Howard D. Jorgenson v. Michael J. Astrue, No. 2:2011cv02407 - Document 15 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle. IT IS ORDERED that Judgment shall be entered affirming the decision of the Commissioner of the Social Security Administration. (mz)

Download PDF

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 HOWARD D. JORGENSON, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. CV 11-02407-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on April 1, 2011, seeking review of the 19 denial of 20 disability insurance benefits ( DIB ). 21 consented, pursuant to 28 U.S.C. § 636(c), to proceed before the 22 undersigned United States Magistrate Judge. The parties filed a Joint 23 Stipulation on December 5, 2011, in which: plaintiff seeks an order 24 reversing the Commissioner s decision and remanding this case for the 25 payment 26 proceedings; and the Commissioner requests that his decision be affirmed 27 or, alternatively, remanded for further administrative proceedings. The 28 Court has taken the parties Joint Stipulation under submission without of plaintiff s benefits application for or, a period of disability and On April 27, 2011, the parties alternatively, for further administrative 1 oral argument. 2 3 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 4 5 On March 10, 2008, plaintiff protectively filed an application for 6 a period of disability and DIB. 7 Plaintiff, who was born on November 25, 1957 (A.R. 25),1 claims to have 8 been disabled since March 4, 2000, due to pain in his shoulders, hip 9 and legs (A.R. 21). 10 (Administrative Record ( A.R. ) 21.) Plaintiff has no past relevant work experience.2 (A.R. 25.) 11 12 After the Commissioner denied plaintiff s claim initially and upon 13 reconsideration (A.R. 21, 61-66, 68-74), plaintiff requested a hearing 14 (see A.R. 77-83). 15 counsel, appeared and testified at a hearing before Administrative Law 16 Judge Jeffrey A. Hatfield (the ALJ ). 17 mother Sharon Jorgenson and vocational expert Sydney Mathilde also 18 testified. 19 claim 20 plaintiff s request for review of the ALJ s decision (A.R. 1-3). 21 decision is now at issue in this action. (A.R. (Id.) On May 5, 2009, plaintiff, who was represented by (A.R. 21, 28-57.) Plaintiff s On September 9, 2009, the ALJ denied plaintiff s 21-27), and the Appeals Council subsequently denied That 22 23 24 1 25 26 27 28 On the date last insured, plaintiff was 47 years old, which is defined as a younger individual. (A.R. 25; citing 20 C.F.R. § 404.1563.) Plaintiff is now in the closely approaching advanced age category. (Id.) 2 Although the ALJ found that plaintiff has no past relevant work experience, it does appear that plaintiff has prior work experience as a tow truck driver. (See, e.g., A.R. 35, 44-45.) 2 1 SUMMARY OF ADMINISTRATIVE DECISION 2 3 The ALJ found that plaintiff last met the insured status 4 requirements of the Social Security Act on December 31, 2004. (A.R. 5 23.) 6 gainful activity from March 4, 2000, his alleged onset date, through 7 December 31, 2004, his date last insured. 8 that plaintiff has the severe impairments of status post bilateral 9 lower extremity crush injury and left shoulder tendonitis. The ALJ also found that plaintiff did not engage in substantial (Id.) The ALJ determined (Id.) The 10 ALJ also determined that plaintiff does not have an impairment or a 11 combination of impairments that met or medically equaled one of the 12 listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 13 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). (A.R. 24.) 14 15 After reviewing the record, the ALJ determined that, through the 16 date last insured, plaintiff had the residual functional capacity 17 ( RFC ) to: 18 19 lift and carry 20 20 frequently, stand/walk 4 hours in an 8-hour workday, sit 6 21 hours in an 8-hour workday with need to alternate sitting and 22 standing every 30 minutes to relieve discomfort, occasional 23 ramp/stair 24 occasional balance, stoop, kneel, and crouch, no crawling, and 25 avoidance of concentrated exposure to unprotected heights and 26 dangerous machinery. climbing, pounds no occasionally ladder/rope/scaffold 27 28 and (A.R. 24.) 3 10 pounds climbing, 1 Based on this RFC assessment, as well as plaintiff s age, 2 education,3 work experience, and the testimony of the vocational expert, 3 the ALJ found that, through the date last insured, there were jobs that 4 existed in significant numbers in the national economy that [plaintiff] 5 could have performed, including assembler, table worker, and film touch 6 up inspector. (A.R. 26.) Accordingly, the ALJ concluded that plaintiff 7 was not under a disability . . . at any time from March 4, 2000, the 8 alleged onset date, through December 31, 2004, the date last insured. 9 (A.R. 26.) 10 11 STANDARD OF REVIEW 12 13 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 14 decision to determine whether it is free from legal error and supported 15 by substantial evidence in the record as a whole. 16 F.3d 625, 630 (9th Cir. 2007). 17 evidence as a reasonable mind might accept as adequate to support a 18 conclusion. 19 a mere scintilla but not necessarily a preponderance. 20 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). 21 record can constitute substantial evidence, only those reasonably drawn 22 from the record will suffice. 23 1066 (9th Cir. 2006)(citation omitted). Orn v. Astrue, 495 Substantial evidence is such relevant Id. (citation omitted). The evidence must be more than Connett v. While inferences from the Widmark v. Barnhart, 454 F.3d 1063, 24 25 Although this Court cannot substitute its discretion for that of 26 the Commissioner, the Court nonetheless must review the record as a 27 3 28 The ALJ found that plaintiff has a limited education and is able to communicate in English. (A.R. 25.) 4 1 whole, weighing both the evidence that supports and the evidence that 2 detracts from the [Commissioner s] conclusion. 3 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 4 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 5 responsible for determining credibility, resolving conflicts in medical 6 testimony, and for resolving ambiguities. 7 1035, 1039 (9th Cir. 1995). Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 8 9 The Court will uphold the Commissioner s decision when the evidence 10 is susceptible to more than one rational interpretation. Burch v. 11 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 12 review only the reasons stated by the ALJ in his decision and may not 13 affirm the ALJ on a ground upon which he did not rely. 14 at 630; see also Connett, 340 F.3d at 874. 15 the Commissioner s decision if it is based on harmless error, which 16 exists only when it is clear from the record that an ALJ s error was 17 inconsequential to the ultimate nondisability determination. Robbins 18 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 19 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 20 at 679. However, the Court may Orn, 495 F.3d The Court will not reverse 21 22 DISCUSSION 23 24 Plaintiff claims that the ALJ did not properly: (1) consider the 25 testimony of plaintiff; (2) consider the lay witness testimony of 26 plaintiff s mother, Sharon Jorgenson; and (3) assess plaintiff s RFC in 27 view of plaintiff s severe impairment of left shoulder tendonitis. 28 (Joint Stipulation ( Joint Stip. ) at 4-12, 16-23, 27.) 5 1 I. 2 The ALJ Gave Clear And Convincing Reasons For Rejecting Plaintiff s Testimony. 3 4 Once a disability claimant produces objective medical evidence of 5 an underlying impairment that is reasonably likely to be the source of 6 claimant s subjective symptom(s), all subjective testimony as to the 7 severity of the symptoms must be considered. 8 F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 346 9 (9th Cir. 1991); see also 20 C.F.R. § 404.1529(a) (explaining how pain Moisa v. Barnhart, 367 10 and other symptoms are evaluated). 11 malingering based on affirmative evidence thereof, he or she may only 12 find an applicant not credible by making specific findings as to 13 credibility and stating clear and convincing reasons for each. Robbins 14 v. SSA, 466 F.3d 880, 883 (9th Cir. 2006). 15 in weighing a claimant s credibility include: 16 reputation for 17 claimant s testimony 18 conduct; (3) the claimant s daily activities; (4) the claimant s work 19 record; and (5) testimony from physicians and third parties concerning 20 the nature, severity, and effect of the symptoms of which the claimant 21 complains. 22 2002); see also 20 C.F.R. § 404.1529(c). truthfulness; or [U]nless an ALJ makes a finding of (2) between The factors to be considered (1) the claimant s inconsistencies the claimant s either in the testimony and her See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 23 24 The ALJ found that plaintiff has the severe impairments of status 25 post bilateral lower 26 tendonitis. 27 [plaintiff] s medically determinable impairments could reasonably be 28 expected to cause the alleged symptoms[,] . . . [plaintiff] s statements (A.R. extremity 23.) crush The 6 ALJ injury further and left found shoulder that while 1 concerning the intensity, persistence and limiting effects of these 2 symptoms are not credible to the extent they are inconsistent with the 3 above [RFC] assessment. 4 of malingering, the ALJ was required to provide clear and convincing 5 reasons for rejecting plaintiff s subjective allegations of pain and 6 functional limitations. (A.R. 25.) Because the ALJ cited no evidence 7 8 In rejecting plaintiff s testimony, the ALJ stated the following: 9 10 [T]he only medical records for the period from the alleged 11 onset date of March 4, 2000 through the date last insured of 12 December 31, 2004 are of two emergency room visits in February 13 2004. 14 during that period. 15 required use of a wheelchair or other assistive device during 16 the period at issue. There is no evidence of regular and ongoing treatment There is no evidence that [plaintiff] 17 18 (A.R. 25.) 19 20 Contrary to plaintiff s contention, the ALJ s reasons for rejecting 21 plaintiff s testimony are clear and convincing. First, the ALJ properly 22 notes that, during the period at issue, there is no evidence of regular 23 and ongoing treatment, and there are only two emergency room records. 24 See Orn, 495 F.3d at 638 (noting that [o]ur case law is clear that if 25 a claimant complains about disabling pain but fails to seek treatment, 26 . . . an ALJ may use such failure as a basis for finding the complaint 27 unjustified or exaggerated ). 28 lack of objective evidence to support plaintiff s alleged use of a Second, the ALJ properly considered the 7 1 wheelchair or other assistive device during the period at issue. See, 2 e.g., Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005)(noting that 3 [a]lthough lack of medical evidence cannot form the sole basis for 4 discounting pain testimony, it is a factor that the ALJ can consider in 5 his credibility analysis ). Accordingly, because the ALJ provided clear 6 and convincing reasons for finding plaintiff s testimony to be not 7 credible, no reversible error was committed. 8 9 II. 10 The ALJ Committed No Reversible Error In Considering The Lay Witness Testimony Of Sharon Jorgenson. 11 12 In evaluating the credibility of a claimant s assertions of 13 functional limitations, the ALJ must consider lay witnesses reported 14 observations of the claimant. 15 family members in a position to observe a claimant s symptoms and daily 16 activities are competent to testify as to [the claimant s] condition. 17 Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993); 20 C.F.R. § 18 404.1513(d) ( [W]e may also use evidence from other sources to show the 19 severity of your impairment(s). . . . 20 not limited to . . . spouses, parents and other caregivers, siblings, 21 other 22 disregards the testimony of a lay witness, the ALJ must provide reasons 23 that are germane to each witness. 24 1115 (9th Cir. 2009)(citation omitted). 25 germane to each witness must be specific. 26 Lastly, where the ALJ s error lies in a failure to properly discuss 27 competent lay testimony favorable to the claimant, a reviewing court may 28 find relatives, such error friends, Stout, 454 F.3d at 1053. Other sources include, but are neighbors, harmless if and clergy. ). If an ALJ Bruce v. Astrue, 557 F.3d 1113, the 8 [F]riends and Additionally, the reasons lay Stout, 454 F.3d at 1054. witness testimony is 1 inconsequential to the ultimate nondisability determination. Molina 2 v. Astrue, __ F.3d __, 2012 U.S. App. LEXIS 6570, at *26, *45-*46 (9th 3 Cir. April 2, 2012)(citing Carmickle v. Comm r SSA, 553 F.3d 1155, 1162 4 (9th Cir. 2008)). 5 6 As noted in the ALJ s decision, at the May 5, 2009 administrative 7 hearing, plaintiff s mother, Sharon Jorgenson, testified that: 8 lives the wheelchair ; and 9 plaintiff lies down a lot and uses leg braces. (A.R. 25.) In with [plaintiff,] and she helps with she 10 considering Ms. Jorgenson s testimony, the ALJ referenced his reason for 11 rejecting plaintiff s testimony and similarly rejected Ms. Jorgenson s 12 testimony, because there [wa]s no evidence that [plaintiff] required 13 use of a wheelchair or other assistive device during the period from 14 March 4, 2000 through December 31, 2004. 15 the ALJ rejected the testimony of Ms. Jorgenson, because it was not 16 supported by the medical record. (A.R. 25.) In other words, 17 18 It is unclear under Ninth Circuit case law whether an ALJ may 19 summarily reject lay testimony, because it is not supported by objective 20 medical findings. 21 Circuit suggests that such a finding by the ALJ constitutes a sufficient 22 reason. 23 2001)( One reason for which an ALJ may discount lay testimony is that it 24 conflicts with medical evidence ); see also Bayliss v. Barnhart, 427 25 F.3d 1211, 1218 (9th Cir. 2005)( An ALJ need only give germane reasons 26 for discrediting the testimony of lay witnesses. 27 medical evidence is one such reason. ). 28 that it is not. Specifically, one strand of cases in the Ninth See, e.g., Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. Inconsistency with Another line of cases suggests See, e.g., Bruce, 557 F.3d at 1116 ( Nor under our law 9 1 could the ALJ discredit her lay testimony as not supported by medical 2 evidence in the record. )(citing Smolen v. Chater, 80 F.3d 1273, 1289 3 (9th Cir. 1996)). 4 5 Assuming arguendo that the ALJ committed error in rejecting the lay 6 testimony of Ms. Jorgenson, such error was harmless. As discussed 7 supra, the ALJ properly discredited plaintiff s testimony -- testimony 8 which was substantially similar to that of Ms. Jorgenson -- not only 9 because it was not supported by the medical record but also because 10 plaintiff failed to seek regular and ongoing treatment despite his 11 allegedly disabling impairments. 12 because Ms. Jorgenson s testimony regarding plaintiff s limitations was 13 similar to plaintiff s own testimony, and because the ALJ provided clear 14 and convincing reasons for discounting plaintiff s testimony, the ALJ 15 likewise provided sufficient reasons for rejecting Ms. Jorgenson s 16 testimony. 17 failure to give specific witness-by-witness reasons for rejecting the 18 lay witness testimony to be harmless, [b]ecause the ALJ had validly 19 rejected 20 discussing [the claimant s] testimony ); see also, Valentine v. Comm r 21 SSA, 574 F.3d 685, 694 (9th Cir. 2009)(holding that because the ALJ 22 provided clear and convincing reasons for rejecting [the claimant s] own 23 subjective complaints, and because [the lay witness s] testimony was 24 similar to such complaints, it follows that the ALJ also gave germane 25 reasons for rejecting [the lay witness s] testimony )). 26 is no reversible error. 27 /// 28 /// Accordingly, as in Molina v. Astrue, 2012 U.S. App. LEXIS 6570, at *46 (finding the ALJ s all the limitations described 10 by the lay witnesses in As such, there 1 2 III. The ALJ Committed No Reversible Error In Assessing Plaintiff s RFC. 3 4 Plaintiff contends that the ALJ did not assess his RFC properly in 5 view of his severe impairment of left shoulder tendonitis. (Joint Stip. 6 at 5-13, 16.) 7 legal error, because despite find[ing] the presence of a severe upper 8 extremity impairment[,] . . . [the ALJ ] fail[ed] to impose any 9 limitations 10 assessment. Specifically, plaintiff claims that the ALJ committed as a result of that severe impairment in [his RFC] (Id. at 5.) 11 12 As discussed above, at step two, the ALJ found that plaintiff has 13 the severe impairments of status post bilateral lower extremity crush 14 injury and left shoulder tendonitis. 15 plaintiff s RFC, the ALJ summarized plaintiff s medical record during 16 the period at issue. 17 plaintiff had two emergency room visits between March 4, 2000, through 18 his last insured date of December 31, 2004. 19 the first emergency room record, dated February 7, 2004, the ALJ noted 20 that plaintiff complained of left shoulder pain status post accident a 21 few months ago. . . . [and that] [x]-rays revealed mild degenerative 22 changes without evidence of acute fracture or dislocation. 23 Regarding the second emergency room record, dated February 27, 2004, the 24 ALJ noted that plaintiff complain[ed] of left shoulder and hand pain 25 and swelling for three weeks. 26 shoulder sprain. 27 the evidence from the period from March 4, 2000 through the date last 28 insured of December 31, 2004, as discussed above -- and [plaintiff] s (A.R. 23.) In determining In pertinent part, the ALJ noted, inter alia, that (Id.) (A.R. 24.) With respect to (Id.) [Plaintiff] was diagnosed with left Taking into account this evidence -- to wit, 11 1 history of bilateral lower extremity injury[,] the ALJ determined that 2 plaintiff has the RFC to, inter alia, lift and carry 20 pounds 3 occasionally and 10 pounds frequently. (A.R. 25; emphasis added.) 4 5 As noted above, the ALJ specifically considered plaintiff s severe 6 impairment of left shoulder tendonitis in assessing plaintiff s RFC. 7 Contrary to plaintiff s contention, by limiting plaintiff to lifting no 8 more than 10 pounds frequently and 20 pounds occasionally -- to wit, 9 light work4 -- the ALJ imposed limitations related to plaintiff s 10 impairment. 11 complaining generally about pain in his shoulder, plaintiff does not 12 point to, and the record does not support, limitations greater than 13 those found by the ALJ. Moreover, the ALJ properly rejected plaintiff s 14 testimony 15 assessment.5 16 assessing plaintiff s RFC. to Indeed, the as extent the it Commissioner was properly inconsistent with notes, the beyond ALJ s RFC Accordingly, the ALJ committed no reversible error in 17 18 CONCLUSION 19 20 For the foregoing reasons, the Court finds that the Commissioner s 21 decision is supported by substantial evidence and is free from material 22 4 23 Pursuant to 20 C.F.R. § 404.1567(b), light work is defined as lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. 24 5 25 26 27 28 Plaintiff cites the cases of Bray v. Comm r of SSA, 554 F.3d 1219 (9th Cir. 2009), and Hoopai v. Astrue, 499 F.3d 1071 (9th Cir. 2007), in support of his contention that the ALJ cannot find a severe impairment yet avoid including any limitations as a result of the severe impairment in assessing plaintiff s RFC. (Joint Stip. at 9-12.) However, as noted supra, the ALJ properly limited plaintiff to light work in view of his severe impairment of left shoulder tendonitis, and thus, plaintiff s contention is unavailing. 12 1 legal error. Neither reversal of the Commissioner s decision nor remand 2 is warranted. 3 4 Accordingly, IT IS ORDERED that Judgment shall be entered affirming 5 the decision of the Commissioner of the Social Security Administration. 6 IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of 7 this Memorandum Opinion and Order and the Judgment on counsel for 8 plaintiff and for defendant. 9 10 LET JUDGMENT BE ENTERED ACCORDINGLY. 11 12 DATED: May 9, 2012 13 14 15 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 13

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.