Annette Jones v. Michael J. Astrue, No. 2:2010cv00168 - Document 21 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jay C. Gandhi. IT IS ORDERED THAT judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits. (bem)
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Annette Jones v. Michael J. Astrue Doc. 21 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ANNETTE JONES, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 16 17 Defendant. ) Case No. CV 10-0168 JCG ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 18 19 I. 20 INTRODUCTION AND SUMMARY 21 On January 19, 2010, plaintiff Annette Jones (“Plaintiff”) filed a complaint 22 against defendant Michael J. Astrue (“Defendant” or “Commissioner”), the 23 Commissioner of the Social Security Administration, seeking review of a denial of 24 supplemental security income benefits (“SSI”). [Docket No. 3.] On March 22, 2010, Defendant filed his answer, along with a certified copy of 25 26 the administrative record. [Docket Nos. 11, 12.] On April 14, 2010, this matter was transferred to the calendar of the 27 28 undersigned Magistrate Judge. [Docket No. 13.] Both Plaintiff and Defendant Dockets.Justia.com 1 subsequently consented to proceed for all purposes before the Magistrate Judge 2 pursuant to 28 U.S.C. § 636(c). [Docket Nos. 14, 15.] 3 Pursuant to a January 20, 2010 order regarding further proceedings, Plaintiff 4 submitted a brief in support of her complaint (“Plaintiff’s Brief”) on April 23, 2010. 5 [Docket No. 16.] On May 12, 2010, Defendant submitted his opposition brief 6 (“Defendant’s Brief”). [Docket No. 19.] On May 19, 2010, Plaintiff submitted her 7 reply (“Reply”). [Docket No. 20.] The Court deems the matter suitable for 8 adjudication without oral argument. 9 In sum, having carefully studied, inter alia, the parties’ written submissions 10 and the administrative record, the Court concludes that, as detailed below, there is 11 substantial evidence in the record, taken as a whole, to support the decision of the 12 Administrative Law Judge (“ALJ”). Thus, the Court affirms the Commissioner’s 13 decision denying benefits. 14 II. 15 PERTINENT FACTUAL AND PROCEDURAL BACKGROUND 16 Plaintiff, who was 44 years old on the date of her administrative hearing, has a 17 high school education and vocational training in cosmetology. (See Administrative 18 Record (“AR”) at 18, 143, 174-75.) Her past relevant work includes employment as 19 a hair stylist, in-home health aide, home companion, and a hand packager. (Id. at 14, 20 35-36.) 21 On September 22, 2006, Plaintiff protectively filed for SSI, alleging that she 22 has been disabled since June 1, 2002 due to arthritis and depression. (See AR at 8, 23 143, 165, 170.) Plaintiff’s application was denied initially and upon reconsideration, 24 after which she filed a timely request for a hearing. (Id. at 55, 56, 66, 72.) 25 On August 12, 2009, Plaintiff, represented by counsel, appeared and testified 26 at a hearing before an ALJ. (See AR at 18-38.) Elizabeth Cerezo-Donnelly, a 27 vocational expert (“VE”), also testified. (See id. at 8, 35-37.) 28 On September 15, 2009, the ALJ denied Plaintiff’s request for benefits. (AR 2 1 at 8-15.) Applying the five-step sequential evaluation process – which is discussed 2 below – the ALJ found, at step one, that Plaintiff has not engaged in substantial 3 gainful activity since her SSI application date.1/ (Id. at 10.) At step two, the ALJ found that Plaintiff suffers from a severe impairment 4 5 consisting of “facet arthropathy at L5-S1 of the lumbar spine.” (Id. at 11 (emphasis 6 omitted).) At step three, the ALJ determined that the evidence did not demonstrate that 7 8 Plaintiff’s impairment, either individually or in combination, met or medically 9 equaled the severity of any listing set forth in the Social Security regulations.2/ (AR 10 at 11.) The ALJ then assessed Plaintiff’s residual functional capacity3/ (“RFC”) and 11 12 determined that she can “lift and carry 50 pounds occasionally and 25 pounds 13 frequently, stand/walk 6 hours in an 8-hour workday, sit 6 hours in an 8-hour 14 workday, occasional stooping, bending and crouching, and avoidance of 15 concentrated exposure to extreme temperatures.” (AR at 11 (emphasis omitted).) The ALJ found, at step four, that Plaintiff retained the ability to perform her 16 17 18 19 20 21 22 23 24 1/ Plaintiff previously applied for SSI in 2004. (See AR at 8.) However, Plaintiff’s application was denied initially and upon reconsideration, and a request for review was denied by the Appeals Council on July 28, 2006. (Id.) Plaintiff did not appeal the denial by the Appeals Council. (Id.) At the August 12, 2009 hearing, Plaintiff’s counsel did not seek to reopen the prior application. (Id. at 22, 24.) Plaintiff also filed a prior application for SSI in 2003, which is not relevant to the instant action. (AR at 8.) 2/ See 20 C.F.R. pt. 404, subpt. P, app. 1. 3/ Residual functional capacity is what a claimant can still do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 26 n. 5 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant’s 27 residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 n. 2 (9th 28 Cir. 2007). 3 1 past relevant work as a hair stylist, home companion, hand packager, and in-home 2 health aide. (AR at 14-15.) Thus, the ALJ concluded that Plaintiff was not suffering 3 from a disability as defined by the Act. (Id. at 15.) 4 Plaintiff filed a timely request for review of the ALJ’s decision, which was 5 denied by the Appeals Council. (AR at 1-3, 4.) The ALJ’s decision stands as the 6 final decision of the Commissioner. 7 III. 8 APPLICABLE LEGAL STANDARDS 9 10 A. Five-Step Inquiry to Ascertain a Cognizable Disability A claimant must satisfy three fundamental elements to be eligible for 11 disability benefits: (1) a medically-determinable impairment; (2) the impairment 12 prevents the claimant from engaging in substantial gainful activity; and (3) the 13 impairment is expected to result in death or to last for a continuous period of at least 14 12 months. 42 U.S.C. § 423(d)(1)(A); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th 15 Cir. 1999). A well-established five-step sequential inquiry is utilized to assess 16 whether a particular claimant satisfies these three elements. The inquiry proceeds as 17 follows: 18 First, is the claimant engaging in substantial gainful activity? If so, the 19 claimant cannot be considered disabled. 20 Second, does the claimant suffer from a “severe” impairment, to wit, one 21 continuously lasting at least 12 months? If not, the claimant is not disabled. 22 Third, does the claimant’s impairment or combination of impairments meet or 23 equal an impairment specifically identified as a disability by the Commissioner 24 under 20 C.F.R. part 404, subpart P, appendix 1? If so, the claimant is automatically 25 determined to be disabled. 26 Fourth, is the claimant capable of performing his past work? If so, the 27 claimant is not disabled. 28 Fifth, does the claimant have the so-called “residual functional capacity” to 4 1 perform some other type of work? The critical question posed here is whether the 2 claimant can, in light of the impairment and his or her age, education and work 3 experience, adjust to another form of gainful employment? 4 If a claimant is found “disabled” or “not disabled” along any of these steps, 5 there is no need to complete the remaining inquiry. 20 C.F.R. §§ 404.1520(a)(4) & 6 416.920(a)(4); Tackett, 180 F.3d at 1098-99. 7 B. Standard of Review on Appeal 8 This Court is empowered to review decisions by the Commissioner to deny 9 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 10 Administration must be upheld if they are free of legal error and supported by 11 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001, as 12 amended Dec. 21, 2001). If the court, however, determines that the ALJ’s findings 13 are based on legal error or are not supported by substantial evidence in the record, 14 the court may reject the findings and set aside the decision to deny benefits. 15 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 16 242 F.3d 1144, 1147 (9th Cir. 2001). 17 “Substantial evidence is more than a mere scintilla, but less than a 18 preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such “relevant 19 evidence which a reasonable person might accept as adequate to support a 20 conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d 21 at 459. To determine whether substantial evidence supports the ALJ’s finding, the 22 reviewing court must review the administrative record as a whole, “weighing both 23 the evidence that supports and the evidence that detracts from the ALJ’s 24 conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be affirmed 25 simply by isolating a specific quantum of supporting evidence.’” Aukland, 257 F.3d 26 at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the 27 evidence can reasonably support either affirming or reversing the ALJ’s decision, 28 the reviewing court “‘may not substitute its judgment for that of the ALJ.’” Id. 5 1 (quoting Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). 2 IV. 3 ISSUES PRESENTED 4 Five disputed issues are presented for decision here: 5 1. whether the ALJ improperly evaluated Plaintiff’s treating physician’s 6 opinion regarding the side effects of prescribed medication, (see Pl.’s Br. at 2-3; 7 Reply at 1-2); 8 2. whether the ALJ properly considered Plaintiff’s testimony regarding 9 her medication’s side effects, (Pl.’s Br. at 3-5; Reply at 2-3); 10 3. whether the ALJ failed to properly evaluate the dosage and side effects 11 of Plaintiff’s medication, (Pl.’s Br. at 5-6); 12 4. whether the ALJ improperly discounted a lay witness’s statements, 13 (Pl.’s Br. at 8-9; Reply at 4); and 14 5. whether the hypothetical question presented to the VE by the ALJ was 15 inchoate. (Pl.’s Br. at 6-8; Reply at 3-4.) 16 The Court addresses each argument in turn. 17 V. 18 DISCUSSION AND ANALYSIS 19 A. Evaluation of the Medical Evidence 20 Plaintiff contends that the “ALJ erred in failing to consider the treating 21 physician’s opinion regarding medication side effects Plaintiff experienced.” (Pl.’s 22 Br. at 2.) In particular, Plaintiff argues that “the ALJ disregarded without 23 explanation the doctor’s opinion regarding the drowsiness side effect caused by the 24 prescribed Vicodin medication without providing specific and legitimate reasons, 25 supported by substantial evidence.” (Id. at 3.) The Court disagrees. 26 27 28 6 1 1. The ALJ Must Provide Specific and Legitimate Reasons 2 Supported by Substantial Evidence to Reject a Treating 3 Physician’s Opinion 4 In evaluating medical opinions, Ninth Circuit case law and Social Security 5 regulations “distinguish among the opinions of three types of physicians: (1) those 6 who treat the claimant (treating physicians); (2) those who examine but do not treat 7 the claimant (examining physicians); and (3) those who neither examine nor treat the 8 claimant (nonexamining physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 9 1995, as amended April 9, 1996); see also 20 C.F.R. §§ 404.1527(d) & 416.927(d) 10 (prescribing the respective weight to be given the opinion of treating sources and 11 examining sources). “As a general rule, more weight should be given to the opinion 12 of a treating source than to the opinion of doctors who do not treat the claimant.” 13 Lester, 81 F.3d at 830; accord Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 14 1036 (9th Cir. 2003). This is so because a treating physician “is employed to cure 15 and has a greater opportunity to know and observe the patient as an individual.” 16 Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987). 17 “The opinion of an examining physician is, in turn, entitled to greater weight 18 than the opinion of a nonexamining physician.” Lester, 81 F.3d at 830; see also 20 19 C.F.R. §§ 404.1527(d)(1)-(2) & 416.927(d)(1)-(2). If the opinion of an examining 20 physician is rejected in favor of the opinion of a nonexamining physician, the ALJ 21 may do so only by providing specific and legitimate reasons. Lester, 81 F.3d at 83022 31. The ALJ can meet the requisite specific and legitimate standard “by setting out a 23 detailed and thorough summary of the facts and conflicting clinical evidence, stating 24 his interpretation thereof, and making findings.” Magallanes v. Bowen, 881 F.2d 25 747, 751 (9th Cir. 1989) (internal quotation marks and citation omitted). 26 27 2. Medical Evidence Here, on December 11, 2006, Rajeswari Kumar, M.D. (“Dr. Kumar”) 28 performed a complete orthopedic evaluation of Plaintiff. (AR at 414-19.) Dr. 7 1 Kumar stated that Plaintiff has a “history of neck pain, mid back pain, lower back 2 pain, and bilateral upper extremity and lower extremity joint pains.” (Id. at 414.) 3 Dr. Kumar indicated that Plaintiff’s medications include “Motrin, Zantac, sleeping 4 medication, Fosamax, and Vicodin.” (Id. at 415.) 5 In making his evaluation, Dr. Kumar performed an independent physical 6 examination and reviewed x-rays of Plaintiff’s spine. (AR at 415, 418.) Dr. Kumar 7 found “no spinous process or paraspinal tenderness” in Plaintiff’s neck, but did find 8 “tenderness in the lumbar paraspinal region.” (Id. at 416.) Dr. Kumar determined 9 that Plaintiff “can lift and carry 50 pounds occasionally and 25 pounds frequently. 10 [Plaintiff] can do occasional bending and stooping activities. Standing and walking 11 is six hours per day with routine breaks. Sitting is eight hours per day with routine 12 breaks.” (Id. at 418.) 13 In 2007 and 2008, Natividad De Jesus, M.D. (“Dr. De Jesus”) treated Plaintiff 14 on approximately five separate occasions. (See AR at 454, 455, 471.) The results 15 were as follows: 16 On November 8, 2007, Dr. De Jesus indicated Plaintiff suffered from “severe 17 back pain” and “abdominal pain.” (AR at 454.) Dr. De Jesus diagnosed Plaintiff 18 with “acid reflux” and prescribed Prevacid. (Id.) An x-ray imaging report, dated 19 November 9, 2007 and requested by Dr. De Jesus, indicated “[m]ild scoliosis” and 20 “[n]o fractures or destructive lesions.” (Id. at 456.) 21 On November 19, 2007, about two weeks later, Dr. De Jesus found Plaintiff’s 22 neck was “non remarkable,” but reported Plaintiff’s stomach, legs and back “hurt.” 23 (AR at 454.) 24 On January 17, 2008, two months later, Dr. De Jesus noted Plaintiff suffered 25 from “nausea” and “abdominal pain.” (AR at 455.) 26 On February 11, 2008, Dr. De Jesus completed a “Medical Opinion Re: 27 Ability To Do Work-Related Activities” form. (See AR at 477-79.) In the form, Dr. 28 De Jesus opined that Plaintiff should be limited to lifting and carrying 20 pounds on 8 1 an occasional basis and 25 pounds on a frequent basis in an eight-hour work day. 2 (Id. at 477.) He also found that Plaintiff had the ability to stand and walk 3 approximately three hours and sit for approximately two hours in an eight-hour work 4 day. (Id.) Dr. De Jesus noted that Plaintiff would need to “lie down at unpredictable 5 intervals during a work shift” due to side effects from Vicodin, which causes 6 Plaintiff to be drowsy. (Id. at 478.) 7 On October 16, 2008, eight months later, Dr. De Jesus indicated Plaintiff 8 suffered from arthritis in her hands. (AR at 471.) 9 On November 12, 2008, Dr. De Jesus reported Plaintiff complained of nausea. 10 (AR at 471.) 11 12 3. The ALJ’s Analysis of Dr. De Jesus’ Opinion The ALJ rejected Dr. De Jesus’ opinion, finding that it was “not supported by 13 any objective findings and is not consistent with the medical evidence of record.” 14 The ALJ’s entire finding is quoted for the requisite context: 15 [Plaintiff] saw Dr. De Jesus for only several visits over a two 16 year period and x-rays of the lumbar spine in November 2007 17 showed only mild scoliosis with no other abnormalities. The left 18 hip x-rays were negative, as was the laboratory workup. The 19 lumbar spine x-rays taken at the orthopedic consultative 20 examination showed facet arthropathy at L5-S1, but the disc 21 spaces were intact and the examination showed only limited 22 range of motion of the lumbar spine with no signs of lumbar 23 radiculopathy. There is no evidence of gait disturbance or need 24 for use of an assistive device for ambulation. The orthropedic 25 consultative examination showed no objective abnormalities of 26 the joints of the upper or lower extremities. [Plaintiff] alleges a 27 history of osteoporosis, but there is no evidence of bone fracture. 28 . . . ¶ The undersigned gives weight to the assessments from the 9 1 orthopedic consultative examiner and Disability Determination 2 Services medical consultants because they are consistent with the 3 evidence discussed above. 4 (AR at 13.) 5 4. The ALJ Properly Evaluated Dr. De Jesus’ Opinion The Court is persuaded that the ALJ properly rejected Dr. De Jesus’ opinion. 6 7 First, the ALJ relied on Dr. Kumar’s opinion. An examining physician’s opinion 8 may constitute substantial evidence if the “nontreating physician relies on 9 independent clinical findings that differ from the findings of the treating physician.” 10 Magallanes, 881 F.2d at 751 (internal citation omitted). Here, the record reveals that 11 Dr. Kumar conducted an extensive and independent examination of Plaintiff. (See 12 AR at 414-19.) Dr. Kumar relied on x-rays, Plaintiff’s medical history, and his own 13 observations to evaluate Plaintiff’s impairments. (See id.) As such, Dr. Kumar’s 14 opinion, which was based on specific objective evidence in the record, constitutes 15 substantial evidence. Second, the ALJ rejected Dr. De Jesus’ opinion because it was not supported 16 17 by the medical evidence. For example, the ALJ rejected Dr. De Jesus’ opinion 18 because “x-rays of the lumbar spine in November 2007 showed only mild scoliosis 19 with no other abnormalities.” (AR at 13.) The Court is persuaded that substantial 20 evidence supports the ALJ’s rejection of Dr. De Jesus’ opinion based on a lack of 21 objective medical evidence. (See, e.g., id. at 249 (imaging report dated June 2, 2005 22 and reviewed by Dr. De Jesus indicating “[d]iffuse osteopenia,”4/ “unremarkable” 23 vertebral bodies and disc spaces, and normal alignment), 363 (imaging report dated 24 July 31, 2005 finding “cervical vertebrae are normally aligned,” “disc spaces are 25 maintained,” and “spinous processes are within normal limits”), 456 (imaging report 26 27 4/ Osteopenia is “[d]ecreased calcification or density of bone[.]” Stedman’s 28 Medical Dictionary 1391 (28th ed. 2006). 10 1 dated November 8, 2007 reporting mild scoliosis, and vertebral bodies and discs are 2 normal in height).) 3 As explained by the ALJ, Dr. De Jesus’ opinion, which is brief and 4 conclusory, is based on a handful of visits over a two-year span. Where, as in this 5 case, the doctor’s notes are cursory and lacking in substantial clinical support, the 6 ALJ may discredit them. See Batson v. Comm’r of Soc. Sec., 359 F.3d 1190, 1195 7 (9th Cir. 2004) (ALJ may discredit treating physicians’ opinions that are conclusory, 8 brief, and unsupported by the record as a whole, or by objective medical findings). 9 Third, Plaintiff does not challenge the ALJ’s rejection of the other portions of 10 Dr. De Jesus’ opinion. Instead, Plaintiff only alleges that “the ALJ disregarded 11 without explanation the doctor’s opinion regarding the drowsiness side effect caused 12 by the prescribed Vicodin medication without providing specific and legitimate 13 reasons, supported by substantial evidence.” (Pl.’s Br. at 3.) However, Plaintiff 14 fails to point to, and the Court could not locate, any evidence in the record 15 suggesting that Plaintiff complained to Dr. De Jesus that she was suffering from 16 drowsiness from Vicodin or any other medication. (See generally AR at 1-503.) 17 While there is evidence that Plaintiff reported possible side effects of 18 abdominal pain and nausea to him, Dr. De Jesus did not opine that such side effects 19 would affect her ability to work. See Erickson v. Shalala, 9 F.3d 813, 817 (9th Cir. 20 1993) (“The ALJ must consider all factors that might have a significant impact on 21 an individual’s ability to work.”) (internal quotation marks and citation omitted) 22 (emphasis in original). As such, the Court finds any error the ALJ may have 23 committed – in failing to explicitly reject Dr. De Jesus’ opinion regarding side 24 effects – is harmless. 25 B. Plaintiff’s Credibility 26 Plaintiff argues that the “ALJ erroneously discredited Plaintiff’s Pain 27 Questionnaire statements and testimony regarding medication side effects. 28 Plaintiff’s drowsiness side effect, as well as the other reported side effects, are 11 1 consistent with the expected side effects of the medication. The ALJ’s credibility 2 determination is not supported by the record evidence.” (Pl.’s Br. at 5.) Plaintiff’s 3 argument is wanting. 4 1. Discounting Plaintiff’s Subjective Complaints 5 6 The ALJ Must Provide Clear and Convincing Reasons For An ALJ can reject a plaintiff’s subjective complaint upon (1) finding evidence 7 of malingering, or (2) expressing clear and convincing reasons for doing so. Benton, 8 331 F.3d at 1040. The ALJ may consider the following factors in weighing a 9 plaintiff’s credibility: (1) his or her reputation for truthfulness; (2) inconsistencies 10 either in the plaintiff’s testimony or between the plaintiff’s testimony and his or her 11 conduct; (3) his or her daily activities; (4) his or her work record; and (5) testimony 12 from physicians and third parties concerning the nature, severity, and effect of the 13 symptoms of which she complains. Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th 14 Cir. 2002). 15 Here, the ALJ did not find evidence of malingering. (See generally AR at 8- 16 15.) So, the ALJ’s reasons for rejecting Plaintiff’s credibility must rest on clear and 17 convincing reasons. See Benton, 331 F.3d at 1040. 18 2. Plaintiff’s Subjective Complaints 19 The Court first carefully reviews Plaintiff’s various complaints. 20 On October 6, 2006, Plaintiff completed an Adult Function Report form. (AR 21 at 178-85.) In the form, Plaintiff stated that she is able to drive, but “tr[ies] not to go 22 anywhere because of [her] health.” (Id. at 179.) In terms of daily activities, Plaintiff 23 mentioned that she is able to swim “two times out of a week.” (Id. at 182.) Plaintiff 24 also stated that she “can[’]t hold [her] arms up long enough to do [her] hair[, so her] 25 daughter helps [her] put it in a pony tail.” (Id. at 179.) 26 On January 25, 2007, Plaintiff completed a Disability Report form and 27 indicated that her medication “keeps [her] drow[sy].” (AR at 196.) 28 On May 13, 2007, Plaintiff completed a Pain Questionnaire form and stated 12 1 that her medication causes “dizz[i]ness, drowsiness.” (AR at 207-09.) 2 On May 14, 2007, Plaintiff completed an Exertional Daily Activities 3 Questionnaire form. (AR at 210-12.) In the form, Plaintiff stated that the 4 “medication I take on a daily basis causes me stomach upsets, nauseation, 5 headaches, dizziness.” (Id. at 210.) Plaintiff further stated that she is unable to walk 6 because her knees and legs are “always in pain” and she can “lift nothing over 10 7 pounds.” (Id. at 210-11.) 8 At the administrative hearing, Plaintiff testified that she was working as a 9 caretaker, but stopped working on September 15, 2008. (See AR at 22-23.) Plaintiff 10 testified that she stopped working “[b]ecause [of her] body pains that [she] was 11 developing every day[,]” but had been “forcing [her]self to work.” (Id. at 23.) The 12 following notable exchange then occurred between the ALJ and Plaintiff: 13 [ALJ:] Were you taking care of one person or many people? 14 [Plaintiff:] Just one. 15 [ALJ:] 16 [Plaintiff:] She moved to LA. 17 [ALJ:] What happened to that person? About the same time as you stopped working for 18 her? 19 [Plaintiff:] Uh-huh. Uh-huh. 20 [ALJ:] Okay. Would it be fair, then, to conclude that had 21 she not moved to LA you’d have continued to take 22 care of her? 23 [Plaintiff:] Well, I was going to quit anyway because of my 24 own symptoms. 25 (Id. at 23.) 26 Plaintiff further testified that she “feel[s] dizziness sometime, nauseation in 27 the stomach, acid reflux in the middle of [her] chest” due to the side effects of her 28 medications. (AR at 31.) 13 1 Plaintiff also testified that she also suffers from “a lot of depression” which 2 prevents her from working. (AR at 31.) When asked when she was diagnosed, 3 Plaintiff responded, “I think 2007.” (Id.) Plaintiff reported that “[t]hey gave me so 4 many medicines, sleeping pills, all that, I couldn’t even keep up with half of the stuff 5 they give me [for depression].” (Id. at 32.) She stated, “I don’t even know the name 6 of it.” (Id.) 7 8 3. The ALJ’s Analysis of Plaintiff’s Subjective Complaints In rejecting Plaintiff’s credibility, the ALJ found that Plaintiff’s “subjective 9 complaints and alleged limitations are out of proportion to the objective findings[.]” 10 (AR at 14.) Specifically, the ALJ explained: 11 There is no evidence of disuse muscle atrophy that would be 12 compatible with [Plaintiff’s] alleged level of inactivity. 13 [Plaintiff’s] subjective complaints and alleged limitations 14 are not consistent with the treatment she receives. [Plaintiff] has 15 had only several follow up visits with Dr. De Jesus over a two- 16 year period. She has not received workup or treatment with the 17 appropriate specialists for her arthralgias. The record does not 18 substantiate [Plaintiff’s] allegation of adverse medication side 19 effects. [Plaintiff] has not received mental health treatment and 20 she does not take psychiatric medications. It is reasonable to 21 assume that if [Plaintiff] were experiencing the disabling 22 problems alleged, she would have received more aggressive 23 treatment. 24 [Plaintiff] attempted to be misleading about her work 25 activity at the hearing. When the undersigned confronted 26 [Plaintiff] about her income of $7,819 in 2007 from in home 27 support services, [Plaintiff] said that it ended on September 15, 28 2008. The undersigned then asked why she stopped doing this 14 1 work. [Plaintiff] responded that she quit due to pains. The 2 undersigned asked what happened to the woman she cared for. 3 Only then did [Plaintiff] admit that the woman moved away. 4 (Id.) 5 6 4. The ALJ Properly Rejected Plaintiff’s Subjective Complaints On this record, the Court is persuaded that the ALJ provided clear and 7 convincing reasons for rejecting Plaintiff’s credibility. 8 First, although Plaintiff complained of debilitating pain caused by arthritis, 9 (see, e.g., AR at 3-30), the ALJ noted the lack of medical evidence to support such 10 extreme limitations. (See id. at 14); see also Batson, 359 F.3d at 1197 (the “lack of 11 objective medical evidence supporting [claimant’s] claims . . . constitute[s] 12 substantial evidence in support of the ALJ's negative credibility determination”); 13 Thomas, 278 F.3d at 959 (lack of objective medical evidence supporting descriptions 14 of pain and limitations negatively affected claimant’s credibility regarding her 15 inability to work). 16 Second, the ALJ properly rejected Plaintiff’s credibility based on ordinary 17 techniques of trustworthiness determination, such as contradictions between 18 Plaintiff’s testimony and her conduct. (See AR at 14); see also Thomas, 278 F.3d at 19 958-59. The ALJ noted that despite Plaintiff’s allegations of debilitating pain, 20 Plaintiff only sought treatment from Dr. De Jesus “several” times “over a two-year 21 period.” (AR at 14.) Plaintiff’s failure to seek treatment casts doubt on the 22 credibility of her claim of functionally disabling pain. See Fair v. Bowen, 885 F.2d 23 597, 603 (9th Cir. 1989) (an ALJ may rely upon a plaintiff’s “unexplained, or 24 inadequately explained, failure to seek treatment” as a proper basis to reject 25 plaintiff’s credibility). 26 Indeed, although Plaintiff testified that she suffers from “a lot of depression,” 27 (AR at 31), there is no evidence in the medical record that she sought mental health 28 treatment, was diagnosed with depression or was prescribed any depression 15 1 medication. Even a gossamer of depression fails to exist here. (See generally id. at 2 1-503; see also id. at 404 (November 14, 2006 complete psychiatric evaluation 3 report, performed at request of Social Security Administration, indicating that 4 Plaintiff stated to evaluating psychiatrist that she “has never seen a psychiatrist” and 5 “is not under any psychiatric treatment” and “is currently not taking any psychiatric 6 medication”).) 7 Third, the Court finds that the ALJ’s rejection of Plaintiff’s credibility 8 because he determined that she “attempted to be misleading about her work activity 9 at the hearing” is a clear and convincing reason. Plaintiff stated that she quit her 10 position as a caretaker due to pain. Plaintiff was not forthright with the ALJ, 11 however. Plaintiff failed to disclose, until she was directly questioned, that her 12 employment as a caretaker was terminated due to the relocation of the woman that 13 was in her care. (See AR at 23.) 14 Accordingly, substantial evidence supports the ALJ’s credibility 15 determination because the ALJ provided clear and convincing reasons for finding 16 Plaintiff unbelievable. 17 Finally, the Court notes that Plaintiff again does not contest the ALJ’s overall 18 credibility finding. (See Pl’s Br. at 4-5.) Plaintiff claims that there is substantial 19 evidence supporting her reports of suffering from side effects. While Plaintiff 20 claims that the ALJ erred in rejecting her complaints of “dizziness, drowsiness, and 21 upset stomach,” the focus of her argument is that she feels drowsy from Vicodin. 22 (See id.) However, as previously explained, Plaintiff points to no evidence in the 23 medical record to support this assertion, i.e., that she ever told any treating or 24 examining physician that her medication caused her to feel drowsy. (See generally 25 id.; Reply at 2-3.) Thus, the ALJ did not err in rejecting Plaintiff’s statements that 26 she suffers from drowsiness caused by Vicodin. 27 28 C. Consideration of the Type, Dosage, Effectiveness and Side Effects of Plaintiff’s Medication 16 1 Plaintiff contends that the “ALJ erred in failing to comply with [Social 2 Security Ruling 96-7p] by not properly evaluating the dosage and side effects of 3 Plaintiff’s medication” and pertinaciously clings to Dr. De Jesus’ opinion and 4 Plaintiff’s statements regarding side effects from medications in support of her 5 argument. (Pl.’s Br. at 5.) Plaintiff’s claim is untenable. 6 1. The ALJ Must Consider Type, Dosage, Effectiveness, and Side 7 Effects of Medication Only If Side Effects Have Significant 8 Impact on Ability to Work Pursuant to Social Security Ruling (“SSR”) 96-7p,5/ 1996 WL 374186, at *3, 9 10 an ALJ must consider the “type, dosage, effectiveness, and side effects of any 11 medication the individual takes or has taken to alleviate pain or other symptoms.” 12 However, an ALJ need only consider those medication side effects that have a 13 “significant impact on an individual’s ability to work.” Erickson, 9 F.3d at 817-18 14 (internal quotation marks and citation omitted). The “claimant bears the burden of 15 proving that a medication’s side effects are disabling.” Short v. Astrue, 648 F. Supp. 16 2d 1185, 1191 (C.D. Cal. 2009). The ALJ is not obligated to consider a claimant’s allegations of side effects 17 18 when the claimant has “provided no evidence to support this claim other than a 19 statement in his daily activities questionnaire.” Hopkins v. Astrue, 227 Fed. Appx. 20 656, 657 (9th Cir. 2007). This is so because “‘a claimant’s self-serving statements 21 may be disregarded to the extent they are unsupported by objective findings.’” Id. 22 (quoting Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985)). Even “passing 23 24 25 26 27 28 5/ “The Commissioner issues Social Security Rulings [(“SSRs”)] to clarify the Act’s implementing regulations and the agency’s policies. SSRs are binding on all components of the [Social Security Administration]. SSRs do not have the force of law. However, because they represent the Commissioner’s interpretation of the agency’s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations.” Holohan v. Massanari, 246 F.3d 1195, 1203 n. 1 (9th Cir. 2001) (internal citations omitted). 17 1 mentions of side effects” in some medical records would be insufficient in the 2 absence of evidence of side effects “severe enough to interfere with [a claimant’s] 3 ability to work.” Osenbrock v. Apfel, 240 F.3d 1157, 1164 (9th Cir. 2001). 4 2. Plaintiff’s Medication 5 6 The ALJ Did Not Fail to Properly Consider the Side Effects of Here, the Court concludes that the ALJ did not fail to properly consider the 7 side effects of Plaintiff’s medication. Three reasons guide the Court’s 8 determination. 9 First, the only evidence in the record to support Plaintiff’s contention are 10 statements from her own testimony and the forms Plaintiff completed, i.e., her own 11 Disability Report, Pain Questionnaire, and Daily Activities Form. (See AR at 31, 12 196, 208, 210.) Even assuming arguendo that such evidence would be sufficient to 13 satisfy Plaintiff’s burden that her side effects are disabling, the ALJ rightly found 14 Plaintiff’s testimony and statements cannot be credited. See supra § V(B)(4). 15 Second, Plaintiff cites Dr. De Jesus’ opinion that Plaintiff “would need to lie 16 down at unpredictable intervals during a work shift” because of the drowsiness 17 caused by Vicodin, (see Pl.’s Br. at 5), but as explained supra § V(A)(4), the ALJ 18 properly rejected Dr. De Jesus’ opinion. 19 Third, Plaintiff fails to identify, and the Court again could not locate, a single 20 instance in the medical record where Plaintiff complained of feeling drowsy, dizzy, 21 or suffering from headaches to a treating or examining physician. Apart from 22 drowsiness, Dr. De Jesus did not opine any additional functional limitations 23 resulting from adverse side effects, i.e., limitations from upset stomach or nausea, or 24 that any such side effects are severe enough to interfere with Plaintiff’s ability to 25 work. (See generally AR at 477-79.) Plaintiff fails to meet her burden to 26 demonstrate that her medication side effects of upset stomach, nausea, headache, or 27 dizziness, (see id. at 210), are severe enough to interfere with her ability to work. 28 Osenbrock, 240 F.3d at 1164. Thus, no reversible error can be found based on the 18 1 ALJ’s asserted failure to consider the type, dosage, and side effects of Plaintiff’s 2 medications. 3 D. Lay Witness Statements 4 Plaintiff contends that the ALJ failed to properly consider the lay witness 5 statements of Eric Eolst (“Mr. Eolst”), Plaintiff’s adult son. (Pl.’s Br. at 8-9.) 6 Plaintiff maintains that “the ALJ failed to discuss any of the lay witness’s actual 7 statements or articulate with specificity the statements he found to be inconsistent 8 with the objective findings and record evidence” and the “ALJ’s conclusory remarks 9 . . . do not satisfy the ALJ’s duty to provide germane reasons for rejecting lay 10 witness testimony.” (Id. at 9.) 11 12 13 1. The ALJ Must Provide Reasons Germane to Lay Witness to Discount Such Statements “[L]ay testimony as to a claimant’s symptoms or how an impairment affects 14 ability to work is competent evidence and therefore cannot be disregarded without 15 comment.” Stout v. Commissioner, 454 F.3d 1050, 1053 (9th Cir. 2006) (internal 16 quotation marks, ellipses and citation omitted) (italics in original); see Smolen v. 17 Chater, 80 F.3d 1273, 1288 (9th Cir. 1996); see also 20 C.F.R. §§ 404.1513(d)(4) 18 (explaining that Commissioner will consider evidence from “non-medical 19 sources[,]” including “spouses, parents and other caregivers, siblings, other relatives, 20 friends, neighbors, and clergy[,]” in determining how a claimant’s impairments 21 affect his or her ability to work) & 416.913(d)(4) (same). 22 The ALJ may only discount the testimony of lay witnesses if he provides 23 specific “reasons that are germane to each witness.” Dodrill v. Shalala, 12 F.3d 915, 24 919 (9th Cir. 1993); accord Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) (“Lay 25 testimony as to a claimant’s symptoms is competent evidence that an ALJ must take 26 into account, unless he or she expressly determines to disregard such testimony and 27 gives reasons germane to each witness for doing so.”). 28 Finally, “where the ALJ’s error lies in a failure to properly discuss competent 19 1 lay testimony favorable to the claimant, a reviewing court cannot consider the error 2 harmless unless it can confidently conclude that no reasonable ALJ, when fully 3 crediting the testimony, could have reached a different disability determination.” 4 Stout, 454 F.3d at 1056. 5 6 2. Third Party Report In this case, on October 6, 2006, Mr. Eolst completed a Third Party Function 7 Report on behalf of his mother. (See AR at 187-93.) In the report, Mr. Eolst stated 8 that he “help[s his] mom when she needs [him].” (Id. at 187.) In describing 9 Plaintiff’s daily activities, Mr. Eolst stated that when Plaintiff is “not in pain,” she is 10 able to “cook” for her children and prepares food, such as a “sandwich” or “frozen 11 dinners.” (Id. at 188-89.) Mr. Eolst also indicated that Plaintiff is able to do very 12 little “cleaning, laundry, ironing.” (Id. at 189.) 13 In the report, Mr. Eolst stated that Plaintiff is able to grocery shop or attend 14 church when “she[’]s not in pain.” (AR at 190.) Further, he reported that Plaintiff 15 swims twice a week. (Id. at 191.) He estimated that “she could probably lift 25 16 pound[s], walking not to[o] far [and] standing not to[o] long.” (Id. at 192.) 3. 17 18 The ALJ’s Analysis of the Third Party Report With respect to Mr. Eolst’s Third Party Report, the ALJ stated as follows: The undersigned has considered the allegations in the third 19 20 party function report from [Plaintiff’s] son, but the undersigned 21 does not find any additional limitations based on the allegations 22 therein because they are not consistent with the objective 23 findings, [Plaintiff’s] treatment, or [Plaintiff’s] work activity after 24 the alleged onset date, as discussed above. 25 (AR at 14.) 26 4. The ALJ Did Not Err in Rejecting the Third Party Report 27 The Court finds that the ALJ correctly rejected Mr. Eolst’s statements. 28 Here, the ALJ rejected Mr. Eolst’s statements to the extent that they were 20 1 inconsistent with Plaintiff’s treatment, work activity, and the objective medical 2 evidence of record. “One [germane] reason for which an ALJ may discount lay 3 witness testimony is that it conflicts with medical evidence.” Lewis, 236 F.3d at 4 511; Pallas v. Astrue, 246 Fed. Appx. 426, 428 (9th Cir. 2007) (finding ALJ 5 properly rejected lay witness report where medical evidence contradicted lay 6 witness’s statements). As discussed supra § V(A)(4), there is no objective medical 7 evidence in the record to support Mr. Eolst’s statements as to Plaintiff’s level of 8 pain. Thus, the ALJ’s rejection of Mr. Eolst’s statements is supported by substantial 9 evidence and was not error. See Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 10 2005) (inconsistency with medical evidence is a germane reason for discrediting the 11 testimony of a lay witness). 12 E. Vocational Expert Hypothetical 13 Plaintiff lastly contends that the “ALJ erroneously omitted Dr. De Jesus’ 14 findings from the hypothetical questions posed to the VE” and “failed to mention Dr. 15 De Jesus’ opinion that Plaintiff’s Vicodin medication caused drowsiness, that she 16 would need to lie down at unpredictable intervals during a work shift, and that she 17 should not operate machinery or drive.” (Pl.’s Br. at 7.) 18 The ALJ may rely on testimony a vocational expert gives in response to a 19 hypothetical that contains “all of the limitations that the ALJ found credible and 20 supported by substantial evidence in the record.” Bayliss, 427 F.3d at 1217-18. The 21 ALJ is not required to include limitations that are not in his findings. Rollins v. 22 Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Osenbrock, 240 F.3d at 1165. 23 Here, the ALJ did not err in omitting any functional limitations caused by 24 drowsiness because the ALJ properly discounted Dr. De Jesus’ opinion and 25 Plaintiff’s credibility. See Mancillas-Gutierrez v. Astrue, 2009 WL 453059, at *6 26 (C.D. Cal. 2009) (where ALJ properly discounted claimant’s credibility and 27 opinions of treating physicians, ALJ did not err in omitting limitations asserted by 28 claimant in posing hypothetical); Thomas, 278 F.3d at 959 (ALJ need not include 21 1 limitations derived from testimony ALJ determines is not credible in hypothetical 2 questions posed to a vocational expert). In other words, because the Court finds that 3 there is substantial evidence in the record as a whole to support the ALJ’s decision 4 to reject the limitations resulting from the side effects of Plaintiff’s medications, 5 substantial evidence also supports the ALJ’s decision to exclude these restrictions in 6 his hypotheticals to the VE. 7 Based on the foregoing, IT IS ORDERED THAT judgment shall be entered 8 AFFIRMING the decision of the Commissioner denying benefits. 9 10 Dated: January 5, 2011 11 ___________________________ Hon. Jay C. Gandhi United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22
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