Larry Zamorano v. Michael J Astrue, No. 5:2009cv02207 - Document 15 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. For the reasons set forth above, the Court finds that the Agency's findings are supported by substantial evidence and are free from material legal error. The decision of the Agency is, therefore, affirmed. IT IS SO ORDERED. (ca)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 LARRY ZAMARANO, Plaintiff, 11 12 13 14 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 09-2207 PJW MEMORANDUM OPINION AND ORDER 16 17 I. 18 INTRODUCTION 19 Plaintiff appeals a decision by Defendant Social Security 20 Administration ( the Agency ), denying his application for 21 Supplemental Security Income ( SSI ) benefits. 22 Administrative Law Judge ( ALJ ) erred when he failed to: (1) take 23 into account a treating physician s opinion that Plaintiff s 24 medication caused side effects; and (2) obtain vocational expert 25 testimony to determine if Plaintiff could work. 26 11-15.) 27 within the meaning of the Social Security Act is supported by 28 substantial evidence, it is affirmed. He claims that the (Joint Stip. at 2-8, Because the Agency s decision that Plaintiff was not disabled 1 II. 2 SUMMARY OF FACTS AND PROCEEDINGS 3 Plaintiff applied for SSI on January 31, 2008, alleging that he 4 had been unable to work since June 1, 2007, because of rheumatoid 5 arthritis and gastroesophageal reflux disease. 6 Agency denied his application initially and on reconsideration. 7 37-49.) 8 (AR 52-53.) 9 hearing on June 10, 2009. (AR 88, 92.) The (AR He then requested and was granted a hearing before an ALJ. Plaintiff appeared with counsel and testified at the (AR 18-36.) On September 1, 2009, the ALJ 10 issued a decision denying benefits. (AR 6-17.) 11 the Appeals Council, which denied review. 12 commenced the instant action. 13 (AR 1-5.) He then III. 14 Plaintiff appealed to ANALYSIS 15 A. 16 In his first claim of error, Plaintiff contends that the ALJ 17 erred when he failed to consider an April 2009 chart note by treating 18 physician Robert Schmitt that Plaintiff s pain medication caused side 19 effects. 20 note constituted the doctor s opinion and, therefore, the ALJ was 21 required to set forth specific and legitimate reasons for rejecting 22 it, which he failed to do. 23 Plaintiff argues that the ALJ was required to contact Dr. Schmitt and 24 have him explain what he meant by side effects in the chart note. 25 (Joint Stip. at 6-7.) 26 these arguments. 27 28 Side Effects (Joint Stip. at 3-7.) Plaintiff contends that this chart (Joint Stip. at 3-4.) Alternatively, For the following reasons, the Court rejects Although the side effects of medication must be considered by an ALJ in determining disability, 20 C.F.R. § 416.929(c)(3)(iv); see also 2 1 Social Security Ruling 96-8p, the claimant bears the burden of 2 presenting objective evidence establishing that the side effects are 3 impacting his ability to work. 4 (9th Cir. 1985) (holding claimant bears burden of presenting clinical 5 evidence that narcotics use impaired ability to work). 6 failed to meet his burden. 7 Miller v. Heckler, 770 F.2d 845, 849 Plaintiff has Plaintiff submitted a disability report with his application for 8 SSI in 2008 in which he stated that Flomax, a prostate medication he 9 was taking, caused a runny nose. (AR 127.) After his application for 10 benefits was initially denied by the Agency, Plaintiff submitted a new 11 report, stating that Flomax made him dizzy.1 12 (AR 117.) A progress note from November 2007 states that Plaintiff 13 experienced side effects with hytrin., presumably Hydrocodone- 14 Acetaminophen, but it does not specify what those side effects were. 15 (AR 138, 141.) 16 consultative examiner, Dr. William Boeck, in May 2008. 17 Plaintiff did not report any side effects to the (AR 150-54.) In March 2009, Plaintiff reported to his treating physician, Dr. 18 Schmitt, that there were no adverse effects from his medications. 19 (AR 179.) 20 Dr. Schmitt that he was experiencing side effects from his pain 21 medications, though the doctor did not note what the side effects 22 were. 23 changed Plaintiff s pain medication from Endocet to Tramadol. Six weeks later, on April 27, 2009, Plaintiff reported to (AR 173.) Perhaps in response to this complaint, Dr. Schmitt (AR 24 25 26 27 1 Plaintiff also asserted in both reports that Vicodin, a pain reliever he was taking, gave him a rash, slight nausea, and a dry mouth. (AR 117, 127.) Obviously, these claimed side effects have no impact on Plaintiff s ability to work, nor has he argued that they do. 28 3 1 175.) The April 2009 note is the last note from Dr. Schmitt in the 2 medical record. 3 Six weeks later, in June 2009, Plaintiff testified at the 4 administrative hearing that he had taken Tramadol, Hydrocodone, and 5 Oxycodone in the past and that he was currently taking Vicodin, Norco, 6 Flomax, and Prilosec. 7 experiencing any side effects from these medications or claim that 8 side effects impaired his ability to work. 9 specifically asked what symptoms, other than pain and lethargy, (AR 26-28.) He did not claim to be (AR 24-35.) When 10 prevented him from working, Plaintiff testified that it was 11 gastroesophogeal reflux. 12 (AR 29.) Plaintiff now claims that the ALJ erred when he did not adopt Dr. 13 Schmitt s opinion that Plaintiff s side effects interfered with his 14 ability to work. 15 argument. 16 of medical records, side effects are mentioned three times: once in 17 November 2007, when Plaintiff reported unspecified side effects; once 18 in March 2009, when Plaintiff reported no side effects; and once six 19 weeks later, in April 2009, when Plaintiff again reported unspecified 20 side effects. 21 doctors opinions is simply misguided. 22 they were grounded in Plaintiff s subjective claims, which the ALJ 23 found were not credible. 24 Plaintiff s claimed side effects. 25 F.3d 947, 960 (9th Cir. 2002) (affirming ALJ s rejection of claimant s 26 alleged side effects because claimant was not credible and the only 27 evidence of side effects was her statements that they existed). 28 these reasons, the ALJ s failure to treat these cryptic entries as a The record simply does not support Plaintiff s The record of side effects is scant, at best. (AR 173, 179.) In 61 pages To characterize these entries as Further, even if they were, Thus, the ALJ was not required to credit See, e.g., Thomas v. Barnhart, 278 4 For 1 treating physician s opinion was not error. 2 240 F.3d 1157, 1164 (9th Cir. 2001) (holding ALJ did not err in 3 excluding alleged side effects from hypothetical question where the 4 record contained only passing mentions of the side effects of 5 [claimant s] medication . . . but there was no evidence of side 6 effects severe enough to interfere with [claimant s] ability to 7 work ). 8 9 See Osenbrock v. Apfel, Nor was the ALJ required to contact Dr. Schmitt for clarification. Though an ALJ has a duty to contact a treating doctor 10 where the doctor s opinion is unclear, see Tonapetyan v. Halter, 242 11 F.3d 1144, 1150 (9th Cir. 2001) (noting ALJ has duty to fully develop 12 the record when evidence is ambiguous or inadequate such as to prevent 13 proper evaluation of claim); see also 20 C.F.R. § 416.912(e), the 14 entries in Dr. Schmitt s records did not rise to that level. 15 in Dr. Schmitt s chart notes suggests that the claimed side effects 16 were debilitating or that they would interfere with Plaintiff s 17 ability to work. 18 the other medical records establish that side effects were a non- 19 issue. 20 the case as to why he could not work, Plaintiff never mentioned side 21 effects, despite multiple opportunities to do so. 22 mention them, Plaintiff (and his lawyer) signaled to the ALJ (and this 23 Court) that side effects were not in issue. 24 ALJ was not required to contact Dr. Schmitt for clarification and did 25 not err when he failed to do so. 26 1211, 1217 (9th Cir. 2005). 27 28 Nothing In fact, a fair reading of Dr. Schmitt s notes and Further, given a chance at the administrative hearing to make In failing to For these reasons, the See Bayliss v. Barnhart, 427 F.3d Plaintiff, of course, disagrees. Citing WebMD, an internet medical site, he argues that Flomax and Tramadol can produce a whole 5 1 host of side effects, including vomiting, constipation, dizziness, 2 weakness, drowsiness, headaches, restlessness, blurred vision, fever, 3 runny noses, and problems ejaculating, which could significantly 4 affect his ability to work. 5 www.webmd.com.) 6 cases do, cause these side effects is irrelevant. 7 the ALJ and the Court is whether they caused these side effects in 8 Plaintiff and, if so, whether they impacted Plaintiff s ability to 9 work. (Joint Stip. at 5, citing http:// Whether or not these medications can, and in some The answer to both questions is no. The issue before Plaintiff never claimed to 10 suffer from most of the listed side effects and never claimed that the 11 ones he did suffer from impacted his ability to work. 12 fact, in his entire testimony at the administrative hearing, which 13 covers 17 pages of transcript, he never once mentioned any side 14 effects, never mind that they prevented him from working. 15 For all these reasons, the Court concludes that the ALJ did not err in 16 failing to address Plaintiff s claimed side effects and, therefore, 17 this claim is denied. (AR 29.) In (AR 20-36.) 18 B. 19 In his second claim of error, Plaintiff contends that the ALJ 20 erred when he relied on the Medical-Vocational Guidelines (hereinafter 21 the Grids ) to determine that Plaintiff could work. 22 11-15.) 23 did not err. 24 The ALJ s Application of the Medical-Vocational Guidelines (Joint Stip. at For the following reasons, the Court concludes that the ALJ The Grids are a set of rules that direct whether a claimant is or 25 is not disabled. An ALJ is authorized to rely on the Grids if they 26 completely and accurately represent a claimant s limitations . . . . 27 In other words, a claimant must be able to perform the full range of 28 jobs in a given category . Tackett v. Apfel, 180 F.3d 1094, 1101 (9th 6 1 Cir. 1999) (emphasis in original). 2 used if a claimant has a severe, non-exertional impairment that would 3 significantly limit the range of work he could perform. 4 Thomas, 278 F.3d at 960 (holding vocational expert must be consulted 5 when the Grids do not adequately take into account claimant s 6 abilities and limitations ). 7 Conversely, the Grids may not be See, e.g., Here, the ALJ determined that Plaintiff could perform medium work 8 as long as it involved no more than occasional climbing. 9 then applied Grid Rule 203.06 and concluded that Plaintiff was not He 10 disabled. 11 relied on the Grids because Plaintiff suffered from significant, non- 12 exertional limitations--such as side effects from his medications and 13 pain. 14 vocational expert. 15 Massanari, 257 F.3d 1033 (9th Cir. 2001).) 16 the Court disagrees. 17 (AR 16-17.) (AR 12.) Plaintiff argues that the ALJ should not have He contends that the ALJ should have, instead, relied on a (Joint Stip. at 12-15, citing Aukland v. For the following reasons, As explained in detail in Section A above, not even Plaintiff 18 believed that his alleged side effects interfered with his ability to 19 work. 20 his adverse credibility finding and in his reliance on the uncontro- 21 verted opinions of the examining and reviewing physicians that 22 Plaintiff s non-exertional limitations were not significant. 23 8.) 24 Where, as here, there are no non-exertional limitations that 25 significantly impact a claimant s ability to work, the ALJ is free to 26 use the Grids. 27 claim does not warrant reversal or remand. As to his claim of significant pain, the ALJ expressly found in (AR 7- That finding is supported by substantial evidence in the record. Osenbrock, 240 F.3d at 1162. 28 7 For these reasons, this 1 IV. 2 CONCLUSION 3 For the reasons set forth above, the Court finds that the 4 Agency s findings are supported by substantial evidence and are free 5 from material legal error. 6 affirmed. 7 IT IS SO ORDERED. 8 The decision of the Agency is, therefore, Dated: May 20, 2011 9 10 11 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S:\PJW\Cases-Soc Sec\ZAMORANO, L 2207\MemoOpinion.wpd 8
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