Jess Antonio Morreo v. Carolyn W Colvin, No. 2:2013cv00668 - Document 22 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Ralph Zarefsky. (See document for details). (ib)
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O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JESS ANTONIO MORREO, Plaintiff, 12 13 14 vs. CAROLYN W. COLIN, Acting Commissioner of Social Security, 15 Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) CASE NO. CV 13-00668 RZ MEMORANDUM OPINION AND ORDER 17 Plaintiff Jess Antonio Morreo claims that the Social Security Commissioner 18 wrongly denied disability benefits based on an Administrative Law Judge s (ALJ s) 19 improperly discrediting, in part, Plaintiff s testimony about his degree of pain. The Court 20 disagrees and will affirm. 21 Plaintiff complained that he was unable to work due to chronic lower back 22 pain and fibromyalgia. The ALJ agreed, at least as to lower back pain, based on his review 23 of the evidence, that Plaintiff s medically determinable impairment reasonably could be 24 expected to cause pain. Administrative Record (AR) 14, 15. (In the bold-faced heading 25 of the pertinent part of his opinion, the ALJ indicates that he found Plaintiff s severe 26 impairments to include low back pain and fibromyalgia. But in the text immediately below 27 that heading, the ALJ states otherwise, namely that Plaintiff s allegations of fibromyalgia 28 / chronic fatigue syndrome are not supported by the evidence and are not medically 1 determinable impairments (SSR 99-2p). AR 14. In his Reply, Plaintiff concedes that no 2 objective evidence supports a diagnosis of fibromyalgia. Reply Br. at 2. The Court thus 3 focuses on the back pain credibility issue alone.) The ALJ went on to find, however, that 4 Plaintiff s subjective account of the intensity, persistence and limiting effects of the pain 5 was not fully credible. AR15. Having discounted Plaintiff s degree-of-pain account, the 6 ALJ found Plaintiff capable of performing a full range of sedentary work. Plaintiff argues 7 that the ALJ erred in discrediting Plaintiff s subjective testimony. See Reply Br. at 3-4. 8 An ALJ may consider whether the objective medical evidence supports the 9 degree of limitation alleged by a claimant, but the lack of such objective evidence is only 10 one factor. It cannot form the sole basis for discounting [subjective] testimony. Burch 11 v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). In support of his conclusion that such 12 severity evidence was lacking, the ALJ cited several parts of the record. Physical exams 13 in 2009 and 2010 had mostly normal results. See AR 206-17, 219-20, 222-23, 226, 238-43. 14 Plaintiff had no neurological deficits; his strength tested as normal; he displayed no 15 positive signs of radiculopathy in standard straight-leg-raising tests; and he was able to 16 move his neck and extremities within normal ranges. AR 206-17, 219-20, 222-23, 226, 17 241-43; see AR 17 (cited by ALJ). Although two examiners described Plaintiff as 18 displaying a limp favoring his left leg, at least three other examinations revealed no such 19 antalgic gait. Compare AR 207, 243 (limp observed) with AR 210 ( Gait non-antalgic), 20 213 ( Gait appeared normal ), 220 ( Gait is nonantalgic ). Plaintiff s knee x-rays were 21 normal, AR 231, and his own treating physician, Bradley Marcus, D.O., described the 22 results of a spinal MRI as not that significant and essentially benign. AR 209-10, 212; 23 see AR 15 (cited by ALJ). These normal or near-normal objective results clash with 24 Plaintiff s testimony that he could not turn his neck, AR 31; could not seem to hold stuff 25 in his hands and could only lift 10 pounds, AR 32, 34; could not stand for more than 26 [m]aybe about 10, 15 minutes before needing to sit down (and had even less endurance 27 if walking), AR 33-34; and could not sit for more than 20 to 30 minutes without needing 28 to lie down. AR 33. The ALJ cited the opinion of examining internist Valerie Novak, -2- 1 M.D. one of the examiners, cited above, who did credit Plaintiff with having a limp that 2 Plaintiff s degree of pain is out of proportion to his physical findings. AR 243; see AR 3 16 (ALJ citation). Similarly, and in striking candor, treating physician Dr. Marcus candidly 4 and repeatedly underscored the disparity between Plaintiff s consumption of strong 5 narcotic medications and his (Plaintiff s) lack of physiologic [sic] findings. I do not feel 6 that the patient s pathology correlates with degree of narcotic medications that he is on. 7 I have discussed this with the patient s primary physician, and we will attempt to wean this 8 patient . . . I feel that both the dosage of the MS Contin and the Vicodin is pain over 9 rated [sic] given the patient s degree of pathology. AR 210, 213; see AR 15 (exhibit cited 10 by ALJ). Substantial evidence thus plainly supports the ALJ s finding that the objective 11 findings did not support Plaintiff s subjective complaints about the intensity of his pain. 12 As Burch explained, however, another factor is required, also supported by substantial 13 evidence. 14 The additional factor here is Plaintiff s drug-seeking behavior, a finding 15 supported by some of the same evidence noted immediately above. As the ALJ pointed 16 out, several physicians opined that Plaintiff appeared to be overstating his pain in order to 17 obtain the opiates upon which he was dependent. AR 16. Plaintiff often sought his next 18 prescription before his prior one should have run out, because Plaintiff had over-consumed 19 his medications. Plaintiff s primary care physician, Franklin Galef, M.D., observed that 20 Plaintiff had a tendency to accelerate analgesics without physician instruction. Plaintiff 21 almost always ran out of his medications a week or two early. AR 207. Dr. Marcus, in 22 addition to making the several disparity-of-pain statements quoted in the preceding 23 paragraph, remarked that Plaintiff had obtained overlapping opiate prescriptions from Drs. 24 Galef and himself (Marcus). Dr. Marcus remarked that he had reluctantly ordered the 25 overlapping prescription filled on that particular occasion, even though it violated 26 Plaintiff s pain management agreement. AR 213, 217. Drug-seeking behavior is a valid 27 factor to be considered in assessing a claimant s credibility about pain limitations, see 28 -3- 1 Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001), and substantial evidence 2 supports the existence of such behavior here. 3 Plaintiff, in his reply brief, seeks to distinguish Edlund by pointing out that 4 the claimant in that case admitted he was illegally exchanging his prescription painkillers 5 for Valium on the street, whereas the record here indicates that Plaintiff is simply over- 6 consuming his opiate medications and seeking premature, overlapping new prescriptions. 7 But that is a distinction without a difference. Edlund s holding did not depend upon the 8 claimant s illegal swapping of drugs, although such conduct was more gravely illicit. Like 9 the Plaintiff in this case, Carl Edlund was exaggerating his complaints of physical pain 10 in order to receive prescription pain medication . . . . It is true, as the Ninth Circuit noted 11 immediately after the foregoing quotation, that Edlund was doing so in order to get Valium. 12 Id. But nothing in Edlund suggests that Carl Edlund s credibility in over-reporting his 13 pain could only be discounted because he traded his prescription pain pills for Valium. 14 What mattered in Edlund, and what matters here, is the claimant s seeking of more 15 prescription pain medication than he should. 16 Defendant suggests a second credibility-undermining factor supported by the 17 record, namely the long gap between Plaintiff s treatments, suggesting a minimal genuine 18 need for care. Def. s Br. at 6-7. But the ALJ did not include that rationale in his decision. 19 As Plaintiff soundly notes, see Reply at 4, this Court can review only the decision the 20 Defendant made administratively, not the post hoc decision the Defendant would make in 21 this Court. Nor can this Court make its own findings in the place of those not made by the 22 ALJ. See Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). 23 In sum, the underlying opinion was free of legal error and supported by 24 substantial evidence. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). In 25 accordance with the foregoing, the decision of the Commissioner is affirmed. 26 27 28 DATED: November 7, 2013 RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE -4-
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