Walter A. Parker III v. Michael J. Astrue, No. 5:2007cv00715 - Document 21 (C.D. Cal. 2008)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. (See Order for details.)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 WALTER A. PARKER III, 12 Plaintiff, 13 v. 14 15 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 16 17 ) ) ) ) ) ) ) ) ) ) ) ) NO. EDCV 07-715 AGR MEMORANDUM OPINION AND ORDER Walter A. Parker III filed this action on June 22, 2007. Pursuant to 28 18 19 U.S.C. § 636(c), the parties filed Consents to proceed before Magistrate Judge 20 Rosenberg on July 10 and July 16, 2007. On March 26, 2008, the parties filed a 21 Joint Stipulation ( JS ) that addressed the disputed issues. The Court has taken 22 the matter under submission without oral argument. Having reviewed the entire file, the Court affirms the decision of the 23 24 Commissioner. 25 /// 26 /// 27 /// 28 /// 1 I. 2 PROCEDURAL BACKGROUND 3 Based on an application for supplemental security income benefits filed on 4 March 26, 2003, Parker was awarded child s disability benefits with an onset date 5 of disability of March 1, 1993, due to a seizure disorder. A.R. 16. When Parker 6 turned 18 years old on October 17, 2003, the Social Security Administration re- 7 evaluated his eligibility for disability benefits as an adult and determined that he 8 was not eligible. Id. 9 The Administrative Law Judge ( ALJ ) held a hearing on April 26, 2005, 10 and a supplemental hearing on October 11, 2005. A.R. 486-526, 527-575. At 11 the hearings, the ALJ elicited testimony from Parker, Parker s mother, Parker s 12 aunt, a medical expert, and a vocational expert. Id. On March 14, 2006, the ALJ 13 issued a decision denying benefits. A.R. 13-22. On March 22, 2006, Parker 14 requested review. A.R. 11. On April 20, 2007, the Appeals Council denied 15 Parker s request for review. A.R. 7-10. This lawsuit followed. 16 II. 17 STANDARD OF REVIEW 18 Pursuant to 42 U.S.C. § 405(g), this Court reviews the Commissioner s 19 decision to deny benefits. The decision will be disturbed only if it is not 20 supported by substantial evidence, or if it is based upon the application of 21 improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); 22 Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 23 Substantial evidence means more than a mere scintilla but less than a 24 preponderance it is such relevant evidence that a reasonable mind might 25 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 26 determining whether substantial evidence exists to support the Commissioner s 27 decision, the Court examines the administrative record as a whole, considering 28 adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the 2 1 evidence is susceptible to more than one rational interpretation, the Court must 2 defer to the Commissioner s decision. Moncada, 60 F.3d at 523. 3 III. 4 DISCUSSION 5 A. 6 A person qualifies as disabled, and thereby eligible for such benefits, only 7 if his physical or mental impairment or impairments are of such severity that he is 8 not only unable to do his previous work but cannot, considering his age, 9 education, and work experience, engage in any other kind of substantial gainful 10 work which exists in the national economy. Barnhart v. Thomas, 540 U.S. 20, 11 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003) (citation and internal quotation 12 marks omitted). 13 B. 14 The ALJ found that Parker had severe impairments of a seizure disorder Disability The ALJ s Findings 15 and headaches secondary to the seizure disorder. A.R. 18. The ALJ determined 16 that Parker had the residual functional capacity to perform work at any exertional 17 level. A.R. 19. However, nonexertional limitations included: no exposure to 18 extremely hot or cold environments; no working at heights or around dangerous, 19 moving machinery; and no working around unprotected pools of water. Id. The 20 ALJ concluded that Parker could perform other work as a bagger, dining room 21 attendant, and package handler. A.R. 21. 22 C. 23 Disregard of the testimony of friends . . . violates [social security Lay Testimony 24 regulations]. Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996); see also 20 25 C.F.R. §§ 404.1513(d)(4), 416.913(d)(4) (other non-medical sources of 26 evidence include friends). [T]he Commissioner will consider observations by 27 nonmedical sources about how impairments affect a claimant s ability to work. 28 Smolen, 80 F.3d at 1288. [T]he ALJ can reject the testimony of lay witnesses 3 1 only if he gives reasons germane to each witness whose testimony he rejects. 2 Id. [W]here the ALJ s error lies in a failure to properly discuss competent lay 3 testimony favorable to the claimant, a reviewing court cannot consider the error 4 harmless unless it can confidently conclude that no reasonable ALJ, when fully 5 crediting the testimony, could have reached a different disability determination. 6 Stout v. Comm r, Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006). 7 8 9 At the hearing, the ALJ heard the testimony of Parker s mother and aunt. The ALJ s decision addressed their testimony. A.R. 20. Parker argues, however, that the ALJ erred in not mentioning the 10 questionnaire submitted by Parker s sister, Kymika Burrell. JS 3-5. Burrell 11 completed a Function Report Adult Third Party on June 22, 2004. A.R. 222-30. 12 In summary, Burrell states that Parker is afraid that he might have a seizure, 13 including in his sleep. A.R. 222-223, 228, 229. His mother prepares all meals for 14 him, does all shopping for him, provides his medications, performs all household 15 chores for him, and pays his bills. A.R. 224-225. He spends his days sleeping 16 and watching TV until he gets a headache. A.R. 222, 226. He sometimes cries 17 and gets quiet. A.R. 228. 18 The Commissioner does not dispute that the ALJ did not expressly discuss 19 Burrell s questionnaire. However, the Commissioner argues that any error was 20 harmless. 21 In his decision, the ALJ does not need to discuss every piece of 22 evidence. Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 23 2003) (citation omitted). Although most of the cases concern a failure to consider 24 lay witness testimony, Parker argues the same standards should apply to a 25 questionnaire. 26 Burrell s questionnaire was essentially cumulative of the hearing testimony 27 by Parker, his mother and his aunt. Parker describes Burrell s questionnaire 28 without identifying any non-cumulative statements. JS 3. 4 1 At the April 26, 2005 hearing, Parker testified that the reason he cannot 2 work is seizures and bad headaches. A.R. 498, 504. Parker s mother testified 3 that he had one or two little seizures a week. A.R. 519-520. She stated that 4 the seizures left Parker exhausted, disoriented, and zombied out (i.e., that 5 Parker would just lie around like he s zombied out ), and that these aftereffects 6 lasted two to seven days. A.R. 521-522. 7 At the October 11, 2005 hearing, Parker and his mother indicated that the 8 frequency of his light seizures increased to four to five times a week. A.R. 534, 9 542. Parker s mother testified that each seizure lasts about 15 seconds, during 10 which he bites his tongue, lathers at the mouth, passes out and falls down. A.R. 11 536-537. He also started to have stare seizures. A.R. 543. Parker s mother 12 and aunt testified that he has seizures in his sleep. A.R. 537-538, 557. 13 Parker s aunt testified that, when Parker has a seizure, he sits around and gets 14 quiet. A.R. 557. During his sleep, Parker will blink, make jerking motions, and 15 bite his tongue. A.R. 559. 16 Parker s mother argued that they never know when Parker is going to have 17 a seizure, and they don t know what might happen. A.R. 552-553, 555. Parker s 18 aunt testified that Parker is afraid to do things because he is afraid of having a 19 seizure.1 A.R. 560. Parker s mother argued that the medical records indicating 20 no seizures for long periods of time were lies. A.R. 499-501, 565. 21 The ALJ discounted the testimony of Parker, his mother, and his aunt, 22 reasoning that (1) the medical records show that the seizures were controlled by 23 medication without any side effects (A.R. 19-20, 393, 411, 412, 414, 415, 421, 24 422, 424, 468, 470); (2) the seizures occurred when Parker s seizure medication 25 level was below the therapeutic range (A.R. 19-20, 356, 363, 364-65, 366, 377, 26 379, 383, 385, 388, 391, 404, 409, 451, 452, 466, 473); and (3) some past 27 28 1 The medical expert agreed that seizures are unpredictable. A.R. 553. 5 1 seizures were associated with Parker s failure to take medication (A.R. 19-20, 2 364-65, 371, 388, 403, 404, 411, 422, 468). Parker does not argue that the ALJ 3 improperly discounted the testimony of Parker, his mother, and his aunt. 4 Because Burrell s questionnaire was cumulative, any error in failing to 5 mention her questionnaire was harmless because no reasonable ALJ could have 6 reached a different result. See Zerba v. Comm r of Social Security 7 Administration, 2008 U.S. App. LEXIS 10954 at *3-*4 (9th Cir. 2008) (failure to 8 address husband s lay testimony is harmless error when ALJ addressed 9 substantially similar testimony of claimant and two other lay witnesses);2 Rohrer 10 v. Astrue, 2008 U.S. App. LEXIS 10950 at *2-*3 (9th Cir. 2008) (cumulative 11 questionnaire); Stout, 454 F.3d at 1056; Vincent v. Heckler, 739 F.2d 1393 1394- 12 95 (9th Cir. 1984) (an ALJ need not discuss all evidence presented and need 13 only explain why he rejected significant probative evidence ). 14 D. 15 Parker argues that the ALJ did not discuss the medication he takes for Effects of Plaintiff s Medication 16 depression, Amitriptyline. JS 8. Parker does not identify any medical records 17 indicating a diagnosis of depression or a prescription of Amitriptyline for 18 depression, and the Court has found none. The prescription for Amitriptyline was 19 for a diagnosis of chronic daily headache, seizure disorder, and insomnia.3 A.R. 20 476. 21 The Ninth Circuit has recognized that the side effects of medications can 22 have a significant impact on an individual s ability to work and should figure in the 23 disability determination process. Varney v. Sec y of Health & Human Servs., 24 846 F.2d 581, 585 (9th Cir.), relief modified, 859 F.2d 1396 (1988). An ALJ must 25 26 2 27 3 28 See Fed. R. App. P. 32.1. The Claimant s Medications form and Disability Report - Appeal submitted by Parker s mother indicated that Parker was taking Amitriptyline for his migraines and headaches. A.R. 253, 258. 6 1 consider medication and its side effects as part of his consideration of a 2 claimant s subjective pain testimony. SSR 96-7p. The ALJ noted that Parker reported no adverse side effects from 3 4 medications in the medical records. A.R. 18, 468, 470.4 Parker does not identify 5 any side effects from Amitriptyline that he suffered. Instead, Parker relies on 6 possible side effects of Amitriptyline listed in the Complete Guide to Prescription 7 & Nonprescription Drugs. JS 7. This is insufficient. In his reply, Parker refers to 8 testimony by Parker s mother as to side effects. The testimony cited states only 9 that Parker was prescribed Amitiptyline and does not identify any side effects that 10 he suffered. JS 7, 9 (citing A.R. 538-539). 11 The medical records fail to show that Parker complained of side effects 12 from Amitriptyline, let alone that they were severe enough to interfere with his 13 ability to work. See Osenbrock v. Apfel, 240 F.3d 1157, 1164 (9th Cir. 2001) 14 (ALJ did not err in excluding side effects because although [t]here were passing 15 mentions of the side effects of [the claimant s] medication in some of the medical 16 records, [] there was no evidence of side effects severe enough to interfere with 17 [his] ability to work ); see also Thomas v. Barnhart, 278 F.3d 947, 960 (9th Cir. 18 2002) (ALJ properly rejected claimant s assertion that pain medication affected 19 concentration or caused dizziness because [t]he only evidence regarding [side 20 effects were the claimant s] own statements to her doctor and her testimony at 21 the hearing ); Miller v. Heckler, 770 F.2d 845, 849 (9th Cir. 1985) (ALJ properly 22 rejected claimant s claim of disability because he produced no clinical evidence 23 showing that narcotics use impaired his ability to work ). Accordingly, the ALJ 24 did not err. 25 /// 26 /// 27 28 4 See also A.R. 411, 412, 414, 415, 421, 422, 424, 468, 470. 7 1 E. 2 Parker contends that his use of the antidepressant medication 3 Amitriptyline . . . undoubtedly purports a level of mental impairment that [he] 4 experiences. JS 9. Therefore, Parker argues that the ALJ was required to rate 5 his limitations related to a mental impairment. JS 9-10. 6 Mental Impairment As discussed in Part III.D, there is no objective medical evidence of a 7 mental impairment. The claimant bears the burden of demonstrating a severe, 8 medically determinable impairment that meets the duration requirement. 20 9 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii); Bowen v. Yuckert, 482 U.S. 137, 10 146 n.5, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987). 11 Your impairment must result from anatomical, 12 physiological, or psychological abnormalities which can 13 be shown by medically acceptable clinical and 14 laboratory diagnostic techniques. A physical or mental 15 impairment must be established by medical evidence 16 consisting of signs, symptoms, and laboratory findings, 17 not only by your statement of symptoms. 18 20 C.F.R. §§ 404.1508, 416.908. The medical records indicate that the 19 prescription for Amitriptyline was for a diagnosis of chronic daily headache, 20 seizure disorder, and insomnia. A.R. 476. As discussed above, Parker does not 21 identify any medical records indicating a diagnosis of depression or a prescription 22 of Amitriptyline for depression, and the Court has found none. Any testimony by 23 Parker s mother that Parker was prescribed Amitriptyline for depression is 24 insufficient to establish a medically determinable mental impairment. Subjective 25 testimony alone cannot establish a mental impairment. See Ukolov v. Barnhart, 26 420 F.3d 1002, 1005 (9th Cir. 2005). 27 28 Because there was no medical evidence that Parker had a medically determinable mental impairment, the ALJ had no duty to rate Parker s alleged 8 1 mental impairment. See 20 C.F.R. § 416.920a(b) (regulations applicable [i]f we 2 determine that you have a medically determinable mental impairment(s) ). 3 IV. 4 ORDER 5 6 7 8 IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. 9 10 11 DATED: September 11, 2008 ALICIA G. ROSENBERG United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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