Michael Anthony Mahone v. Michael J. Astrue, No. 2:2009cv05614 - Document 17 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION by Magistrate Judge Jacqueline Chooljian, The decision of the Commissioner of Social Security is AFFIRMED. (SEE ORDER FOR FURTHER DETAILS) (lmh)
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Michael Anthony Mahone v. Michael J. Astrue Doc. 17 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MICHAEL MAHONE, 12 Plaintiff, 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. _________________________ I. ) Case No. CV 09-5614 JC ) ) ) MEMORANDUM OPINION ) ) ) ) ) ) ) ) ) SUMMARY On August 4, 2009, plaintiff Michael Mahone ( plaintiff ) filed a Complaint seeking review of the Commissioner of Social Security s denial of plaintiff s application for benefits. The parties have consented to proceed before a United States Magistrate Judge. This matter is before the Court on the parties cross motions for summary judgment, respectively ( Plaintiff s Motion ) and ( Defendant s Motion ). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; August 11, 2009 Case Management Order ¶ 5. /// 1 Dockets.Justia.com 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is AFFIRMED. The findings of the Administrative Law Judge 3 ( ALJ ) are supported by substantial evidence and are free from material error.1 4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 5 DECISION 6 On May 8, 2006, plaintiff filed an application for Supplemental Security 7 Income benefits. (Administrative Record ( AR ) 101-04). Plaintiff asserted that 8 he became disabled on July 1, 2005, due to heart disease. (AR 113). The ALJ 9 examined the medical record and heard testimony from plaintiff, who was 10 represented by counsel, on November 13, 2007. (AR 30-58). 11 On February 14, 2008, the ALJ determined that plaintiff was not disabled 12 through the date of the decision. (AR 21-29). Specifically, the ALJ found: 13 (1) plaintiff suffered from the severe impairment of coronary artery disease with a 14 history of coronary bypass involving four vessels (AR 24); (2) plaintiff s 15 impairments, considered singly or in combination, did not meet or medically equal 16 one of the listed impairments (AR 27); (3) plaintiff retained the residual functional 17 capacity to perform the full range of light work (AR 27); (4) plaintiff could not 18 perform his past relevant work (AR 28); (5) there are jobs that exist in significant 19 numbers in the national economy that plaintiff could perform (AR 28); and 20 (6) plaintiff s allegations regarding his limitations were not fully credible. (AR 21 27-28). 22 The Appeals Council denied plaintiff s application for review. (AR 4-6). 23 /// 24 /// 25 26 1 The harmless error rule applies to the review of administrative decisions regarding 27 disability. See Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1196 28 (9th Cir. 2004) (applying harmless error standard); see also Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054-56 (9th Cir. 2006) (discussing contours of application of harmless error standard in social security cases). 2 1 III. APPLICABLE LEGAL STANDARDS 2 A. 3 To qualify for disability benefits, a claimant must show that he is unable to Sequential Evaluation Process 4 engage in any substantial gainful activity by reason of a medically determinable 5 physical or mental impairment which can be expected to result in death or which 6 has lasted or can be expected to last for a continuous period of at least twelve 7 months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. 8 § 423(d)(1)(A)). The impairment must render the claimant incapable of 9 performing the work he previously performed and incapable of performing any 10 other substantial gainful employment that exists in the national economy. Tackett 11 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 12 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 13 sequential evaluation process: 14 (1) 15 16 Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. (2) Is the claimant s alleged impairment sufficiently severe to limit 17 his ability to work? If not, the claimant is not disabled. If so, 18 proceed to step three. 19 (3) Does the claimant s impairment, or combination of 20 impairments, meet or equal an impairment listed in 20 C.F.R. 21 Part 404, Subpart P, Appendix 1? If so, the claimant is 22 disabled. If not, proceed to step four. 23 (4) Does the claimant possess the residual functional capacity to 24 perform his past relevant work? If so, the claimant is not 25 disabled. If not, proceed to step five. 26 (5) Does the claimant s residual functional capacity, when 27 considered with the claimant s age, education, and work 28 experience, allow him to adjust to other work that exists in 3 1 significant numbers in the national economy? If so, the 2 claimant is not disabled. If not, the claimant is disabled. 3 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 4 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920). 5 B. 6 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 7 benefits only if it is not supported by substantial evidence or if it is based on legal 8 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 9 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 10 (9th Cir. 1995)). Substantial evidence is such relevant evidence as a reasonable 11 mind might accept as adequate to support a conclusion. Richardson v. Perales, 12 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 13 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 14 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 15 To determine whether substantial evidence supports a finding, a court must 16 consider the record as a whole, weighing both evidence that supports and 17 evidence that detracts from the [Commissioner s] conclusion. Aukland v. 18 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 19 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 20 or reversing the ALJ s conclusion, a court may not substitute its judgment for that 21 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 22 IV. DISCUSSION 23 Plaintiff contends that the ALJ erred by improperly evaluating and 24 discounting his credibility. (Plaintiff s Motion at 4-11). The Court disagrees. 25 To determine whether a claimant's testimony regarding subjective pain or 26 symptoms is credible, an ALJ must engage in a two-step analysis. Lingenfelter v. 27 Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, the ALJ must determine 28 whether the claimant has presented objective medical evidence of an underlying 4 1 impairment which could reasonably be expected to produce the pain or other 2 symptoms alleged. Id. (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 3 1991) (en banc)). 4 Second, if the claimant meets this first test, and there is no evidence of 5 malingering, the ALJ can reject the claimant s testimony about the severity of 6 [his] symptoms only by offering specific, clear and convincing reasons for doing 7 so. Lingenfelter, 504 F.3d at 1036 (citations omitted). In making a credibility 8 determination, the ALJ must specifically identify what testimony is credible and 9 what testimony undermines the claimant's complaints. Greger v. Barnhart, 464 10 F.3d 968, 972 (9th Cir. 2006) (citation omitted). The ALJ must cite the reasons 11 why the claimant's testimony is unpersuasive. Orn v. Astrue, 495 F.3d 625, 635 12 (9th Cir. 2007) (citation and quotation marks omitted). In weighing credibility, 13 the ALJ may consider factors including: the nature, location, onset, duration, 14 frequency, radiation, and intensity of any pain; precipitating and aggravating 15 factors (e.g., movement, activity, environmental conditions); type, dosage, 16 effectiveness, and adverse side effects of any pain medication; treatment, other 17 than medication, for relief of pain; functional restrictions; the claimant s daily 18 activities; and ordinary techniques of credibility evaluation. Bunnell, 947 F.2d 19 at 346 (citing Social Security Ruling ( SSR ) 88-132; quotation marks omitted). 20 The ALJ may consider (a) inconsistencies or discrepancies in a claimant s 21 statements; (b) inconsistencies between a claimant s statements and activities; 22 (c) exaggerated complaints; and (d) an unexplained failure to seek treatment. 23 Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). If properly supported, 24 /// 25 26 2 Social Security rulings are binding on the Administration. See Terry v. Sullivan, 903 27 F.2d 1273, 1275 n.1 (9th Cir. 1990). Such rulings reflect the official interpretation of the Social 28 Security Administration and are entitled to some deference as long as they are consistent with the Social Security Act and regulations. Massachi v. Astrue, 486 F.3d 1149, 1152 n.6 (9th Cir. 2007) (citing SSR 00-4p). 5 1 the ALJ s credibility determination is entitled to great deference. See Green v. 2 Heckler, 803 F.2d 528, 532 (9th Cir. 1986). 3 In this case, the ALJ found that plaintiff s impairment of heart disease 4 provides some exertional limitations, but the ALJ discount[ed] and [gave] no 5 weight to the testimony of the claimant because [he found] him not fully credible. 6 (AR 26-27). The ALJ provided several reasons for discounting plaintiff s 7 credibility. First, the ALJ found that plaintiff s allegations were not supported by 8 the credible medical evidence. (AR 27). Although lack of objective medical 9 evidence supporting the degree of limitation cannot form the sole basis for 10 discounting subjective symptom testimony, it is a factor that an ALJ may 11 consider in assessing credibility. Burch, 400 F.3d at 681. Here, the ALJ reviewed 12 the medical record and noted that the medical sources concurred that plaintiff had 13 no significant residual restrictions or limitations from the heart attack and surgery 14 and that he remains capable of performing light work activity. (AR 28). Indeed, 15 the consultative examining physician found that plaintiff could engage in medium 16 work. (AR 27, 163). The examining psychiatrist found that there was no 17 evidence of cognitive deficits, perceptual disturbances or delusional disorders 18 and opined that plaintiff would be able to tolerate the stress inherent in the work 19 environment, maintain regular attendance[], and work without supervision. (AR 20 25, 177). The ALJ adopted the testifying medical expert s opinion that plaintiff 21 should be restricted to light work based on his slightly reduced ejection fraction. 22 (AR 27, 51). The Court s review of the record does not reveal any medical 23 opinions suggesting that plaintiff s functional capacity was more limited. The 24 ALJ properly considered the lack of supporting medical evidence in assessing 25 plaintiff s credibility. 26 The ALJ also found that plaintiff is capable of performing a number of 27 activities of daily living and is able to care for his personal hygiene. (AR 28). 28 Although the ALJ did not recount with any particularity plaintiff s activities of 6 1 daily living, plaintiff stated in an Exertional Daily Activities Questionnaire that 2 he walks four miles and works out with a trainer on an average day and that he 3 performs household chores such as vacuuming, washing dishes, and other normal 4 things to keep [the] house clean. (AR 141-42). In May 2006 a physical therapist 5 stated that plaintiff was in excellent condition and a very high achiever, and set 6 as plaintiff s goal the ability to tolerate 3 sets of 12 on all resistance exercises . . . 7 and 4 miles (16 laps) on treadmill in 50 [minutes] by the following month. (AR 8 336-37). The ALJ properly discounted plaintiff s credibility on the basis that his 9 daily activities were inconsistent with his alleged level of disability. See Batson v. 10 Commissioner of Social Security Administration, 359 F.3d 1190, 1196 (9th Cir. 11 2004) (ALJ properly concluded that daily activities of claimant who tends to 12 animals, walks outdoors, goes out for coffee, and visits with neighbors 13 contradicted testimony of disabling symptoms). 14 In further support of his credibility determination, the ALJ stated that 15 plaintiff is an admitted drug abuser. (AR 28). Although plaintiff testified at 16 the hearing that his last use of cocaine and marijuana was in June 2005, the ALJ 17 concluded that [t]he evidence is unclear as to whether the claimant s drug abuse 18 is in remission or not. (AR 27 & n.4, 45). Plaintiff was admitted to the hospital 19 and diagnosed with polysubstance abuse including marijuana and cocaine in 20 June 2007. (AR 25, 231). Plaintiff stated to a psychologist that he had used 21 marijuana that month, and he tested positive for cocaine and cannabis several 22 times in 2007. (AR 227-29, 255). The ALJ also noted that plaintiff was 23 hospitalized in March 2006 for substance abuse. (AR 25). There, he stated he had 24 used cocaine in February 2006. (AR 365). The ALJ did not err in finding that the 25 inconsistencies between plaintiff s testimony and the evidence regarding 26 plaintiff s drug use detracted from his credibility. See Thomas, 278 F.3d at 959 27 (upholding adverse credibility determination where claimant had present[ed] 28 conflicting information about her drug and alcohol use ). 7 1 The Court does not specifically address the other reasons the ALJ provided 2 for discounting plaintiff s credibility, but it has determined that they do not detract 3 from the ALJ s ultimate credibility determination. See Carmickle v. 4 Commissioner of the Social Security Administration, 533 F.3d 1155, 1162 (9th 5 Cir. 2008). Although the ALJ could have more fully elaborated his reasons for 6 discounting plaintiff s credibility, they are sufficiently specific to allow [the 7 Court] to conclude the [ALJ] rejected [plaintiff s] testimony on permissible 8 grounds and did not arbitrarily discredit [his] testimony. See Bunnell, 947 F.2d 9 at 345-46 (citation and internal quotations omitted). The ALJ s credibility 10 determination is a reasonable interpretation and is supported by substantial 11 evidence; thus, it is not [the Court s] role to second-guess it. See Rollins v. 12 Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 13 V. CONCLUSION 14 For the foregoing reasons, the decision of the Commissioner of Social 15 Security is affirmed. 16 LET JUDGMENT BE ENTERED ACCORDINGLY. 17 DATED: August 2, 2010 18 19 20 _____________/s/____________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 8
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