William T Glenn, Jr v. Michael J. Astrue, No. 5:2007cv00973 - Document 33 (C.D. Cal. 2009)

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.) (mp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 WILLIAM T. GLENN, JR., 12 Plaintiff, 13 v. 14 15 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 16 17 ) ) ) ) ) ) ) ) ) ) ) ) NO. EDCV 07-973 AGR MEMORANDUM OPINION AND ORDER 18 William T. Glenn, Jr., filed this action on August 15, 2007. On April 4, 19 2008, the parties filed a Joint Stipulation ( J.S. ) that addressed the disputed 20 issues. (Dkt. No. 27.) On July 14, 2009, this case was reassigned to Magistrate Judge 21 22 Rosenberg. (Dkt. No. 29.) Pursuant to 28 U.S.C. § 636(c), the parties consented 23 to proceed before Magistrate Judge Rosenberg on July 17 and 21, 2009. (Dkt. 24 Nos. 30-31.) The Court has taken the matter under submission without oral 25 argument. Having reviewed the entire file, the decision of the Commissioner is 26 affirmed. 27 /// 28 1 I. 2 PROCEDURAL BACKGROUND 3 On May 25, 2005, Glenn filed an application for disability insurance 4 benefits. A.R. 10. On April 27, 2005, Glenn filed an application for supplemental 5 security income benefits. Id. Both applications alleged an onset date of April 30, 6 2004. Id. The applications were denied initially and upon reconsideration. A.R. 7 19-20. An Administrative Law Judge ( ALJ ) conducted a hearing on November 8 27, 2006, at which Glenn, a medical expert and a vocational expert testified. A.R. 9 94-144. On December 21, 2006, the ALJ issued a decision denying benefits. 10 A.R. 7-14. Glenn requested review. A.R. 5. On June 13, 2007, the Appeals 11 Council denied the request for review. A.R. 2-4. 12 This lawsuit followed. 13 II. 14 STANDARD OF REVIEW 15 Pursuant to 42 U.S.C. § 405(g), this Court reviews the Commissioner s 16 decision to deny benefits. The decision will be disturbed only if it is not supported 17 by substantial evidence, or if it is based upon the application of improper legal 18 standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. 19 Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 20 Substantial evidence means more than a mere scintilla but less than a 21 preponderance it is such relevant evidence that a reasonable mind might 22 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 23 determining whether substantial evidence exists to support the Commissioner s 24 decision, the Court examines the administrative record as a whole, considering 25 adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the 26 evidence is susceptible to more than one rational interpretation, the Court must 27 defer to the Commissioner s decision. Moncada, 60 F.3d at 523. 28 2 1 III. 2 DISCUSSION 3 A. Disability 4 A person qualifies as disabled, and thereby eligible for such benefits, only 5 if his physical or mental impairment or impairments are of such severity that he is 6 not only unable to do his previous work but cannot, considering his age, 7 education, and work experience, engage in any other kind of substantial gainful 8 work which exists in the national economy. Barnhart v. Thomas, 540 U.S. 20, 9 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003). 10 B. ALJ Findings 11 Glenn has the following severe impairment: degenerative joint disease of 12 the right knee patellofemoral joint, status post right ankle ORIF. A.R. 12. Glenn 13 has the residual functional capacity ( RFC ) to lift 20 pounds and frequently lift 14 10 pounds. He can stand and walk for 4 hours of an 8-hour workday and sit for 6 15 hours. He can occasionally balance, stoop, climb, kneel, crouch and crawl. 16 Pushing and pulling would be limited to the same restrictions as lifting and 17 carrying. Id. The ALJ found that Glenn could perform his past relevant work as 18 dispatcher. A.R. 14. 19 C. Credibility 20 To determine whether a claimant s testimony regarding subjective pain or 21 symptoms is credible, an ALJ must engage in a two-step analysis. Lingenfelter 22 v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). 23 At step one, the ALJ must determine whether the claimant has presented 24 objective medical evidence of an underlying impairment which could reasonably 25 be expected to produce the pain or other symptoms alleged. Id. at 1036 26 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc). The 27 ALJ found that Glenn s medically determinable impairment could reasonably be 28 expected to produce the alleged symptoms. A.R. 13. 3 Second, if the claimant meets this first test, and there is no evidence of 1 2 malingering, the ALJ can reject the claimant s testimony about the severity of her 3 symptoms only by offering specific, clear and convincing reasons for doing so. 4 Lingenfelter, 504 F.3d at 1036 (citations omitted). In making a credibility 5 determination, the ALJ must specifically identify what testimony is credible and 6 what testimony undermines the claimant s complaints. Greger v. Barnhart, 464 7 F.3d 968, 972 (9th Cir. 2006) (citation omitted). The ALJ did not find malingering, but did find that Glenn s statements 8 9 concerning the intensity, persistence and limiting effects of these symptoms are 10 not entirely credible. A.R. 13. Glenn argues that the ALJ did not provide clear 11 and convincing reasons for discounting his credibility. J.S. at 5. The ALJ noted that Glenn s testimony was inconsistent with the objective 12 13 medical evidence, the examining physician s opinion and the medical expert s 14 opinion. A.R. 13-14. Substantial evidence supports this reason, and Glenn does 15 not contend otherwise. However, although the lack of objective medical evidence 16 is a factor that an ALJ can consider, it cannot form the sole basis for discounting 17 pain testimony. Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). The ALJ found that [a]t the hearing, the claimant complained of low back 18 19 pain but sat comfortably slouched in his chair in a position which placed much 20 added pressure on his lumbar spine. A.R. 13. Again, however, although the 21 ALJ s observations may be considered, they may not form the sole basis for 22 discrediting a person s testimony. Orn v. Astrue, 495 F.3d 625, 639-40 (9th Cir. 23 2007). The ALJ further noted that Glenn only takes aspirin for his pain symptoms 24 25 and has not seen a doctor for a long time. A.R. 13, 104, 121. Use of over-the- 26 counter pain medication may be considered in discounting pain testimony. See 27 Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007), cert. denied, 128 S. Ct. 28 /// 4 1 1068 (2008). An unexplained, or inadequately explained, failure to seek 2 treatment may support an adverse credibility finding. See Orn, 495 F.3d at 638. 3 Accordingly, the ALJ did not err. Moreover, given Glenn s testimony, any 4 error would be harmless. Stout v. Commissioner, 454 F.3d 1050, 1055 (9th Cir. 5 2006) (error is harmless if it is inconsequential to the ultimate nondisability 6 determination ). As discussed below, Glenn s testimony is consistent with an 7 ability to perform his past relevant work. 8 D. 9 Mental Impairment Glenn argues that the ALJ failed to rate his mental impairment. J.S. 8. 10 When the ALJ has found a medically determinable mental impairment (20 11 C.F.R. §§ 404.1520a(b)(1), 416.920a(b)(1)), the ALJ must rate the degree of 12 functional limitation in four broad functional areas: Activities of daily living; social 13 functioning; concentration, persistence, or pace; and episodes of 14 decompensation. 20 C.F.R. § 404.1520a(b)(2), (c)(3); id. § 416.920a(b)(2), 15 (c)(3). 16 Here, the ALJ did not find a medically determinable mental impairment. 17 A.R. 12. Therefore, the ALJ was not obligated to rate a mental impairment under 18 the regulations. Glenn points out that the medical expert reviewed the medical 19 records and testified Glenn has psychiatric diagnosis. A.R. 133-34. Glenn does 20 not cite, and the court is unable to locate, any psychiatric diagnosis in Glenn s 21 medical records.1 See A.R. 71-93. 22 23 24 25 26 27 28 E. Past Relevant Work At step four of the sequential analysis, the claimant has the burden to prove that he cannot perform his prior relevant work either as actually performed 1 At the hearing, Glenn testified that he did not know if he had mental problems. A.R. 111. Glenn testified that he was beaten in December 1982, which left a crease in his head. A.R. 113. However, he was subsequently able to perform his cab dispatcher work, most recently in 2003. A.R. 114; see also A.R. 60 (worked as cab dispatcher 1985-2001 and 2001-2003). His headaches were minimal as of the hearing on November 27, 2006). A.R. 114. 5 1 or as generally performed in the national economy. Carmickle v. Comm r of the 2 Soc. Sec. Admin., 533 F.3d 1155, 1166 (9th Cir. 2008) (citation omitted). Past 3 relevant work is work that the claimant has done within the past 15 years, that 4 was substantial gainful activity, and that lasted long enough for the claimant to 5 learn to do it. 20 C.F.R. § 404.1560(b)(1). 6 Although the burden of proof lies with the claimant at step four, the ALJ 7 still has a duty to make the requisite factual findings to support his conclusion. 8 Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001). The ALJ must make 9 specific findings as to the claimant s residual functional capacity, the physical 10 and mental demands of the past relevant work, and the relation of the residual 11 functional capacity to the past work. Id. at 845; Social Security Ruling 82-62.2 12 The Dictionary of Occupational Titles ( DOT ) is the best source for how a job is 13 generally performed. Pinto, 249 F.3d at 845. 14 Here, the ALJ made findings as to Glenn s RFC and stated that he 15 compared it with the physical and mental demands of his past relevant work as 16 cab dispatcher. A.R. 14. The ALJ relied on Glenn s description of the cab 17 dispatcher job as requiring no walking, standing for 1 hour, sitting for 6 hours, 18 reaching, and writing or typing. A.R. 14, 62. The ALJ concluded that Glenn could 19 perform his past relevant work as actually and generally performed. A.R. at 14. 20 Glenn argues that, even assuming the ALJ is correct in his conclusion that 21 Glenn is able to perform his past relevant work, the ALJ failed to make the 22 necessary specific findings to support that conclusion. J.S. at 14. 23 24 Even assuming that the ALJ could have written more on the subject, any error would be harmless because no reasonable ALJ could reach a different 25 26 27 28 2 Social Security rulings do not have the force of law. Nevertheless, they constitute Social Security Administration interpretations of the statute it administers and of its own regulations, and are given deference unless they are plainly erroneous or inconsistent with the Act or regulations. Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989). 6 1 disability determination on this record. See Stout, 454 F.3d at 1056. The 2 vocational expert testified that the cab dispatcher job is sedentary and semi- 3 skilled according to the DOT. A.R. 127. The vocational expert testified that a 4 claimant with Glenn s RFC could perform the cab dispatcher job. A.R. 128. 5 Moreover, the vocational expert testified that an individual with a more restrictive 6 RFC limited to sedentary work, not required to hold his head or neck in one 7 position for over an hour, could change position every hour, cannot perform fast- 8 paced production work, no operation of foot controls, and no exposure to dust, 9 fumes and gas would also be able to perform the cab dispatcher job. A.R. 128- 10 29. This testimony was consistent with Glenn s testimony. Glenn testified that 11 everybody s going in computer dispatch, what they call digital dispatch. A.R. 12 124. With computerized dispatch, [y]ou take the call from the customer, you type 13 it in, you dispatch it by pushing a button, and it goes up on the screen, and the 14 driver can choose the call he sees on his screen. A.R. 125. Glenn testified that 15 he had used the computer to dispatch cabs and, when asked, did not identify any 16 reason why he could not perform the cab dispatcher job with a computer. A.R. 17 125-26. Glenn testified that he could perform a sitting job with no foot controls in 18 an 8-hour workday so long has he could get up every two hours or so. A.R. 119. 19 IV. 20 ORDER 21 22 23 24 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. 25 26 DATED: August 21, 2009 ALICIA G. ROSENBERG United States Magistrate Judge 27 28 7

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