Wanda E. Broughton v. Michael J. Astrue, No. 2:2010cv07842 - Document 22 (C.D. Cal. 2012)

Court Description: ORDER AFFIRMING DECISION OF COMMISSIONER by Magistrate Judge Robert N. Block, (See document for details.) IT THEREFORE IS ORDERED that Judgment be entered affirming the decision of the Commissioner and dismissing this action with prejudice. (rla)

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1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 17 18 WANDA E. BROUGHTON, ) Case No. CV 10-7842 RNB ) Plaintiff, ) ) ORDER AFFIRMING DECISION OF vs. ) COMMISSIONER ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ) _____________________________ ) The Court now rules as follows with respect to the one disputed issue listed in 19 the Joint Stipulation, which is directed to the adverse credibility determination of the 20 Administrative Law Judge ( ALJ ).1 21 An ALJ s assessment of pain severity and claimant credibility is entitled to 22 great weight. See Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman 23 24 1 As the Court advised the parties in its Case Management Order, the 25 decision in this case is being made on the basis of the pleadings, the administrative 26 record ( AR ), and the Joint Stipulation ( Jt Stip ) filed by the parties. In accordance with Rule 12(c) of the Federal Rules of Civil Procedure, the Court has determined 27 which party is entitled to judgment under the standards set forth in 42 U.S.C. ยง 28 405(g). 1 1 v. Heckler, 779 F.2d 528, 531 (9th Cir. 1986). Under the Cotton standard, where 2 the claimant has produced objective medical evidence of an impairment which could 3 reasonably be expected to produce some degree of pain and/or other symptoms, and 4 the record is devoid of any affirmative evidence of malingering, the ALJ may reject 5 the claimant s testimony regarding the severity of the claimant s pain and/or other 6 symptoms only if the ALJ makes specific findings stating clear and convincing 7 reasons for doing so. See Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986); see 8 also Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Dodrill v. Shalala, 12 9 F.3d 915, 918 (9th Cir. 1993); Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991). 10 Here, one of the ALJ s findings was that plaintiff s medically determinable 11 impairments could reasonably be expected to cause the alleged symptoms; however, 12 plaintiff s statements concerning the intensity, persistence and limiting effects of 13 these symptoms were not credible to the extent they were inconsistent with the ALJ s 14 assessment of plaintiff s residual functional capacity. (See AR 20.) The disputed 15 issue raised by plaintiff is directed to this finding. 16 As a preliminary matter, the Court notes that the ALJ did not find that plaintiff 17 had a medically determinable mental impairment, let alone a severe medically 18 determinable mental impairment. (See AR 19.) Plaintiff has not challenged the 19 ALJ s failure to find that she suffered from a medically determinable mental 20 impairment. Since plaintiff s testimony in itself was not sufficient to establish the 21 existence of a medically determinable mental impairment, the Cotton standard does 22 not even apply to plaintiff s subjective mental complaints. See Bunnell, 947 F.2d at 23 347-48 (noting that the impairment giving rise to the application of the Cotton 24 standard must be medically ascertained). In rejecting plaintiff s subjective mental 25 complaints, the ALJ noted that, although plaintiff alleged that she had depression, she 26 had never sought any mental health treatment of any kind and never been diagnosed 27 with any mental impairment. (See AR 21.) The ALJ further noted that plaintiff had 28 a normal mental status examination when evaluated by the psychiatric examiner. (See 2 1 id. at 22, citing AR 218-19.) The Court finds that these reasons were sufficiently 2 specific to permit the Court to conclude that the ALJ did not arbitrarily discredit 3 plaintiff s subjective mental complaints. 4 The ALJ did find that plaintiff suffered from severe medically determinable 5 physical impairments, and specifically hypertension, history of heart disease, lumbar 6 strain, and left knee strain. (See AR 19.) It is plaintiff s subjective testimony 7 regarding the limiting effects of those medically determinable physical impairments 8 to which the Cotton standard applies. For the reasons discussed hereafter, the Court 9 finds that reversal is not warranted based on the ALJ s alleged failure to properly 10 evaluate plaintiff s subjective testimony regarding the limiting effects of her 11 medically determinable physical impairments. 12 With respect to plaintiff s allegations relating to her cardiac condition, 13 including her testimony that she had had numerous heart attacks, the ALJ noted that 14 plaintiff had had limited medical treatment for her cardiac condition and that the 15 record did not show any recent hospitalization or diagnosis of any specific heart 16 condition or that plaintiff had been referred to any specialists for evaluation of heart 17 problems. (See AR 20-21.) Plaintiff does not dispute the ALJ s characterization of 18 the record. The Court finds that the limited and lack of recent medical treatment for 19 her cardiac condition constituted a legally sufficient reason on which the ALJ could 20 properly rely in support of his adverse credibility determination. See, e.g., Burch v. 21 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (ALJ may properly rely on lack of 22 consistent treatment); Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1998) (ALJ may 23 properly rely on lack of treatment); Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 24 1995) (ALJ may properly rely on failure to pursue treatment); Flaten v. Secretary of 25 Health & Human Svcs., 44 F.3d 1453, 1464 (9th Cir. 1995) (ALJ may properly rely 26 on minimal medical treatment for back pain); Bunnell, 947 F.2d at 346 (ALJ may 27 properly rely on plaintiff s unexplained or inadequately explained failure to seek 28 treatment). 3 1 With respect to plaintiff s hypertension diagnosis, the ALJ noted that the 2 medical evidence did not show that plaintiff had any complications from this 3 condition and that plaintiff continued to smoke despite having been previously 4 advised to stop smoking. (See AR 21, citing AR 183, 245, 265.) An ALJ may 5 properly rely on a plaintiff s unexplained or inadequately explained failure to follow 6 a prescribed course of treatment. See Bunnell, 947 F.2d at 346; Fair v. Bowen, 885 7 F.2d 597, 603-04 (9th Cir. 1989). Thus, plaintiff s failure to follow to comply with 8 the advice to stop smoking arguably also constituted a legally sufficient reason on 9 which the ALJ could properly rely in support of his adverse credibility determination. 10 See, e.g., Cantrell v. Astrue, 2012 WL 984289, at * 13 (D. Or. Mar. 22, 2012); Reeves 11 v. Astrue, 2012 WL 1032778, at *6 (W.D. Wa. Mar. 6, 2012); Bybee v. Astrue, 2011 12 WL 6703568, at *8 (E.D. Cal. Dec. 21, 2011). 13 The ALJ also noted that plaintiff s allegations of body swelling and of inability 14 to lift her left arm were inconsistent with the objective medical evidence, including 15 the evidence of how plaintiff presented on examination. (See AR 21, citing inter alia 16 AR 267.) Plaintiff does not dispute this characterization of the record, but rather 17 contends that lack of support in the objective medical evidence was not a legally 18 sufficient reason to reject plaintiff s testimony. (See Jt Stip at 7-8.) Contrary to 19 plaintiff s contention, it was not improper for the ALJ to rely on inconsistencies 20 between plaintiff s subjective complaints and objective medical evidence in the 21 record. See, e.g., Burch, 400 F.3d at 681 ( Although lack of medical evidence cannot 22 form the sole basis for discounting pain testimony, it is a factor that the ALJ can 23 consider in his credibility analysis. ); Morgan v. Comm r of Soc. Sec., 169 F.3d 595, 24 600 (9th Cir. 1999) (ALJ may properly rely on conflict between claimant s testimony 25 of subjective complaints and objective medical evidence in the record); Tidwell, 161 26 F.3d at 602 (ALJ may properly rely on weak objective support for the claimant s 27 subjective complaints); Orteza, 50 F.3d at 750 (ALJ may properly rely on lack of 28 objective evidence to support claimant s subjective complaints); Nyman, 779 F.2d at 4 1 531 (noting that a claimant s self-serving statements may be disregarded to the 2 extent they are unsupported by objective findings ). 3 With respect to plaintiff s testimony that she had not been able to see out of her 4 right eye since 1984 (which plaintiff had listed in her disability report as one of the 5 conditions that limited her ability to work (see AR 131)), the ALJ noted that, on 6 examination, plaintiff had tested 20/70 in both eyes without glasses and had been able 7 to move around the doctor s office without any help. (See AR 21, citing AR 273.) 8 The ALJ further noted that plaintiff had not seen an ophthalmologist for her vision 9 problem in a while despite being unable to see out of her right eye since 1984 and 10 despite not wearing glasses in the last 10 years. Finally, the ALJ noted that the record 11 showed plaintiff had been able to work in various simple jobs since 1989 despite 12 having issues in her vision. (See AR 21, citing AR 132.) Again, plaintiff does not 13 dispute this characterization of the record. Under Ninth Circuit jurisprudence, the 14 inconsistency between plaintiff s statement that her vision problem limited her ability 15 to work and plaintiff s work record constituted a legally sufficient reason on which 16 the ALJ could properly rely in support of his adverse credibility determination. See 17 Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002) (ALJ may properly rely on 18 inconsistencies either in claimant s testimony or between claimant s testimony and 19 claimant s conduct, claimant s daily activities, and claimant s work record). 20 The ALJ also noted that plaintiff s testimony, including her testimony 21 regarding how she required her sister s help with getting dressed and into the bathtub 22 (see AR 46, 51-52), was inconsistent with plaintiff s previous statement that she had 23 no problems with personal care and was able to prepare simple meals and perform 24 housework, such as cleaning and doing the laundry. (See AR 21-22, citing AR 13925 40.) The Court finds that this reason also constituted a legally sufficient reason, 26 supported by the evidence of record, on which the ALJ could properly rely in support 27 of his adverse credibility determination. See, e.g., Thomas, 278 F.3d at 958-59; 28 Morgan, 169 F.3d at 600 (ALJ may properly rely on contradictions between 5 1 claimant s reported limitations and claimant s daily activities); Curry v. Sullivan, 925 2 F.2d 1127, 1130 (9th Cir. 1991) (ability to take care of personal needs, prepare easy 3 meals, do light housework and shop for some groceries may be seen as inconsistent 4 with the presence of a condition which would preclude all work activity ); see also 5 Fair, 885 F.2d at 604 n.5 (ordinary techniques of credibility evaluation apply in social 6 security cases). 7 Finally, the ALJ noted that the record did not contain any opinions from 8 treating or examining physicians indicating that plaintiff was disabled or had 9 limitations greater than those determined by the ALJ. (See AR 22.) Again, plaintiff 10 does not dispute this characterization of the record. The Court finds that this reason 11 also constituted a legally sufficient reason on which the ALJ could properly rely in 12 support of his finding that plaintiff had failed to meet her burden of proving that she 13 suffered from a disabling impairment. See Matthews v. Shalala, 10 F.3d 678, 680 14 (9th Cir. 1993). 15 In conclusion, the Court finds that the ALJ s adverse credibility determination 16 with respect to plaintiff s subjective testimony regarding the limiting effects of her 17 medically determinable physical impairments was supported by substantial evidence 18 and was sufficiently specific to permit the Court to conclude that the ALJ did not 19 arbitrarily discredit that subjective testimony. See Thomas, 278 F.3d at 958; see also 20 Fair, 885 F.2d at 604 ( Where, as here, the ALJ has made specific findings justifying 21 a decision to disbelieve an allegation of excess pain, and those findings are supported 22 by substantial evidence in the record, our role is not to second-guess that decision. ). 23 24 ******************* IT THEREFORE IS ORDERED that Judgment be entered affirming the 25 decision of the Commissioner and dismissing this action with prejudice. 26 27 DATED: May 8, 2012 28 ROBERT N. BLOCK UNITED STATES MAGISTRATE JUDGE 6

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