Alfonso G Valenzuela v. Michael J Astrue, No. 2:2012cv00754 - Document 19 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)
Download PDF
<![CDATA[
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 ALFONSO G. VALENZUELA, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN,1 ) Acting Commissioner of Social ) Security, ) ) Defendant. ) ___________________________________) NO. CV 12-0754-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on February 1, 2012, seeking review of 19 the denial by the Social Security Commissioner ( Commissioner ) of 20 plaintiff s application for supplemental security income ( SSI ). On 21 March 6, 2012, the parties consented, pursuant to 28 U.S.C. § 636(c), to 22 proceed before the undersigned United States Magistrate Judge. The 23 parties filed a Joint Stipulation on October 18, 2012, in which: 24 plaintiff seeks an order reversing the Commissioner s decision and 25 awarding benefits or, alternatively, remanding for further 26 27 28 1 Carolyn W. Colvin became the Acting Commissioner of the Social Security Administration on February 14, 2013, and is substituted in place of former Commissioner Michael J. Astrue as the defendant in this action. (See Fed. R. Civ. P. 25(d).) 1 administrative proceedings; and the Commissioner requests that his 2 decision 3 administrative proceedings. be affirmed or, alternatively, remanded for further 4 5 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 6 7 On October 30, 2009, plaintiff filed an application for SSI, 8 alleging an inability to work since January 1, 2009, due to paranoia, 9 schizophrenia, 10 diabetes, neuropathy, and right hand injury. (Administrative Record ( A.R. ) 38, 99-101, 125.) 11 The Commissioner denied plaintiff s claim initially, and upon 12 13 reconsideration. (A.R. 48-52, 57-62.) 14 was represented by counsel, testified at a hearing before Administrative 15 Law James L. Moser (the ALJ ). 16 Peterson and vocational expert Sandra Trost also testified. 17 May 13, 2011, the ALJ denied plaintiff s claim. 18 Appeals Council subsequently denied plaintiff s request for review of 19 the ALJ s decision. 20 action. (A.R. 1-6.) On May 3, 2011, plaintiff, who (A.R. 35-45.) Medical expert David (Id.) (A.R. 18-34.) On The That decision is now at issue in this 21 SUMMARY OF ADMINISTRATIVE DECISION 22 23 24 The ALJ found that plaintiff had not engaged in substantial gainful 25 activity since October 30, 2009, the date his SSI application was filed. 26 (A.R. 23.) The ALJ determined that plaintiff has the severe impairments 27 of: 28 the hands, but he does not have an impairment or combination of diabetes mellitus type II, chronic pancreatitis, and arthritis of 2 1 impairments that meets or medically equals one of the listed impairments 2 in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d), 3 416.925, 416.926). (A.R. 23, 26.) 4 5 After reviewing the record, the ALJ determined that plaintiff has 6 the residual functional capacity ( RFC ) to perform less than the full 7 range of light work. (A.R. 26.) Specifically, plaintiff can: 8 9 lift and carry up to 20 pounds occasionally and 10 pounds 10 frequently; stand and walk up to 6 hours in an 8-hour day; and 11 sit up to 6 hours in an 8-hour day. 12 ramps, 13 occasionally balance, 14 Furthermore, he 15 fingering with the right hand. stairs, ladders, is ropes, stoop, limited He can occasionally climb and scaffolds. kneel, crouch, to occasional He or can crawl. handling and 16 17 (Id.) 18 19 The ALJ found that plaintiff had no past relevant work. (A.R. 28.) 20 However, based upon plaintiff s age, education, work experience, and 21 RFC, the ALJ found that jobs exist in the national economy that 22 plaintiff could perform, including flagger, counter clerk, and 23 bakery work[er] convey[or] line. 24 concluded that plaintiff has not been under a disability, as defined in 25 the Social Security Act, since October 30, 2009, the date he filed his 26 SSI application. 27 /// 28 /// (Id.) 3 (A.R. 29.) Accordingly, the ALJ 1 STANDARD OF REVIEW 2 3 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 4 decision to determine whether it is free from legal error and supported 5 by substantial evidence. 6 2007). Substantial evidence is such relevant evidence as a reasonable 7 mind might accept as adequate to support a conclusion. 8 omitted). 9 necessarily a preponderance. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. Id. (citation The evidence must be more than a mere scintilla but not Connett v. Barnhart, 340 F.3d 871, 873 10 (9th Cir. 2003). While inferences from the record can constitute 11 substantial evidence, only those reasonably drawn from the record will 12 suffice. 13 2006)(citation omitted). Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 14 15 Although this Court cannot substitute its discretion for that of 16 the Commissioner, the Court nonetheless must review the record as a 17 whole, weighing both the evidence that supports and the evidence that 18 detracts from the [Commissioner s] conclusion. 19 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 20 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 21 responsible for determining credibility, resolving conflicts in medical 22 testimony, and for resolving ambiguities. 23 1035, 1039 (9th Cir. 1995). Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 24 25 The Court will uphold the Commissioner s decision when the evidence 26 is susceptible to more than one rational interpretation. 27 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 28 review only the reasons stated by the ALJ in his decision and may not 4 Burch v. However, the Court may 1 affirm the ALJ on a ground upon which he did not rely. Orn, 495 F.3d 2 at 630; see also Connett, 340 F.3d at 874. 3 the Commissioner s decision if it is based on harmless error, which 4 exists only when it is clear from the record that an ALJ s error was 5 inconsequential to the ultimate nondisability determination. Robbins 6 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 7 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 8 at 679. The Court will not reverse 9 DISCUSSION 10 11 12 Plaintiff alleges the following two issues: (1) whether the ALJ 13 properly determined that plaintiff can engage in other work; and (2) 14 whether the ALJ properly considered plaintiff s testimony. 15 Stipulation ( Joint Stip. ) at 4.) (Joint 16 17 I. The ALJ Properly Relied On The Vocational Expert s 18 Testimony In Finding That Plaintiff Can Engage In Other 19 Work. 20 21 Plaintiff contends that the ALJ s determination that plaintiff 22 could perform other work is not supported by substantial evidence, 23 because the jobs identified by the vocational expert do not exist in 24 significant numbers. (Joint Stip. at 4-8.) 25 26 At step five of the sequential evaluation, the burden shifts from 27 the claimant to the ALJ to show that, based on the claimant s RFC, age, 28 education, and past work experience, the claimant is able to perform 5 1 other work that exists in significant numbers in the national economy. 2 Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999); 20 C.F.R. § 3 416.960(b)(3). 4 taking the testimony of a vocational expert or by referring to the 5 Grids. 6 2006); see also Tackett, 180 F.3d at 1101(describing how the vocational 7 expert s testimony and the Grids are used at step five). 8 chooses, as in this case, to rely upon the testimony of a vocational 9 expert, The ALJ can meet his burden at step five by either See Lounsburry v. Barnhart, 468 F.3d 1111, 1114-15 (9th Cir. the hypothetical posed to the vocational If the ALJ expert must Id. be 10 accurate, detailed, and supported by the medical record. If the 11 hypothetical presented to the vocational expert reflects all of the 12 claimant s limitations and is supported by substantial evidence, the ALJ 13 may rely on the vocational expert s response. 14 F.3d 1211, 1217-18 (9th Cir. 2005). 15 expertise provides the necessary foundation for his or her testimony. 16 Id. at 1218. Bayliss v. Barnhart, 427 A vocational expert s recognized No additional foundation is required. Id. 17 18 19 At the administrative hearing, the vocational expert ( VE ) testified that a person having the limitations2 identified by the ALJ 20 21 2 The ALJ asked the VE to assume a hypothetical individual with the following limitations: 22 23 24 25 26 27 28 This person can occasionally lift and/or carry with the use of both hands a maximum of 20 pounds. But the same person can frequently, and this is, of course, as a hypothetical person, lift and/or carry, including upward pulling, up to ten pounds. The person can stand and/or walk with normal breaks for about six hours in an eight-hour day and can sit with normal breaks for about six hours in an eight-hour day. Push and pull is unlimited, except for -- it s completely unlimited, push and pull. As far as climbing ramps and stairs, ladders, ropes and scaffolds, can only be done occasionally. He can only occasionally balance. He can only occasionally stoop, kneel, crouch or crawl. And as far as manipulative limitations, he 6 1 could perform jobs existing in significant numbers in the local and 2 national economy. 3 the hypothetical person could perform: (A.R. 42-43.) Specifically, the VE responded that 4 5 [At t]he light exertional level, with an SVP: 2, he could be 6 a flagger assistant, essentially a one-handed job. 7 number 8 681,530. 9 249.366-010. 372.667-022, local jobs are 3,560 and DOT code nationally At the light SVP: 2, he could be a counter clerk, This only needs occasional use of the hands. 10 Locally 6,180 and nationally 176,400. He could also be a 11 bakery worker conveyor line, which is a light SVP: 2; it s 12 occasional use of the hands. 13 mean, 978 and nationally 11,655. The local jobs are 9,000, I 14 15 (A.R. 43.) Plaintiff s counsel never challenged the job numbers the 16 vocational expert presented, never inquired about the sources of her job 17 numbers, never made any argument to the ALJ about the reliability of 18 those numbers, and never presented other jobs data. 19 although plaintiff s counsel had the opportunity to do so, he did not 20 cross-examine the vocational expert. (A.R. 44.) Indeed, (Id.) 21 22 23 After the ALJ issued his adverse decision, plaintiff submitted additional vocational evidence to the Appeals Council. (See A.R. 172- 24 25 26 27 28 can reach in all directions, including overhead, but he is limited in occasionally handling and fingering with his right hand. He s limited as to gross manipulation and handling and fine manipulation in fingering. And that s the right hand only. (A.R. 43.) 7 1 79.) Specifically, plaintiff submitted reports from Job Browser Pro, 2 a software program that compiles and analyzes job statistics. 3 According to the information contained in these reports, there were 4 significantly fewer flagger, counter clerk, and bakery worker jobs 5 available in the local and national economy than the vocational expert 6 claimed. 7 plaintiff, the Appeals Council denied review, noting that the evidence 8 did not provide a basis for changing the ALJ s decision. (Id.) (Id.) After considering the additional evidence submitted by (A.R. 1-6.) 9 10 In view of the data from Job Browser Pro, and as noted supra, 11 plaintiff contends that the ALJ erred in relying on the vocational 12 expert s testimony that there was a significant number of jobs in the 13 economy which plaintiff could perform. 14 the following reasons: This argument is rejected for 15 16 First, the ALJ was entitled to rely on the vocational expert s 17 testimony regarding the number of jobs in the economy. 18 416.966(e)(authorizing the ALJs to rely on vocational expert s testimony 19 to 20 (upholding ALJ s reliance on vocational expert s testimony regarding job 21 numbers). 22 substantial evidence. Osenbrock v. Apfel, 240 F.3d 1157, 1163 (9th Cir. 23 2001)(testimony 24 evidence). 25 vocational expert was required to identify the methodology used to 26 determine the jobs plaintiff can perform. 27 expert s expertise alone was a sufficient foundation. 28 (finding that a [vocational expert] s recognized expertise provides the determine occupational Further, of the a issues); vocational vocational Bayliss, expert s expert 427 See 20 C.F.R. § F.3d testimony constitutes at 1217-18 amounts to substantial Contrary to plaintiff s contention, neither the ALJ nor the 8 Rather, the vocational Id. at 1218 1 necessary foundation for his or her testimony, and thus, no additional 2 foundation is required ). 3 vocational expert s testimony that there were a significant number of 4 jobs in the economy was supported by substantial evidence. Accordingly, the ALJ s reliance on the 5 6 Second, plaintiff s lay assessment of the raw vocational data 7 derived from Job Browser Pro does not undermine the reliability of the 8 vocational expert s opinion, which the ALJ adopted at step five. 9 initial matter, the data presented by plaintiff was unaccompanied by any 10 analysis or explanation from a vocational expert or other expert source 11 to put the raw data into context. 12 included in the list of published sources recognized as authoritative by 13 the Social Security regulations. 14 while plaintiff identifies several decisions in which courts have 15 acknowledged that a vocational expert s testimony that relies on Job 16 Browser Pro data can constitute substantial evidence, none hold that a 17 vocational expert must rely on it or that this source controls when it 18 conflicts with the vocational expert s testimony.3 As an In fact, Job Browser Pro is not See 20 C.F.R. § 416.966(d). Further, 19 20 21 22 23 24 25 26 27 28 3 See, e.g., Poisson v. Astrue, 2012 U.S. Dist. LEXIS 43147, 2012 WL 1067661, at *9 (D. Me. March 28, 2012)(holding that a vocational expert s testimony was reliable when she relied on Job Browser Pro as well as her own professional experience and expertise in endorsing the job numbers provided), report and recommendation adopted, 2012 U.S. Dist. LEXIS 57351, 2012 WL 1416669 (D. Me. Apr. 24, 2012); Cole v. Astrue, 2011 U.S. Dist. LEXIS 129272, 2011 WL 5358557, at *26 (D. Or. June 7, 2011)(vocational expert testimony based, in part, on information obtained from Skill Trend by Job Browser was reliable evidence of the number of jobs available in the national economy which plaintiff could perform), report and recommendation adopted, 2011 U.S. Dist. LEXIS 128012, 2011 WL 5358550 (D. Or. Nov. 4, 2011); Pitts v. Astrue, 2011 U.S. Dist. LEXIS 69186, 2011 WL 2553340, at *6 (N.D. Ohio May 19, 2011)(ALJ properly relied on vocational expert s testimony regarding number of jobs available when vocational expert relied, in part, on information provided by Job Browser Pro program), report and recommendation adopted 2011 U.S. Dist. LEXIS 69185, 2011 WL 2553311 9 1 Third, assuming arguendo that the data from Job Browser Pro 2 constitutes substantial evidence, the data, at best, would support an 3 alternative finding regarding the number of job available for plaintiff 4 in the economy. 5 is susceptible to more than one rational interpretation, one of which 6 supports the ALJ s decision, the ALJ s conclusion must be upheld. 7 Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 8 the 9 Administration is responsible for resolving the conflict. record The Ninth Circuit has held that [w]here the evidence contains ambiguous or conflicting 10 Apfel, 236 F.3d 503, 509 (9th Cir. 2001). 11 Moreover, when evidence, the See Lewis v. As such, the ALJ s decision should be upheld. 12 13 Fourth, plaintiff s counsel utterly failed to challenge the 14 vocational expert s job numbers, inquire about the methodology used to 15 derive those numbers, or present competent evidence regarding other jobs 16 data at the administrative hearing. 17 after the ALJ s adverse decision to submit alternative jobs data to the 18 Appeals Council. Counsel are not supposed to be potted plants at 19 administrative hearings. They have an obligation to take an active role 20 and to raise issues that may impact the ALJ s decision while the hearing 21 is proceeding so that they can be addressed. 22 U.S. Dist. LEXIS 4059, 2012 WL 84527, at *6 (C.D. Cal. Jan. 10, 23 2012)(rejecting plaintiff s contention that apparent conflicts existed Rather, plaintiff waited until Solorazo v. Astrue, 2012 24 25 26 27 28 (N.D. Ohio June 28, 2011); Drossman v. Astrue, 2011 U.S. Dist. LEXIS 109921, 2011 WL 4496568, at *7-*8 (N.D. Ohio July 15, 2011)(ALJ properly relied on vocational expert s opinion regarding job availability rather than plaintiff s post-hearing submission of conflicting statistical information from Job Browser Pro program), report and recommendation adopted, 2011 U.S. Dist. LEXIS 109922, 2011 WL 4496561 (N.D. Ohio Sept. 27, 2011). 10 1 between 2 Occupational Titles when plaintiff s counsel failed to question the 3 vocational expert at the hearing about any alleged conflicts or request 4 the ALJ do so). 5 did 6 available at the time of the hearing, to the ALJ rather than waiting to 7 submit it to the Appeals Counsel, which, in effect, invited the alleged 8 error now at issue. not the vocational proffer expert s testimony and the Dictionary of Further, plaintiff s counsel has not explained why he the Jobs Browser Pro data, which presumably was 9 10 Accordingly, for these reasons, this Court finds no reversible 11 error and upholds the Appeals Council decision4 notwithstanding the 12 conflict between the vocational expert s testimony and the vocational 13 evidence submitted by plaintiff to the Appeals Council.5 14 /// 15 /// 16 /// 17 18 4 19 20 21 22 23 24 25 26 27 28 Courts in this district consistently have reached the same conclusion on this issue. See, e.g., Engrave v. Colvin, 2013 U.S. Dist. LEXIS 55146, 2013 WL 1661754 (C.D. Cal. April 17, 2013)(United States Magistrate Judge Jacqueline Chooljian); Gonzales v. Colvin, 2013 U.S. Dist. LEXIS 53777, 2013 WL 1614937 (C.D. Cal. April 15, 2013)(United States Magistrate Judge Patrick J. Walsh); McCaleb v. Colvin, 2013 U.S. Dit. LEXIS 3757, 2013 WL 1516259 (C.D. Cal. April 12, 2013)(United States Magistrate Judge John E. McDermott); Newsome v. Colvin, 2013 U.S. Dist. LEXIS 38779, 2013 WL 800699 (C.D. Cal. Mar. 4, 2013)(United States Magistrate Judge Arthur Nakazato); Gardner v. Colvin, 2013 U.S. Dist. LEXIS 28907, 2013 WL 781984 (C.D. Cal. Mar. 1, 2013)(United States Magistrate Judge Marc Goldman); Bradley v. Astrue, 2012 U.S. Dist. LEXIS 167522, 2012 WL 5902349 (C.D. Cal. Nov. 26, 2012)(United States Magistrate Judge Charles F. Eick). 5 The Court need not and does not determine whether, if the vocational evidence submitted by plaintiff controlled over the testimony of the vocational expert, the numbers of jobs reflected in plaintiff s evidence would constitute significant numbers of jobs. See generally Beltran v. Astrue, 700 F.3d 389 (9th Cir. 2012). 11 1 II. The ALJ Set Forth Clear And Convincing Reasons For 2 Finding Plaintiff s Testimony Regarding His Subjective 3 Symptoms And Pain To Be Not Credible. 4 5 Once a disability claimant produces objective medical evidence of 6 an underlying impairment that is reasonably likely to be the source of 7 claimant s subjective symptom(s), all subjective testimony as to the 8 severity of the symptoms must be considered. 9 F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 10 (9th Cir. 1991); see also 20 C.F.R. § 416.929(a) (explaining how pain 11 and other symptoms are evaluated). 12 malingering based on affirmative evidence thereof, he or she may only 13 find an applicant not credible by making specific findings as to 14 credibility 15 each. 16 a claimant s credibility include: 17 truthfulness; (2) inconsistencies either in the claimant s testimony or 18 between the claimant s testimony and his conduct; (3) the claimant s 19 daily activities; (4) the claimant s work record; and (5) testimony from 20 physicians and third parties concerning the nature, severity, and effect 21 of the symptoms of which the claimant complains. 22 at 958-59; see also 20 C.F.R. § 416.929(c). and stating [U]nless an ALJ makes a finding of clear Robbins, 466 F.3d at 883. Moisa v. Barnhart, 367 and convincing reasons for The factors to consider in weighing (1) the claimant s reputation for See Thomas, 278 F.3d 23 24 Here, the ALJ found that, [a]fter careful consideration of the 25 evidence, . . . [plaintiff] s medically determinable impairments could 26 reasonably be expected to cause the alleged symptoms. (A.R. 27.) 27 Further, plaintiff. 28 Nonetheless, the ALJ concluded that plaintiff s statements concerning the ALJ cited no evidence 12 of malingering by 1 the intensity, persistence and limiting effects of [his] symptoms are 2 not 3 assessment. 4 plaintiff was not credible with respect to his subjective symptom and 5 pain testimony must be clear and convincing. credible to the (Id.) extent they varied from the ALJ s own RFC Accordingly, the ALJ s reasons for finding that 6 7 During the May 3, 2011 hearing, plaintiff testified that he is 8 unable to work, because he gets tired real fast, is constantly in 9 pain, and cannot bend three fingers on his right hand. (A.R. 38-39.) 10 He testified that he experiences constant pain, particularly in his 11 legs. 12 his left knee buckles up. 13 to work, because sometimes he hears voices, he has attempted suicide, 14 and he is unable to get along with people. 15 that he last used drugs, specifically cocaine, in July 2010. (A.R. 39.) Plaintiff asserts that he always uses a cane, because (Id.) He also testified that he is unable (A.R. 40.) He testified (Id.) 16 17 In his November 28, 2009 Function Report, plaintiff reported that 18 he can walk 50 feet before he needs to rest. 19 that he has difficulty putting on his pants, because lifting his legs 20 causes a lot of pain. 21 shop for groceries, prepare his own meals daily, iron, wash his laundry, 22 and play piano every other day, but he needs help with his house 23 cleaning and yard work, because it causes pain in his legs and shortness 24 of breath, and because he gets very tired. (A.R. 133.) (A.R. 133, 137.) He noted He is able to travel independently, (A.R. 134-35.) 25 26 The ALJ rejected plaintiff s subjective complaints, because: 27 the objective evidence did not support plaintiff s allegations of pain 28 or other limitations; (2) plaintiff s statements regarding his daily 13 (1) 1 activities were inconsistent with his subjective complaints; and (3) 2 plaintiff s statements regarding his drug use were inconsistent. 3 28.) 4 declining to credit plaintiff s statements. (A.R. The reasons stated by the ALJ are legally sufficient reasons for 5 6 First, the ALJ noted that plaintiff s alleged limitations were out 7 of proportion to the objective clinical findings and his observed 8 functional restrictions. 9 examiner Dr. John Sedgh s March 5, 2010 evaluation of plaintiff, which 10 did not reflect that plaintiff s impairments were as severe as plaintiff 11 alleges. 12 complaints that the pain in his lower extremities renders him unable to 13 walk more than 50 feet, Dr. Sedgh observed that plaintiff had normal 14 motor strength in all extremities and exhibited a normal gait without 15 the use of any assistive device. 16 opined that plaintiff could: 17 10 pounds frequently; stand and walk six hours in an eight-hour day with 18 normal breaks; and sit for six hours in an eight-hour day, although his 19 kneeling, crouching, and stooping should be limited to occasionally. 20 (A.R. 336.) 21 manipulations with the right hand should be limited to occasional such 22 manipulations. 23 Capacity 24 plaintiff s medical records, was performed by a non-examining state 25 physician on March 12, 2010, and it generally confirmed Dr. Sedgh s 26 findings, noting, in particular, that plaintiff s functional allegations 27 were partially credible. 28 physician s (A.R. 27.) (A.R. 28.) As noted by The ALJ cited consultative the ALJ, despite (A.R. 27, 335-36.) plaintiff s Dr. Sedgh also lift and carry 20 pounds occasionally and Dr. Sedgh further opined that repetitive fine or gross (Id.) Assessment opinion A subsequent Physical Residual Functional based that on Dr. Sedgh s (A.R. 27-28, 346.) plaintiff 14 could records, as well as An ALJ may consider a work, which contradicts 1 plaintiff s assertion to the contrary, in determining credibility. 2 Moncada v. Chater, 60 F.3d 521, 524 (9th Cir. 1995). 3 medical evidence cannot form the sole basis for discounting plaintiff s 4 pain testimony, it is a factor that the ALJ can consider in his 5 credibility analysis.6 Although a lack of Burch, 400 F.3d at 681. 6 7 Next, the ALJ noted that plaintiff made several inconsistent 8 statements with regard to his history of drug abuse, thus detracting 9 from his credibility.7 (A.R. 28.) The medical records indicate that on 10 December 29, 2009, plaintiff reported he had been using alcohol and 11 cocaine two days ago. 12 2010, plaintiff reported that he had been recovering alcoholic for one 13 year and was not using drugs. 14 29, 2010, plaintiff reported he used crystal methamphetamine three days 15 ago, smoked cocaine yesterday, and drinks two 24 ounce beers per day. 16 (A.R. 427.) 17 stopped using alcohol and methamphetamine and had stopped using crack 18 3 months ago. (A.R. 282.) One month later, on January 25, (A.R. 416.) Four days later, on January On March 9, 2010, plaintiff reported that he recently (A.R. 429, 435.) On April 5, 2010, plaintiff reported 19 20 21 22 23 24 25 26 27 28 6 To the extent the ALJ rejects plaintiff s subjective complaints based on the fact that plaintiff s medical treatment appears to be limited and conservative, it is not a convincing reason to reject plaintiff s credibility. (A.R. 27.) While it is permissible for an ALJ to evaluate the credibility of a claimant s subjective limitations based, in part, on plaintiff s record of receiving minimal and conservative treatment, he must make detailed findings of fact so that a reviewing court may determine whether substantial evidence supports the ALJ s conclusion. The ALJ failed to meet his burden here. See Fair v. Bowen, 885 F.2d at 597, 601-02 (9th Cir. 1989); Lewin v. Schweiker, 654 F.2d 631, 634-635 (9th Cir. 1981). Further, there is no substantial evidence in the record to support the ALJ s belief that more aggressive treatment would alleviate plaintiff s symptoms significantly. 7 The record reflects that plaintiff has had a long history of alcohol and drug use, including a February 26, 2009 treatment for a burnt throat after the screen from his crack pipe fell off. (A.R. 25.) 15 1 he drinks minimal alcohol and no crystal meth for six months. (A.R. 2 439.) 3 months; however, the physician reported that plaintiff had a positive 4 U-tox for amphetamines, [and] cocaine. 5 ALJ can use ordinary techniques of credibility evaluation, such as the 6 claimant s 7 concerning the symptoms, and other testimony by the claimant that 8 appears less than candid, Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 9 1996), 10 On May 5, 2010, plaintiff denied drug use within the last three reputation this was a for clear lying, and (A.R. 361, 446.) prior inconsistent convincing reason for Thus, as the statements discounting plaintiff s testimony. 11 12 Finally, while the ALJ may look at plaintiff s daily activities as 13 a basis for determining whether plaintiff can perform certain work, the 14 ALJ fails to explain how plaintiff s ability to travel independently, 15 spend time with family, shop in stores, prepare meals, iron and wash 16 clothes, and even play the piano at a professional level, translates 17 into the ability to perform full-time work. 18 F.3d 1044, 1050 (9th Cir. 2001)(noting that the mere fact that a 19 plaintiff has carried on certain daily activities, such as grocery 20 shopping, driving a car, or limited walking for exercise, does not in 21 any way detract from her credibility as to her overall disability ); 22 Smolen, 80 F.3d at 1283 n.7 ( The Social Security Act does not require 23 that claimants be utterly incapacitated to be eligible for benefits, and 24 many 25 environment where it might be impossible to rest periodically or take 26 medication. ). 27 reason for discrediting plaintiff s subjective symptom testimony. home activities may not be easily See Vertigan v. Halter, 260 transferable to a work Thus, without more, this is not a clear and convincing 28 16 1 The Court finds, however, that the ALJ s error in relying on this 2 third reason was harmless, because the ALJ s two other reasons and 3 ultimate 4 evidence. 5 1162 63 (9th Cir. 2008)(holding that ALJ s reliance on two invalid 6 reasons in support of adverse credibility determination was harmless 7 where 8 evidence). The Court therefore finds and concludes that reversal is not 9 warranted based on the ALJ s alleged failure to properly consider 10 credibility determination are supported by substantial See Carmickle v. Comm r, Soc. Sec. Admin., 533 F.3d 1155, remaining reasons were adequately supported by substantial plaintiff s testimony. 11 12 CONCLUSION 13 14 For the foregoing reasons, the Court finds that the Commissioner s 15 decision is supported by substantial evidence and is free from material 16 legal error. Neither reversal of the Commissioner s decision nor remand 17 is warranted. 18 19 Accordingly, IT IS ORDERED that Judgment shall be entered affirming 20 the decision of the Commissioner of the Social Security Administration. 21 IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of 22 this Memorandum Opinion and Order and the Judgment on counsel for 23 plaintiff and for the Commissioner. 24 25 DATED: May 23, 2013 26 27 28 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 17
]]>
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.
