Vivencio B. Deang v. Michael J. Astrue, No. 5:2009cv00821 - Document 18 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Vivencio B. Deang filed this action on May 13, 2009. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before Magistrate Judge Rosenberg on July 10 and July 13 , 2009. On January 11,2010, the parties filed a Joint Stipulation that addressed the disputed issues. The Court has taken the matter under submission without oral argument. Having reviewed the entire file, the Court affirms the decision of the Commissioner. IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. (See Order for details.) (mp)
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Vivencio B. Deang v. Michael J. Astrue Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 NO. EDCV 09-821 AGR 17 ) ) ) ) ) ) ) ) ) ) ) ) 18 Vivencio B. Deang filed this action on May 13, 2009. Pursuant to 28 19 U.S.C. § 636(c), the parties consented to proceed before Magistrate Judge 20 Rosenberg on July 10 and July 13, 2009. (Dkt. Nos. 9-10.) On January 11, 21 2010, the parties filed a Joint Stipulation ( JS ) that addressed the disputed 22 issues. The Court has taken the matter under submission without oral argument. 23 Having reviewed the entire file, the Court affirms the decision of the VIVENCIO B. DEANG, 12 Plaintiff, 13 v. 14 15 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 16 24 Commissioner. 25 /// 26 /// 27 /// 28 MEMORANDUM OPINION AND ORDER /// Dockets.Justia.com 1 I. 2 PROCEDURAL BACKGROUND 3 On December 29, 2006, Deang filed an application for disability insurance 4 benefits alleging an onset date of February 1, 1996. Administrative Record 5 ( AR ) 9. The application was denied initially and upon reconsideration. AR 47- 6 48. An Administrative Law Judge ( ALJ ) conducted a hearing on August 21, 7 2008, at which Deang, his wife, and a vocational expert testified. AR 15-46. On 8 October 21, 2008, the ALJ issued a decision denying benefits. AR 6-14. On 9 March 5, 2009, the Appeals Council denied the request for review. AR 1-3. This 10 action followed. 11 II. 12 STANDARD OF REVIEW 13 Pursuant to 42 U.S.C. § 405(g), this Court reviews the Commissioner s 14 decision to deny benefits. The decision will be disturbed only if it is not supported 15 by substantial evidence, or if it is based upon the application of improper legal 16 standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. 17 Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 18 Substantial evidence means more than a mere scintilla but less than a 19 preponderance it is such relevant evidence that a reasonable mind might 20 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 21 determining whether substantial evidence exists to support the Commissioner s 22 decision, the Court examines the administrative record as a whole, considering 23 adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the 24 evidence is susceptible to more than one rational interpretation, the Court must 25 defer to the Commissioner s decision. Moncada, 60 F.3d at 523. 26 27 28 2 1 III. 2 DISCUSSION 3 A. 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). Disability 10 B. 11 The ALJ found Deang last met the insured status requirements on June 30, The ALJ s Findings 12 2002. AR 11. Deang performed substantial gainful activity after the alleged 13 onset date. AR 11, 13. Deang had the following severe impairments through the 14 date last insured: status post stroke, 1995, by reported history; and left sided 15 weakness by reported history. AR 11. Deang had the residual functional 16 capacity to perform the full range of light work. The claimant could lift and carry 17 20 pounds occasionally and 10 pounds frequently. He could stand and walk for 6 18 hours out of an 8-hour work day, and he could sit for 6 hours out of an 8-hour 19 work day. AR 12. Deang could perform his past relevant work as a park and 20 grounds keeper as actually performed at the light exertional level. AR 13. 21 C. 22 The ALJ found Deang to be a credible witness. AR 12. As the ALJ noted, Credibility 23 Deang testified at the hearing that, six years earlier (the date last insured), he 24 could have performed his former job as a parks and grounds keeper, eight hours 25 a day, five days a week, full time. AR 12, 34-35, 39-40. However, he could not 26 do the job as of the date of the hearing (August 2008), after the date last insured. 27 AR 39. 28 3 1 To determine whether a claimant s testimony regarding subjective pain or 2 symptoms is credible, an ALJ must engage in a two-step analysis. Lingenfelter 3 v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). 4 First, the ALJ must determine whether the claimant has presented 5 objective medical evidence of an underlying impairment which could reasonably 6 be expected to produce the pain or other symptoms alleged. Id. (quoting 7 Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). 8 9 The ALJ correctly found that there are no medical records prior to the date last insured.1 The ALJ left the record open in order to allow the claimant an 10 opportunity to obtain such records. Subsequently, the claimant informed the ALJ 11 that he had no additional evidence to submit. AR 12. Medical records exist only 12 for the period May 2005 - October 2007, three years after the date last insured. 13 Although the records contain Deang s report of a stroke in 1994 with residual left 14 side weakness, the ALJ correctly found that the records do not contain any 15 objective findings upon physical examination regarding a stroke or residual 16 weakness. AR 12, 173-74. 17 Second, if the claimant meets this first test, and there is no evidence of 18 malingering, the ALJ can reject the claimant s testimony about the severity of her 19 symptoms only by offering specific, clear and convincing reasons for doing so. 20 Lingenfelter, 504 F.3d at 1036 (citations omitted). In making a credibility 21 determination, the ALJ must specifically identify what testimony is credible and 22 what testimony undermines the claimant s complaints. Greger v. Barnhart, 464 23 F.3d 968, 972 (9th Cir. 2006) (citation omitted). [T]o discredit a claimant s 24 testimony when a medical impairment has been established, the ALJ must 25 provide specific, cogent reasons for the disbelief. Orn v. Astrue, 495 F.3d 625, 26 635 (9th Cir. 2007) (citations and quotation marks omitted). The ALJ must cite 27 28 1 Deang filed his application for benefits approximately 10 years after the alleged onset date and four years after the date last insured. 4 1 the reasons why the claimant s testimony is unpersuasive. Id. (citation and 2 quotation marks omitted). The ALJ may consider (a) inconsistencies or 3 discrepancies in a claimant s statements; (b) inconsistencies between a 4 claimant s statements and activities; (c) exaggerated complaints; and (d) an 5 unexplained failure to seek treatment. Thomas v. Barnhart, 278 F.3d 947, 958-59 6 (9th Cir. 2002). 7 As discussed above, the ALJ found Deang credible and accepted his 8 testimony. Deang argues he did testify that the stroke left him with residual 9 weakness in his left arm and leg, and he has not been taking care of it for a long 10 time. AR 24-25. He testified that six years ago he would trip because of the 11 weakness in his left leg. AR 29. However, [t]he mere existence of an 12 impairment is insufficient proof of disability. Matthews v. Shalala, 10 F.3d 678, 13 680 (9th Cir. 1993). Deang testified that, as of the date last insured, he could 14 have performed his former job as a parks and grounds keeper, eight hours a day, 15 five days a week, full time. AR 12, 34-35, 39-40. Deang stated that the reason 16 he left work was because it was seasonal. AR 106. Deang testified at the 17 hearing that he cannot now do his past work, after the date last insured. AR 39. 18 Deang argues that the ALJ should have rejected his credibility in favor of 19 his wife s statements. JS at 4. His wife testified she believed he could not 20 perform his job. She testified he fell off the truck once while working. AR 43. 21 Deang did not tell her of any other problems on the job. Id. She noticed he was 22 exhausted when he came home. Id. She testified he refuses to recognize his 23 limitations.2 AR 42. 24 Even accepting his wife s testimony, which the ALJ found to be sincere (AR 25 13), the ALJ found that Deang could not satisfy his burden of showing disabling 26 functional limitations that precluded his past relevant work. The ALJ found that 27 28 2 This testimony is inconsistent with Deang s testimony that he cannot now do his past work, which indicates some recognition of his limitations. AR 39. 5 1 Deang performed substantial gainful activity after he states he suffered a stroke, 2 and Deang does not challenge that finding. Assuming Deang fell off the truck 3 once and felt exhausted after work, that would at best create a conflict in the 4 evidence. It is the ALJ s province to resolve conflicts in the evidence. If the 5 ALJ s credibility finding is supported by substantial evidence in the record, we 6 may not engage in second-guessing. Thomas, 278 F.3d at 959 (citing Morgan v. 7 Comm r of the Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999)). 8 IV. 9 ORDER 10 11 12 13 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. 14 15 16 DATED: July 13, 2010 ALICIA G. ROSENBERG United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 6
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