Nathan L. Maestas Sr. v. Michael J. Astrue, No. 5:2009cv00487 - Document 15 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 NATHAN L. MAESTAS SR., ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the ) Social Security Administration, ) ) Defendant. ) ___________________________________) NO. EDCV 09-487-MAN MEMORANDUM OPINION AND ORDER 17 18 19 Plaintiff filed a Complaint on March 12, 2009, seeking review of 20 the denial by the Social Security Commissioner ( Commissioner ) of 21 plaintiff s applications for supplemental security income ( SSI ) and 22 disability insurance benefits ( DIB ). On April 7, 2009, the parties 23 consented to proceed before the undersigned United States Magistrate 24 Judge pursuant to 28 U.S.C. § 636(c). The parties filed a Joint 25 Stipulation on October 14, 2009, in which: 26 reversing 27 alternatively, remanding the case for a new administrative hearing; and 28 defendant asks that the Commissioner s decision be affirmed. the Commissioner s decision and plaintiff seeks an order awarding benefits or, The Court 1 has taken the parties Joint Stipulation under submission without oral 2 argument. 3 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 4 5 6 Plaintiff filed his applications for SSI and DIB on September 21, 7 2006, alleging an inability to work since September 15, 2004, due to 8 mental 9 anxiety. impairments from psychotic disorders, depression, (Administrative Record ( A.R. ) 70, 60.) and high His past relevant 10 work ( PRW ) includes: 11 captain; work center supervisor; industrial truck operator; manager, 12 airport; deliverer, merchandise; and construction worker II. 13 36.) diesel mechanic helper; crash chief and crash (A.R. 34, 14 15 Plaintiff s DIB and SSI applications were denied initially on 16 December 26, 2006, and upon reconsideration on May 8, 2007. (A.R. 70.) 17 On June 10, 2008, plaintiff, who was represented by counsel, testified 18 at a hearing before Administrative Law Judge Mason D. Harrell, Jr. 19 ( ALJ ). 20 applications (A.R. 70-78), and the Appeals Counsel subsequently denied 21 plaintiff s request for review of the ALJ s decision on February 3, 2009 22 (A.R. 1-3). 23 disability claims before Administrative Law Judge Lowell Fortune ( ALJ 24 Fortune ), who found that plaintiff was not disabled as defined under 25 the Social Security Act from September 15, 2004, through the date of his 26 decision on August 19, 2006. (A.R. 41-53.) On July 11, 2008, the ALJ denied plaintiff s Plaintiff had a previous hearing based on the same (A.R. 62.) 27 28 2 SUMMARY OF ADMINISTRATIVE DECISION 1 2 The ALJ found that plaintiff has not engaged in substantial gainful 3 4 activity since his alleged disability onset date. (A.R. 72.) 5 6 The ALJ determined that plaintiff has a combination of severe 7 mental impairments consisting of psychotic disorder, not otherwise 8 specified, mood disorder, not otherwise specified, and polysubstance 9 dependence, which was in remission at the time of the hearing. (A.R. 10 72.) 11 combination of impairments that meets or medically equals one of the 12 listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. 13 73.) The ALJ found that plaintiff did not have an impairment or (A.R. 14 15 The ALJ found that the testimony of both plaintiff and his mother 16 was only credible to the extent it described the work plaintiff was 17 capable of performing. 18 admitted that plaintiff could perform household chores and yard work, go 19 to doctor appointments, drive a car, and go out for social functions, 20 such as seeing movies or going to church. 21 additional evidence and testimony provided by plaintiff and his mother 22 was insufficient to overcome the presumption that plaintiff could work 23 at the residual functional capacity ( RFC ) level previously determined 24 by ALJ Fortune. (A.R. 75.) Both plaintiff and his mother Id. The ALJ found that the (A.R. 76, 62.) 25 26 The ALJ found that plaintiff had the RFC to perform work at any 27 exertional level with the following 28 Plaintiff: can perform simple repetitive tasks consisting of object 3 non-exertional limitations. 1 oriented work; can have occasional non-personal contact with coworkers 2 and supervisors, but should remain precluded from working with the 3 public or having responsibility for the safety of others; and should not 4 operate heavy machinery or potentially dangerous equipment. (A.R. 74.) 5 6 The ALJ found that plaintiff had PRW as a construction site cleaner 7 and remains capable of performing that work. 8 concluded that plaintiff has not been under a disability, as defined by 9 the Social Security Act, from September 15, 2004, through the date of 10 the ALJ s decision. (A.R. 77.) The ALJ thus (Id.) 11 12 STANDARD OF REVIEW 13 14 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 15 decision to determine whether it is free from legal error and supported 16 by substantial evidence in the record as a whole. 17 F.3d 625, 630 (9th Cir. 2007). 18 evidence as a reasonable mind might accept as adequate to support a 19 conclusion. 20 a mere scintilla but not necessarily a preponderance. 21 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). 22 record can constitute substantial evidence, only those reasonably 23 drawn from the record will suffice. 24 1063, 1066 (9th Cir. 2006)(citation omitted). Orn v. Astrue, 495 Substantial evidence is such relevant Id. (citation omitted). The evidence must be more than Connett v. While inferences from the Widmark v. Barnhart, 454 F.3d 25 26 Although this Court cannot substitute its discretion for that of 27 the Commissioner, the Court nonetheless must review the record as a 28 whole, weighing both the evidence that supports and the evidence that 4 1 detracts from the [Commissioner s] conclusion. Desrosiers v. Sec y of 2 Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 3 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 4 responsible for determining credibility, resolving conflicts in medical 5 testimony, and for resolving ambiguities. 6 1035, 1039-40 (9th Cir. 1995). The ALJ is Andrews v. Shalala, 53 F.3d 7 8 9 The Court will uphold the Commissioner s decision when the evidence is susceptible to more than one rational interpretation. Burch v. 10 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005. However, the Court may 11 review only the reasons stated by the ALJ in his decision and may not 12 affirm the ALJ on a ground upon which he did not rely. 13 at 630; see also Connett, 340 F.3d at 874. 14 the Commissioner s decision if it is based on harmless error, which 15 exists only when it is clear from the record that an ALJ s error was 16 inconsequential to the ultimate nondisability determination. Robbins 17 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 18 Comm r, 454 F.3d 1050, 1055-56 (9th Cir. 2006)); see also Burch, 400 19 F.3d at 679. Orn, 495 F.3d The Court will not reverse 20 21 DISCUSSION 22 23 Plaintiff alleges the following three issues: (1) whether the ALJ 24 properly considered the type, dosage, and side effects of plaintiff s 25 prescribed medications; (2) whether the ALJ properly considered the 26 mental and physical demands of plaintiff s PRW; and (3) whether the ALJ 27 properly considered the lay witness statement of plaintiff s mother. 28 (Joint Stipulation ( Joint Stip. ) at 3.) 5 Defendant asserts that the 1 ALJ s decision is proper and emphasizes that ALJ Fortune previously 2 determined that plaintiff was not disabled as of August 19, 2006, thus 3 creating a presumption of continuing nondisability after that date. 4 (Joint Stip. at 5.) 5 plaintiff after first addressing the impact of ALJ Fortune s August 19, 6 2006 decision. The Court will address the three issues raised by 7 8 I. The Previous Decision By ALJ Fortune Creates A Presumption Of Nondisability, Which Plaintiff Must Rebut In Order To Be Found 9 Disabled. 10 11 12 Although applied less rigidly to administrative than to judicial 13 proceedings, principles 14 administrative decisions. 15 Cir. 1995); Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988); Lyle v. 16 Sec y of Health and Human Servs., 700 F.2d 566, 568 (9th Cir. 1983). A 17 final a 18 presumption that the claimant retains the ability to work after the date 19 of the prior administrative decision. 20 Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); Lyle, 700 F.2d at 568. 21 This presumption of continuing non-disability may be overcome by a 22 showing of changed circumstances. See Lester, 81 F.3d at 827; Chavez, 23 844 F.2d at 693. determination that of res judicata nevertheless apply to See Lester v. Chater, 81 F.3d 821, 827 (9th a claimant is not disabled creates See Schneider v. Comm r of Soc. 24 25 If a claimant does not meet his burden to adduce proof of change 26 in his medical condition or other changed circumstances, such as a new 27 medically-determinable impairment, an increase in the severity of an 28 existing impairment, or a change in his age category, the Commissioner 6 1 is not obliged to make a de novo determination of non-disability, even 2 when the burden of establishing disability otherwise would fall to the 3 Commissioner. 4 1378, 5 disability 6 Commissioner at step five, as it normally does, because the unappealed 7 denial of the claimant s earlier application created a presumption of 8 non-disability that must be overcome by the claimant s showing of 9 changed circumstances, and where the ALJ permissibly concluded the 10 claimant had produced no reliable medical evidence that he was disabled, 11 the claimant had not met that burden); Lyle, 700 F.2d at 568-569 12 (holding 13 determined 14 circumstances to overcome the presumption that his ability to do light 15 work persisted, the absence of proof of change was enough to meet the 16 Secretary s burden to show the claimant could perform alternative work; 17 the Secretary was not required again [to] meet his burden de novo ). See Booz v. Sec y of Health and Human Servs., 734 F.2d 1379-80 (9th Cir. 1984)(holding that remained with the and that the when the claimant claimant second had the did administrative presented no burden not law to shift judge evidence of prove to the properly changed 18 19 In the present case, plaintiff had a previous hearing before ALJ 20 Fortune on the same claims of disability as those addressed in the ALJ 21 decision now before this Court for review. 22 Fortune found that plaintiff suffered from severe impairments of 23 psychotic 24 otherwise specified, and polysubstance dependence, in remission. 25 59.) 26 treating physician, the consultative examining physicians requested by 27 the State Agency, and the testifying medical expert. (A.R. 60-62.) ALJ 28 Fortune ultimately concluded that plaintiff was capable of performing disorder, not otherwise In his 2006 decision, ALJ specified, mood disorder, not (A.R. ALJ Fortune expressly addressed the opinions of plaintiff s 7 1 his PRW and, thus, was not disabled from September 15, 2004, through the 2 date of the decision on August 19, 2006. 3 Council denied review of ALJ Fortune s decision (A.R. 70), and plaintiff 4 did not seek judicial review. 5 became the final decision of the Commissioner and created a rebuttable 6 presumption of continuing non-disability. (A.R. 62.) The Appeals Accordingly, ALJ Fortune s decision 7 8 Nowhere in the Joint Stipulation does plaintiff offer evidence of 9 changed circumstances or that his condition has worsened since ALJ 10 Fortune s 2006 decision. 11 plaintiff was responding well to medications, and he observed that 12 plaintiff was stable with meds and feeling well. 13 226, 227, 233, 234, 235.) 14 decision, the ALJ found that: [i]n activities of daily living, . . . 15 claimant has mild restriction. In social functioning, the claimant has 16 moderate difficulties. 17 pace, the claimant has moderate difficulties. 18 decompensation, 19 decompensation. 1 20 adopted the RFC determined by ALJ Fortune. 21 specifically noted that plaintiff was found not disabled by ALJ Fortune, the Plaintiff s treating physician noted that (A.R. 201, 202, Just as ALJ Fortune found in his 2006 With regard to concentration, persistence or claimant has As for episodes of experienced (A.R. 73; see also A.R. 59-60.) one episode of The ALJ accordingly (A.R. 77.) The ALJ 22 23 24 25 26 27 28 1 In his 2006 decision, ALJ Fortune found that plaintiff suffered one episode of decompensation on September 15, 2004, as identified by the testifying medical expert Dr. Glassmire. (A.R. 29, 61.) In the decision before this Court for review, the ALJ identified an instance of intervention, in February 2006, when plaintiff was treated on an outpatient basis; this episode falls outside the claimed disability period. (A.R. 76, 204-06.) The ALJ also acknowledged plaintiff s claim that he suffered a separate episode of decompensation in or about June 2007, following the cessation of his Risperdal prescription in April 2007, and that he felt better as of August 2007, after he resumed taking Risperdal and started taking Depakote. (A.R. 46-47, 50, 73, 75.) 8 1 and since that time, plaintiff has submitted minimal and routine 2 treatment notes, which were insufficient to overcome the presumption of 3 unchanged circumstances. (A.R. 76.) 4 5 Accordingly, ALJ Fortune s findings regarding 6 disability are entitled to res judicata effect. 7 plaintiff s 844 F.2d. See A.R. 76; Chavez, 8 9 10 II. The ALJ Properly Considered The Type, Dosage, And Side Effects Of Plaintiff s Prescribed Medications. 11 12 Pursuant to SSR 96-7p, an ALJ must consider the type, dosage, 13 effectiveness, and side effects of any medication the individual takes 14 or has taken to alleviate pain or other symptoms. 15 only consider those medication side effects that have a significant 16 impact on an individual s ability to work. 17 F.3d 813, 817-18 (9th Cir. 1993)(citation omitted). The claimant bears 18 the burden of proving that a medication s side effects are disabling. 19 Short v. Astrue, 648 F. Supp. 2d 1185, 1191 (C.D. Cal. 2009); see also 20 Thomas v. Barnhart, 278 F.3d 947, 960 (9th Cir. 2002)(rejecting claim 21 that administrative law judge improperly excluded the side effects of 22 medication, because there was no objective evidence that the claimant s 23 medications caused the side effects she alleged and her testimony in 24 this respect properly was found not credible); Miller v. Heckler, 770 25 F.2d 845, 849 (9th Cir. 1985)(rejecting challenge to administrative law 26 judge s finding that claimant s medications did not preclude him from 27 working, when claimant did not produce any clinical evidence showing 28 that narcotics use impaired his ability to work, and thus, he did not 9 However, an ALJ need Erickson v. Shalala, 9 1 meet his burden of proving that his claimed impairment was disabling). 2 Plaintiff contends that the ALJ failed to properly take into 3 4 consideration 5 medications. 6 Commissioner, 7 medication side effects that would affect his ability to work, whether 8 in 9 Stipulation. his the type, dosage, and (Joint Stip. at 4.) however, disability effects of prescribed During the proceedings before the plaintiff reports, side failed his to hearing list or testimony, discuss or (A.R. 2-26, 29-31, 43-53, 148, 171, 196.) the any Joint In fact, when 10 plaintiff 11 repeatedly indicated none when asked to state whether his medications 12 caused him any side effects. 13 the exception of one notation of dry mouth and difficulty in swallowing 14 due to a medication that was then discontinued (A.R. 203), plaintiff s 15 treating physician repeatedly reported that plaintiff did not have side 16 effects from his medications and was feeling well. 17 226, 227, 233, 234, 235.) 18 pending before the Commissioner, not only did not claim to suffer from 19 medication side effects but expressly represented that he did not suffer 20 any side effects, the ALJ did not err by failing to mention any issue 21 regarding side effects from plaintiff s medications. See Osenbrock v. 22 Apfel, error 23 administrative law judge s reliance on hypothetical to vocational expert 24 that omitted medication side effects when the medical records did not 25 contain any evidence of side effects severe enough to interfere with 26 [the claimant s] ability to work and the only side effects indicated by 27 the claimant at the hearing were dozing off and dry mouth). listed 240 F.3d his medications 1157, in his disability (A.R. 148, 171, 196.) reports, he Additionally, with (A.R. 201, 202, Given that plaintiff, while this case was 1164 (9th 28 10 Cir. 2000)(no found in Plaintiff now proffers a 1 post hoc argument premised on four 2 adjustments to his medications. 3 medications twice were increased and twice were decreased, the ALJ 4 should 5 decompensation.2 6 that four separate episodes of decompensation can be inferred from the 7 following changes made to his medications: 8 dosage from 2 mg to 3 mg on July 6, 2006 (A.R. 207-208); (2) change in 9 Wellbutrin dosage from 150 mg to 200 mg on February 2, 2006 (A.R. 208); 10 (3) change in Risperdal dosage from 3 mg to 2 mg on February 12, 2007 11 (A.R. 228); and (4) a purported increase in plaintiff s Depakote dosage 12 on September 5, 2007 (A.R. 236). 13 alterations 14 decompensation. have found in that Plaintiff asserts that, because his plaintiff (Joint Stip. at 3.) his medication suffered four episodes of Specifically, plaintiff asserts (1) change in Risperdal Plaintiff asserts that each of these can be considered episodes of (Joint Stip at 3.) 15 16 As noted above, to rebut the presumption of nondisability created 17 by 18 circumstances since the previous decision. See Lester, 81 F.3d at 827; 19 Chavez, 844 F.2d at 693. 20 asserted 21 decompensation that rebut the presumption is wholly unpersuasive. 22 threshold matter, two of the four claimed episodes of decompensation 23 -- resting on the February and July 2006 alterations in medication -- 24 occurred: ALJ Fortune s changes decision, in his plaintiff must demonstrate changed Plaintiff s assertion that the above-noted medication establish four episodes of As a before ALJ Fortune issued his decision and within the time 25 2 26 27 28 The Code of Federal Regulations defines a period of decompensation as exacerbations or temporary increases in symptoms or signs accompanied by a loss of adaptive functioning, as manifested by difficulties in performing activities of daily living, maintaining social relationships, or maintaining concentration, persistence, or pace. 20 C.F.R. § 404, Subpt. P, App. 1, 12.00(C)(4). 11 1 frame adjudicated by ALJ Fortune, who found that plaintiff was not 2 disabled through August 19, 2006; and predate the closed period of 3 disability in issue here, i.e., August 19, 2006, through October 2007. 4 Thus, these two medication adjustments have no bearing on the validity 5 of the ALJ s decision. 6 7 Of the two remaining alterations to plaintiff s medications, one 8 involved a decrease in plaintiff s medication on February 12, 2007; 9 plaintiff s treating physician specifically noted that plaintiff was 10 feeling well with his current medications on that date. (A.R. 226.) 11 The record, thus, flatly refutes any inference that the alteration of 12 medication on that date evidences an episode of decompensation. 13 With respect to the remaining instance, a September 5, 2007 14 15 prescription cited by plaintiff, plaintiff testified that: he last had 16 an episode of decompensation approximately one month after his physician 17 took him off Risperdal in April 20073; his physician put him back on 18 Risperdal, which caused an improvement; and because he wasn t fully 19 improved as of August 2007, she added a Depakote prescription, initially 20 for 500 milligrams, which then was increased to 1,000 milligrams. (A.R. 21 46-47, 50.) The medical record on which plaintiff now relies (A.R. 236) 22 shows, however, that plaintiff was prescribed 500 mg. of Depakote on 23 July 11, 2007, and was prescribed the same dosage again on September 5, 24 2007, October 31, 2007, April 2, 2007, March 11, 2008, and May 5, 2008. 25 In short, the record does not support plaintiff s assertion of a 26 significant alteration in his Depakote prescription on September 5, 27 3 28 Plaintiff s testimony was inconsistent regarding whether this breakdown occurred in May or June 2007. (A.R. 46, 50.) 12 1 2007. (Joint Stip. at 3.) 2 medication change, the ALJ expressly acknowledged plaintiff s testimony 3 regarding 4 discontinuance 5 resumption of Risperdal and addition of Depakote to his medication 6 regimen. the In any event, even if there had been such a above-noted of his (A.R. 73, 75.) episode Risperdal of decompensation prescription and following the the subsequent The ALJ committed no error in this respect. 7 8 Plaintiff has proffered no basis for finding that the ALJ erred in 9 connection with his consideration of any side effects of plaintiff s 10 medications and/or episodes of decompensation. 11 instances of record relevant to the closed period in issue, aside from 12 the 2007 incident described by plaintiff and accepted by the ALJ, in 13 which plaintiff experienced an exacerbation or increase in symptoms 14 accompanied with a loss of adaptive functioning during the claimed 15 disability period. Accordingly, the ALJ did not, as plaintiff contends, 16 fail 17 plaintiff s medications. to consider properly the type, dosage, There are no reported and side effects of 18 19 20 III. Reversal Is Not Warranted Based On The ALJ s Finding That Plaintiff Can Perform His Past Relevant Work. 21 22 Unless a claimant s prior work constituted substantial gainful 23 activity, the work cannot qualify as past relevant work. See 20 24 C.F.R. § 416.965(a); Vertigan v. Halter, 260 F.3d 1044, 1051 (9th Cir. 25 2001). 26 does not have the residual functional capacity to engage in any of his 27 PRW. 20 C.F.R. §§ 404.1520(e), 416.920(e). Generally, a vocational 28 expert s opinion regarding a claimant s ability to perform his PRW, At step four, a claimant bears the burden of showing that he 13 1 without specifying whether such finding is based on the claimant s 2 ability to perform his actual prior job or the prior job as it is 3 generally performed, is sufficient for a step four finding. 4 Massanari, 249 F.3d 840, 844 (9th Cir. 2001)( [w]e have never required 5 explicit findings at step four regarding a claimant s PRW both as 6 generally performed and as actually performed. The vocational expert 7 merely has to find that a claimant can or cannot continue his or her 8 past relevant work as defined by the regulations )(citations omitted). Pinto v. 9 10 Plaintiff contends that the ALJ s holding that plaintiff s RFC does 11 not preclude him from performing PRW as a construction site cleaner does 12 not adequately discuss the mental and physical demands of the PRW as 13 required by Social Security Ruling ( SSR ) 82-62. (Joint Stip. at 8.) 14 15 In plaintiff s prior hearing before ALJ Fortune, a vocational 16 expert was employed to identify the specific physical and mental demands 17 of plaintiff s PRW in construction site cleanup. 18 response to ALJ Fortune s hypothetical concerning plaintiff s RFC and 19 PRW, 20 construction site cleanup work, and ALJ Fortune found, therefore, that 21 plaintiff could 22 impairments. (A.R. 37, 62.) Since that hearing and decision, plaintiff 23 has submitted minimal and routine treatment notes that do not overcome 24 the presumption of unchanged circumstances. 25 that [t]here has been no material change in the claimant s condition 26 since August 19, 2006. 27 has changed from what ALJ Fortune has already considered and, thus, 28 would require a de novo determination of non-disability. the vocational expert stated that (A.R. 36.) plaintiff could In perform perform his past relevant work even with his mental Id. (A.R. 76.) The ALJ found Plaintiff does not contend that his PRW 14 See Booz, 734 1 F.2d at 1379-80. Rather, plaintiff contends only that the ALJ failed 2 to discuss any of the actual physical and mental demands of plaintiff s 3 past relevant work. (Joint Stip. At 9.) 4 5 Plaintiff s contention falls under the penumbra of harmless error. 6 See Robbins, 466 F.3d at 885. The ALJ failed to directly discuss the 7 demands of plaintiff s PRW when finding whether or not plaintiff could 8 perform his PRW in light of the determined RFC. 9 however, consider the entire record when making his findings. Id. The ALJ did, (A.R. 10 72.) The record includes the testimony of the vocational expert in 11 plaintiff s previous hearing before ALJ Fortune. 12 vocational expert did consider and discuss the exertional skill level 13 and the specific vocational preparation level for all of plaintiff s 14 PRW. 15 indicate, that plaintiff s PRW has changed since the previous decision. 16 In view of the record, and noting specifically the testimony of the 17 vocational expert in plaintiff s previous hearing, the ALJ s error is, 18 in fact, harmless and inconsequential to the ultimate nondisability 19 determination. Robbins, 466 F.3d at 885. accordingly, reversal is not 20 warranted based on plaintiff s second contention. See A.R. 34-36. See A.R. 32-38. That Plaintiff has not alleged, nor does the record 21 22 23 IV. The ALJ Properly Considered And Partially Rejected The Lay Witness Statement Of Plaintiff s Mother. 24 25 Plaintiff contends that the ALJ failed to properly take into 26 consideration the lay witness testimony of plaintiff s mother, Frances 27 Maestas. 28 found that: (Joint Stip. at 11.) With respect to such testimony, the ALJ 15 1 [T]he claimant s mother is only credible to the extent the 2 claimant can do the work described herein. 3 made by the claimant s mother have not been given under oath. 4 She is not a medical professional and as a lay witness the 5 claimant s mother is not competent to make a diagnosis or 6 argue the severity of the claimant s symptoms in relationship 7 to his work. 8 the claimant and therefore she has a financial interest in 9 seeing claimant receive benefits. The statements The claimant s mother is the sole support for Therefore her opinion is 10 not an unbiased one. Most importantly, her statements are not 11 supported by the clinical or diagnostic evidence that is 12 discussed more thoroughly below. 13 14 (A.R. at 75.) 15 16 Plaintiff contends that Ms. Maestas did provide competent evidence 17 in her testimony regarding the symptoms of plaintiff s impairment as she 18 observed them, such as plaintiff s asserted inability to drive due to 19 his slow reactions and/or his problems with concentration and memory. 20 (Joint Stip. at 11.) 21 discredit 22 insufficient. the Plaintiff contends that the ALJ s decision to testimony of Ms. Maestas was therefore legally (Joint Stip. at 12.) 23 24 Lay testimony as to a claimant s symptoms is competent evidence 25 that 26 determines to disregard such testimony and gives reasons germane to each 27 witness for doing so. 28 2001); see also Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996); an ALJ must take into account, unless he or she expressly Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 16 1 Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). An ALJ may 2 properly discount lay testimony that conflict[s] with the available 3 medical evidence (Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 4 1984)), particularly where, as in Vincent, lay witnesses [are] making 5 medical diagnoses, because [s]uch medical diagnoses are beyond the 6 competence of lay witnesses and therefore do not constitute competent 7 evidence (Nguyen, 100 F.3d at 1467; original emphasis). When, however, 8 a lay witness testifies about a claimant s symptoms, which may affect 9 the claimant s ability to work, such testimony is competent evidence 10 and, therefore, cannot be disregarded without comment. Id. When an ALJ 11 fails to discuss competent lay testimony, a reviewing court cannot find 12 harmless error unless it can confidently conclude that no reasonable 13 ALJ, when fully crediting the testimony, could have reached a different 14 disability determination. Stout, 454 F.3d at 1056. 15 16 In her first third party function report, dated October 16, 2006, 17 Ms. Maestas stated that plaintiff was able to go out alone, visit family 18 members, go to church, perform household chores, prepare his own meals, 19 watch TV, drive a car, and walk for approximately five blocks before 20 needing to rest. 21 suffered from some concentration problems, as sometimes he doesn t 22 notice details on TV programs. 23 are in line with plaintiff s own adult function report. 24 157.) 25 Ms. Maestas stated that plaintiff could still go out alone and perform 26 household chores. 27 trouble with his concentration and memory and was unable to drive a car 28 due to slow reactions. (A.R. 158-163.) She also stated that plaintiff (A.R. 163.) All of these statements (See A.R. 151- In her second third party function report, dated March 16, 2007, (A.R. 183-190.) She also stated that plaintiff had (A.R. 186, 188.) 17 She asserted that plaintiff s 1 medication made him sleepy. (A.R. 184.) She also stated that plaintiff 2 had problems with concentration, memory, and the ability to follow 3 instructions, as evidenced by not remembering details in TV shows and 4 needing some instructions repeated. (A.R. 188.) 5 6 Many of the observations made by the Ms. Maestas are contradicted 7 by the record. Though she asserts that plaintiff gets sleepy as a 8 result of taking his medication, neither plaintiff nor his treating 9 physician noted that plaintiff suffered from this side effect as a 10 result of his medications. 11 233, 234, 235.) 12 to his slow reaction speed, neither the physicians who saw plaintiff nor 13 plaintiff himself indicate that he suffered from slow reactions. 14 A.R. 150-157, 175-182, 200-236.) 15 for being unable to drive a car, stating that his driving privelage 16 [sic] [was] taken away due to [his] owing child support. 17 As stated by the ALJ in his finding, the testimony of the Ms. Maestas is 18 inconsistent with the medical record concerning plaintiff suffering from 19 slowed reactions. (A.R. 148, 171, 196, 201, 202, 226, 227, Despite her assertion that plaintiff cannot drive due (See Plaintiff gave a conflicting reason (A.R. 178.) (A.R. 75.) 20 21 Moreover, by the time of Ms. Maestas s March 16, 2007 third party 22 function 23 repeatedly that plaintiff s was doing well on medication, and his 24 concentration and memory were regular or fine. (A.R. 201, 226, 227, 25 234, 235.) 26 plaintiff, the ALJ found that the claimant has failed to present 27 evidence 28 circumstances, and thus, the ALJ considered and adopted the prior report, plaintiff s treating physician, Dr. Mejia, noted After fully crediting the additional evidence supplied by to overcome the presumption 18 of [un]changed [sic] 1 residual functional capacity as it consistent with the current evidence 2 of record. (A.R. 76, 77.) 3 Ms. 4 Maestas s statements about Plaintiff s problems with 5 concentration and memory, difficulty in following instructions, etc. are 6 essentially cumulative of the medical testimony accepted by the ALJ and 7 reflected in his RFC finding that Plaintiff is limited to simple, 8 repetitive tasks with no public contact and minimal contact with 9 supervisors and co-workers. There is no reason to believe that, had the 10 ALJ expressly acknowledged and discussed Ms. Maestas s statements in 11 this respect, he would have reached a different RFC finding or found any 12 additional impairment at step two4 of the five step disability evaluation 13 process. 14 questionable. Thus, the probative value of Ms. Maestas s statements is 15 16 Under these circumstances, the Court can confidently conclude that 17 no reasonable ALJ considering this case would have reached a different 18 conclusion 19 Maestas s statements set forth in the third party function report. 20 Accordingly, the ALJ s decision to reject the lay witness testimony of 21 Ms. Maestas, if erroneous at all, was harmless error. 22 at 1056. 23 /// 24 /// 25 /// had he or she expressly considered and addressed Ms. Stout, 454 F.3d 26 27 4 Plaintiff does not claim to have any additional impairments that should have been found severe at step two. 28 19 1 CONCLUSION 2 3 For all of the foregoing reasons, the Court finds that neither 4 reversal of the ALJ s decision nor remand is warranted. Accordingly, IT 5 IS ORDERED that Judgment shall be entered affirming the decision of the 6 Commissioner of the Social Security Administration and dismissing this 7 case with prejudice. 8 9 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 10 copies of this Memorandum Opinion and Order and the Judgment on counsel 11 for Plaintiff and for Defendant. 12 13 LET JUDGMENT BE ENTERED ACCORDINGLY. 14 15 DATED: August 10, 2010 16 17 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 20
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