Dennis Alva v. Michael J. Astrue, No. 5:2008cv01827 - Document 18 (C.D. Cal. 2009)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton.The Court finds no error with regard to Plaintiffs third issue. The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice.IT IS SO ORDERED. (rp)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 DENNIS ALVA, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 08-01827-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for 20 disability benefits. 21 consented that the case may be handled by the Magistrate Judge. 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the record before 24 the Commissioner. 25 ( JS ), and the Commissioner has filed the certified Administrative 26 Record ( AR ). Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the Joint Stipulation 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge ( ALJ ) erred in his 1 analysis of the vocational issues and whether the testimony 2 of the vocational expert is flawed; 3 2. Whether the ALJ s analysis of Plaintiff s testimony and 4 subsequent 5 sufficient; and 6 3. rejection of that testimony is legally Whether the ALJ gave appropriate weight to the opinions of 7 Plaintiff s treating physicians and evaluated all of the 8 medical evidence. 9 (JS at 3.) 10 11 This Memorandum Opinion will constitute the Court s findings of 12 fact and conclusions of law. After reviewing the matter, the Court 13 concludes that the decision of the Commissioner must be affirmed. 14 15 I 16 THERE IS NO ERROR AT STEP FIVE OF THE SEQUENTIAL EVALUATION 17 At Step Five of the sequential evaluation process (see 20 C.F.R. 18 §404.1520(a)), after it is determined at the preceding step that the 19 claimant may not perform his or her past relevant work (see 20 C.F.R. 20 §404.1520(f)), the ALJ must determine whether the claimant is able to 21 do 22 ( RFC ), age, education, and work experience. 23 is identified, the individual is found to be not disabled. any other work considering his residual functional capacity If other specific work 24 In this case, the ALJ adopted the testimony of a vocational 25 expert ( VE ) at the hearing that, at Step Five, there were jobs in 26 the national economy which were identified as being available to 27 Plaintiff. 28 Plaintiff challenges the Step Five finding, and the Court has 2 1 2 discerned the following issues contained within this challenge: 1. That the jobs identified do not specifically allow Plaintiff 3 the opportunity to lie down during lunch breaks, which was 4 included within the RFC as determined by the ALJ. (See AR at 5 19.) 6 because of an inability to lie down during lunch breaks, the 7 identified jobs constitute a deviation from the descriptions 8 contained in the Dictionary of Occupational Title ( DOT ), 9 which 10 11 deviation is not sufficiently explained in the testimony of the VE; 2. 12 13 Essentially, Plaintiff appears to be asserting that That the identified jobs are not appropriately classified as light exertional work based on the VE s testimony; 3. As to one of the jobs (information clerk) identified at Step 14 Five, there is a deviation because this occupation 15 assertedly requires significant standing and/or walking 16 which exceeds the RFC as determined by the ALJ. (See AR at 17 19, JS at 5.) 18 19 A. 20 Under Applicable Law. applicable regulations, the Commissioner takes 21 administrative notice of reliable job information available from 22 various governmental and other publications, which includes the DOT. 23 (See 20 C.F.R. §404.1566(d)(1)); Massachi v. Astrue, 486 F.3d 1149, 24 1152, n.8 (9th Cir. 2007).) 25 The Ninth Circuit had occasion to extensively discuss the matter 26 of job requirements which deviate from DOT descriptions, in the case 27 of Johnson v. Shalala, 60 F.3d 1428 (9th Cir. 1995). 28 identified occupations classified in the DOT as light work, which is 3 There, the VE 1 considered a more strenuous exertional category than sedentary. 2 Although the ALJ had determined that the claimant in that case was 3 capable of only sedentary work (see 60 F.3d at 1431, n.1), the ALJ 4 adopted the VE s identification of the two available jobs at Step 5 Five, which had an RFC requiring the ability to perform light work. 6 The appellate court rejected the argument that the claimant in that 7 case was precluded from performing these jobs because she did not have 8 the exertional RFC to perform light work, but only sedentary work. 9 The Court held that its prior decision in Terry v. Sullivan, 903 F.2d 10 1273, 1277 (9th Cir. 1990), 11 [S]upport[ed] the proposition that although the DOT raises 12 a 13 rebuttable. 14 expert testimony which contradicts the DOT, but only insofar 15 as the record contains persuasive evidence to support the 16 deviation. 17 presumption as to the job classification, it is We make explicit here that an ALJ may rely on (Id. at 1435.) 18 19 Further, the appellate court noted that the DOT is not the only 20 source of admissible information concerning jobs (Id. at 1435, citing 21 Barker v. Shalala, 40 F.3d 789, 795 (6th Cir. 1994)), but that the 22 Commissioner may take notice of reliable job information, including 23 the services of a vocational expert. (Id., citing Whitehouse v. 24 Sullivan, 949 F.2d 1005, 1007 (8th Cir. 1991).) 25 Finally, the Ninth Circuit cited with approval the opinion of a 26 Sixth Circuit panel in Conn v. Secretary of Health and Human Services, 27 51 F.3d 607, 610 (6th Cir. 1995) for the proposition that, 28 The Sixth Circuit recently held in a case similar to 4 1 ours, that the ALJ was within his rights to rely solely on 2 the vocational expert s testimony. 3 regulations do not require the Secretary or the expert to 4 rely on classifications in the Dictionary of Occupational 5 Titles. (Citing Conn, 51 F.3d at 610.) 6 The Social Security (60 F.3d at 1435.) 7 8 B. 9 The ALJ adopted the VE s conclusion that Plaintiff could perform 10 11 Analysis. the following jobs: 1. 12 Assembler, Small Products I (any industry), Code 706.684022; 13 2. Information Clerk, Code 237.367-018; and 14 3. Cashier II (Clerical), Code 211.462-010. 15 (AR 21.) 16 17 Plaintiff complains that there is no basis for the conclusion 18 that these jobs both require light exertion. 19 dispositive answer is that the DOT itself classifies each of these 20 jobs as requiring light exertion. 21 require specific or expert testimony. 22 But the simple and There is no deviation which would Plaintiff also argues (see JS at 5) that the identified job of 23 Information Clerk requires significant 24 required of this job, which exceeds the ALJ s determination that 25 Plaintiff is capable of standing and/or walking three to four hours 26 out of eight in a workday. (See AR at 19.) 27 is easily controverted by reference to the DOT itself, in which the 28 job description is fully described as follows: 5 standing and/or walking But, again, this argument 1 Provides travel information for bus or train patrons: 2 Answers inquiries regarding departures, arrivals, stops, and 3 destinations 4 routes, services, and accommodations available. 5 patrons with timetables and travel literature. Computes and 6 quotes rates for interline trips, group tours, and special 7 discounts for children and military personnel, using rate 8 tables. of scheduled buses or trains. Describes Furnishes 9 10 Finally, the Court will address Plaintiff s assertion that these 11 jobs are not available to him because, as the ALJ found, he must be 12 afforded the opportunity to lie down during lunch breaks, and there is 13 no indication in these job descriptions that this would be available 14 to Plaintiff. 15 set forth in the DOT that none of these jobs reference whether an 16 individual would be permitted to lie down during a lunch break. 17 logical extension of Plaintiff s argument is that he is disabled 18 because there cannot be a showing that he would be allowed to lie down 19 during a lunch break in any job. 20 question to ask whether identification of these three jobs at Step 21 Five constitutes a deviation from the job descriptions contained in 22 the DOT. 23 that Plaintiff could lie down in his car during lunch breaks, and the 24 record demonstrates that Plaintiff does own a car. (JS at 6.) 25 Plaintiff s Reply to this argument, he argues that there was no 26 specific evidence that he could actually lie down in his car, because 27 there would be no indication as to where he could park it, and similar 28 information. The Court determines that this is a de minimis argument. The Court would note from its perusal of the many jobs The In any event, it is a pertinent The Commissioner s answer in the JS is that the VE testified 6 In 1 As indicated, none of the job descriptions in the DOT address whether 2 an individual can lie down during a lunch break. 3 testifying within his expertise when he asserted that Plaintiff would 4 be able to lie down, if that were a limitation, and could still 5 perform these jobs. The Court does not perceive that the necessity of 6 lying down during a lunch break, for some unspecified amount of time, 7 constitutes a deviation from a DOT job title which requires specific 8 expert testimony. 9 10 The VE was certainly For the foregoing reasons, the Court determines that there is no merit to Plaintiff s first issue. 11 12 II 13 THE ALJ DID NOT ERR IN DEPRECIATING PLAINTIFF S CREDIBILITY 14 In his second issue, Plaintiff asserts that the ALJ erred in 15 depreciating his credibility as to excess pain. Indeed, the ALJ 16 concluded, generally, that Plaintiff s statements concerning the 17 intensity, persistence and limiting effects of the symptoms are not 18 credible to the extent they are inconsistent with the [RFC] for the 19 reasons explained below. (AR 20.) 20 21 A. Applicable Law. 22 Subjective complaints of pain or other symptomology in excess of 23 what an impairment would normally be expected to produce are subject 24 to the credibility assessment of an ALJ. 25 F.3d 853, 856-57 (9th Cir. 2001). An ALJ s assessment of pain severity 26 and claimant credibility is entitled to great weight. 27 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 F.2d 28 528, 531 (9th Cir. 1985). Rollins v. Massanari, 261 Weetman v. When determining credibility, the ALJ may 7 1 not reject a claimant s subjective complaints based solely on a lack 2 of 3 severity. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991); see 4 also, Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001). 5 order 6 credible, an ALJ must specifically make findings that support this 7 conclusion, 8 convincing reasons. 9 Secretary of Health & Human Services, 846 F.2d 581, 584 (9th Cir. 1988) 10 (requiring the ALJ to put forward specific reasons for discrediting 11 a claimant s subjective complaints). objective to medical find that Bunnell, evidence a to claimant s 947 F.2d at fully corroborate subjective 345, and the complaints provide alleged are clear In not and Rollins, 261 F.3d at 857; see also Varney v. 12 The absence of objective evidence to corroborate a claimant s 13 subjective complaints, however, does not by itself constitute a valid 14 reason for rejecting her testimony. Tonapetyan v. Halter, 242 F.3d at 15 1147. 16 subjective testimony of excess symptomology. 17 Apfel, 161 F.3d 599, 602 (9th Cir. 1998). 18 However, weak objective support can undermine a claimant s Implementing regulations prescribe See e.g., Tidwell v. factors which should be 19 considered in determining credibility as to self-reported pain and 20 other symptoms. 21 considered are specified to include a claimant s daily activities 22 ( ADL ); the location, duration, frequency and intensity of pain or 23 other symptoms; precipitating and aggravating factors; the type, 24 dosage, effectiveness and side effects of any medication taken; 25 treatment received; and measures taken to relieve pain. In 20 C.F.R. §404.1529(c)(3), the factors to be 26 The regulations also specify that consideration should be given 27 to inconsistencies or contradictions between a claimant s statements 28 and the objective evidence: 8 1 We will consider your statements about the intensity, 2 persistence, and limiting effects of your symptoms, and we 3 will evaluate your statements in relation to the objective 4 medical 5 conclusion as to whether you are disabled. We will consider 6 whether there are any inconsistencies in the evidence and 7 the extent to which there are any conflicts between your 8 statements and the rest of the evidence, including your 9 history, the signs and laboratory findings, and statements 10 by your treating or nontreating source or other persons 11 about how your symptoms affect you. 12 evidence and other evidence, in reaching a (20 C.F.R. §404.1529(c)(4).) 13 14 B. Analysis. 15 The ALJ 16 17 1. the following factors in assessing Contrasting the objective medical evidence with Plaintiff s claim; 2. 20 21 upon Plaintiff s credibility with regard to excess pain complaints: 18 19 relied The nature and extent of Plaintiff s activities of daily living ( ADL ); and 3. Plaintiff s own statements regarding the extent of his pain. 22 23 First, Plaintiff clearly testified at the hearing that he has 24 learned to tolerate his back pain. (AR 41.) 25 relevant in the credibility analysis, and while Plaintiff contends 26 that the ALJ did not rely upon this factor, it is clear that the ALJ s 27 determination specifically cited Plaintiff s own statements. (AR 20.) 28 The ALJ made extensive observations about the nature and extent 9 Certainly, this is 1 of Plaintiff s ADL. This is a legitimate and relevant factor in 2 determining whether subjective pain complaints are to be accorded full 3 credibility, according to regulations and case law. Indeed, Plaintiff 4 does not seem to argue the relevance of this point, but instead 5 focuses on Plaintiff s statement that he spends significant time 6 sitting, stretched out, or that he sometimes naps during the day. (AR 7 20.) 8 subjective 9 applicability of the ALJ s consideration of Plaintiff s ADL. (See AR The ALJ acknowledged these claims as part of Plaintiff s contentions; however, this does not depreciate the 10 at 39, 181, 278-280.) In essence, Plaintiff s assessment of his own 11 exertional limitations is significantly more conservative than the 12 exertional ability required for the ADL which Plaintiff conceded he is 13 able to do. 14 The Court finds that the ALJ did not fall short of requirements 15 under regulations and Social Security rulings (e.g., S.S.R. 96-7p, and 16 96-8p) in determining to depreciate Plaintiff s credibility. 17 reasons provided are supported by the record and are sufficient 18 indicia to support a credibility finding. 19 second issue has no merit. The Consequently, Plaintiff s 20 21 III 22 THE ALJ DID NOT ERR IN HIS EVALUATION OF THE OPINIONS 23 OF PLAINTIFF S TREATING PHYSICIANS 24 In Plaintiff s third issue, he asserts that the ALJ failed to 25 give specific and legitimate reasons to reject the opinion of his 26 treating orthopedist, Dr. Yegge, during a period of time in which Dr. 27 Yegge found Plaintiff to be temporarily totally disabled. (JS at 12- 28 13.) 10 1 Plaintiff asserts that, for example, the ALJ failed to consider 2 a December 1, 2004 opinion of Dr. Yegge in which it was opined that 3 Plaintiff was permanent and stationary. (JS at 12, citing AR 243.) In 4 fact, that citation is to a September 19, 2007 report of Dr. Dasika. 5 Further, as the Commissioner notes (see JS at 14, n.3), as of November 6 2004, Dr. Wood took over treatment of Plaintiff from Dr. Yegge, at 7 Kaiser. 8 no longer with the office. (AR 292.) 9 that Dr. Wood found Plaintiff to be temporarily totally disabled on 10 The report of November 11, 2004 indicates that Dr. Yegge is Nevertheless, it would appear October 18, 2004. (AR 299.) 11 While Plaintiff complains that the ALJ failed to at all discuss 12 records from his treating physicians at Kaiser Permanente (see JS at 13 12), in fact, the ALJ noted that Dr. Crane of Kaiser rendered an 14 opinion in December 2003 that Plaintiff did not have any limiting 15 conditions, and that no further followup would be necessary. (AR 20, 16 414.) 17 An examination of Dr. Yegge s treatment notes from January 2004 18 indicated that Plaintiff was diagnosed with condromalacia. (AR 317- 19 327.) But, Dr. Yegge also noted during his examination that Plaintiff 20 could perform a full squat, and his straight leg raising was negative. 21 (AR 322-325.) 22 and knee areas was essentially normal. (AR 322-325.) The ALJ so noted 23 in his decision. (AR 20.) 24 during 25 disabled was controverted by the examinations and conclusions of Dr. 26 Yegge and Dr. Yogaratham. (AR 334-340.) 27 on independent examinations. 28 the The remainder of the examination in the lumbar spine time of this Clearly, the opinion of Dr. Wood that examination, Plaintiff was temporarily These conclusions were based The ALJ also relied upon the testimony of the medical expert 11 1 ( ME ) (AR 31-36), whose conclusion was that Plaintiff was not 2 disabled, based upon his examination of the medical records. 3 was entitled to rely upon the non-examining ME, whose testimony was 4 supported by other evidence in the record and was consistent with it. 5 See Morgan v. Commissioner of Social Security Administration, 169 F.3d 6 595, 600 (9th Cir. 1999). 7 The ALJ Thus, the Court concludes that the ALJ properly weighed the 8 somewhat conflicting medical evidence, concluded thereupon that 9 Plaintiff was not disabled, and adopted an RFC which was reasonably 10 supported by Plaintiff s examining and treating doctors. 11 reasons, even though the ALJ did not specifically mention Dr. Wood s 12 statement about Plaintiff being disabled, he did in fact adequately 13 consider all of the medical evidence in reaching his conclusion. 14 error which might lie in the failure to specifically discuss Dr. Wood 15 is harmless. 16 1990). 17 18 19 20 21 For these See Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. For the foregoing reasons, the Court finds no error with regard to Plaintiff s third issue. The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 22 23 24 Any DATED: September 15, 2009 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 25 26 27 28 12

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