 19 and These opportunities are summarized in the Commissioner s finally, that Plaintiff had an opportunity to submit Further, Plaintiff was sent out for both a psychological CE and 20 a physical CE. Following those examinations, functional capacity 21 assessments were made based upon the clinical examinations. Plaintiff 22 has not explained how, if any additional historic records of treatment 23 existed, they would have impacted the actual assessments made during 24 these examinations. 25 In sum, there is no ambiguous or incomplete evidence which has 26 been demonstrated to exist in this record which would have any impact 27 upon the disability assessment. 28 obligation to develop the record. Only in such situations is there an See Mayes v. Massanari, 276 F.3d 3 1 453, 459-60 (9th Cir. 2001). 2 with regard to the first issue. Consequently, the Court finds no error 3 4 II 5 THE ALJ DID NOT FAIL TO PROPERLY CONSIDER LAY WITNESS TESTIMONY 6 At the hearing, Plaintiff s cousin, Jason Zink, testified on 7 Plaintiff s 8 Plaintiff falls down; that Plaintiff has had leg problems as long as 9 he can remember; that Plaintiff has to use a cane; that Plaintiff 10 doesn t sleep because he is always in pain; that Plaintiff s doctor 11 rendered an opinion that Plaintiff is unable to take pain medication 12 due to his brain damage; that Plaintiff is unable to write more than 13 his name; that Plaintiff falls down even with a cane, and that this is 14 not due to intoxication. (Id.) 15 16 behalf, and during that testimony, recounted that Plaintiff correctly points out that the ALJ failed to mention this lay witness testimony. 17 The Commissioner agrees that Plaintiff s summary of Jason Zink s 18 testimony is correct, and also agrees that it was not mentioned by the 19 ALJ. 20 rejected only if reasons germane to such witness s testimony are 21 articulated. 22 v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Indeed, relevant and pertinent lay witness testimony can be See 20 C.F.R. §§404.1513(e)(2); 416.913(e)(2); Dodrill 23 Plaintiff also notes the holding of Stout v. Commissioner, 454 24 F.3d 1050, 1056 (9th Cir. 2006), which confirms that harmless error 25 analysis applies in Social Security cases. Thus, it would be harmless 26 error in this case for the ALJ to disregard Mr. Zink s testimony if it 27 can be confidently concluded that no reasonable ALJ, when fully 28 crediting the testimony, would have reached a different determination. 4 1 Indeed, the Court views this as such a case. 2 First, Mr. Zink s testimony fairly well mirrored that of 3 Plaintiff himself at the hearing. For example, Plaintiff testified 4 that he does not take pain medication because his doctor believes he 5 will bleed in his brain. (AR 37-38.) 6 because of his pain. (AR 38.) 7 just worn out. (AR 37.) 8 He does, however, have the ability to read and write. (AR 34.) He testified he hardly sleeps He can t walk, because his legs are He needs a cane because he can t walk. (Id.) 9 Thus, in essence, Mr. Zink added nothing to Plaintiff s own 10 testimony, and in view of the fact that Plaintiff s credibility was 11 depreciated by the ALJ (see discussion, infra, concerning Issue 3), 12 this is particularly significant. 13 evidence supporting several of Mr. Zink s assertions, such as that 14 Plaintiff s doctor told him he could not take pain medication due to 15 the risk of a brain bleed. 16 instances prescribed pain medication. (AR 46, 114, 166, 174, 218, 224, 17 240, 249, 253, 301, 425.) 18 fell 19 conclusion is not well substantiated by the record, since alcohol is 20 and has been a substantial part of Plaintiff s problems. (AR 46, 186, 21 209, 439.) down even absent his Moreover, there is no medical Further, Plaintiff was on numerous While Mr. Zink testified that Plaintiff alcohol abuse, it appears that this 22 It is also the case that Mr. Zink accompanied Plaintiff to both 23 of his consultative examinations, and provided information which was 24 considered by the consultative examiners. (AR 426-32, 437-41.) 25 such, since the ALJ considered the opinions of the consultative 26 examiners, it was not further necessary to incorporate into his 27 decision 28 examiners by Plaintiff s cousin. the specific information 5 provided to the As consultative 1 Based on the foregoing, the Court finds that any failure to 2 specifically discuss the testimony of Plaintiff s cousin, Jason Zink, 3 is harmless error, and relief is not merited on Issue No. 2. 4 5 III 6 THE ALJ PROPERLY CONSIDERED PLAINTIFF S CREDIBILITY 7 In his third issue, Plaintiff makes the argument that the ALJ 8 erred by failing to make any credibility findings ( The ALJ did not 9 discuss any of the Plaintiff s statements or testimony from the 10 11 hearing. ). (JS 9.) A review of the ALJ s decision indicates that numerous 12 evidentiary bases were cited to depreciate Plaintiff s credibility. 13 First, the only severe impairment found by the ALJ was that Plaintiff 14 had suffered from basal cell carcinoma of the right lower eyelid. 15 There is no objective medical evidence to support Plaintiff s other 16 complaints, including leg and stomach impairments, which clearly are 17 not caused by basal cell carcinoma. (AR 14.) 18 evidence of malingering, based on the conclusions reached by both 19 consultative examiners. (AR 426, 429-32, 437, 442.) 20 substantial 21 credibility assessment. 22 (9th Cir. 2003). and adequate independent reason Next, the ALJ found to Malingering is a make a negative See Benton v. Barnhart, 331 F.3d 1030, 1040 23 The ALJ cited additional reasons for discrediting Plaintiff. 24 There was no medical evidence in support of his complaints of leg pain 25 and severe discomfort. (AR 14.) 26 Plaintiff s claim that he would collapse if he stood up from his 27 wheelchair was not substantiated. (AR 437.) 28 unable to walk, but allowed to stand on his own, he could stand up, At the consultative examination, 6 Plaintiff insisted he is 1 albeit with a trembling leg and slightly stooped over. (AR 441.) When 2 the consultative examiner asked him to remove his boots, Plaintiff 3 screamed in pain when his cousin attempted to do this, but then 4 suddenly rose from the examination table, sat in a chair, bent his 5 left knee, and removed his boots. (AR 441.) 6 relevant factors in a credibility assessment. Clearly, these are all 7 Plaintiff claimed he could not take pain medication but was 8 repeatedly prescribed pain medication. (AR 46, 114, 166, 174, 218, 9 224, 240, 249, 253, 301, 425.) 10 Both consultative examiners determined that Plaintiff did not 11 give maximum or consistent effort in the examinations. 12 physical medicine CE, Plaintiff was uncooperative and disruptive. (AR 13 14, 14 psychological CE, Plaintiff was intoxicated to the extent that he 15 could hardly participate in the examination. (AR 14, 426-32.) 437, 16 441-42.) As the Court previously During the noted, during his Despite Plaintiff s severe symptom complaints, he failed to 17 report these to his treating physicians. (AR 14.) There is no 18 evidence that he sought medical treatment for his assertedly agonizing 19 pain. 20 to relieve pain and in moderate amounts, the record indicates a 30- 21 year history of alcohol abuse and frequent alcohol intoxication. (AR 22 14, 174, 209, 225, 307.) Finally, although Plaintiff claimed that he drank alcohol only 23 All in all, even if Plaintiff argued that the reasons cited by 24 the ALJ were insufficient to substantiate an adverse credibility 25 finding, that argument would have no merit. 26 error with regard to the ALJ s credibility determination. 27 // 28 // 7 Thus, the Court finds no 1 2 3 The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 4 5 6 DATED: January 21, 2010 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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