Scott Whitley v. Michael J. Astrue, No. 5:2009cv02283 - Document 19 (C.D. Cal. 2010)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal: Consistent with the foregoing, IT IS ORDERED that the decision of the Commissioner is AFFIRMED. (dhl)
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Scott Whitley v. Michael J. Astrue Doc. 19 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SCOTT WHITLEY, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 16 Defendant. ) NO. EDCV 09-02283 SS ) ) ) ) ) MEMORANDUM DECISION AND ORDER ) ) ) ) ) ) 17 18 I. 19 INTRODUCTION 20 21 Plaintiff Scott Whitley (“Plaintiff”) brings this action seeking 22 to reverse the decision of the Commissioner of the Social Security 23 Administration 24 application for a period of Disability Insurance Benefits (“DIB”) and 25 for Supplemental Security Income (“SSI”). Alternatively, Plaintiff asks 26 for a remand. 27 to the jurisdiction of the undersigned United States Magistrate Judge. 28 For the reasons stated below, the decision of the Commissioner is (the “Commissioner” or the “Agency”) denying his The parties consented, pursuant to 28 U.S.C. § 636(c), AFFIRMED. Dockets.Justia.com II. 1 PRIOR PROCEEDINGS 2 3 4 On May 22, 2006, Plaintiff filed an application for DIB and SSI 5 claiming that he became disabled beginning September 30, 2001. 6 (Administrative Record (“AR”) 10). 7 application on August 4, 2006. 8 reconsideration, the application was again denied on December 26, 2006. 9 (Id.). The Agency initially denied his (Id.). After submitting a request for On February 14, 2007, Plaintiff requested a hearing. The 10 hearing was held before Administrative Law Judge (“ALJ”) Gene Duncan on 11 January 23, 2008. (AR 18). Plaintiff appeared with counsel and 12 testified. Also testifying were Samuel Landau, a 13 medical expert, Gregory S. Jones, a vocational expert, and Gail Wagner, 14 Plaintiff’s fiancé. 15 issued a decision denying benefits. (AR 7-17). Plaintiff sought review 16 before the Appeals Council, which denied the request on November 9, 17 2009. 18 action. 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // (AR 21-24, 34-46). (AR 1-3). (AR 25-33, 47-64). On February 15, 2008, the ALJ On December 16, 2009, Plaintiff filed the instant 2 III. 1 FACTUAL BACKGROUND 2 3 4 Plaintiff was born on June 27, 1958, and was forty-three years old 5 at the time of the alleged disability onset date. (AR 16). He has a 6 tenth grade education and is able to communicate in English. 7 Plaintiff formerly worked as a construction worker. (Id.). Plaintiff’s 8 claimed impairments include rheumatoid arthritis, Hepatitis C, a back 9 injury, arthritis, and high blood pressure. (Id.). (AR 116). 10 11 A. Plaintiff’s Medical History 12 13 In May 2005, while serving a sixteen-month sentence for a DUI 14 conviction at Calipatria State Prison, Plaintiff was treated for pain 15 and trouble breathing. 16 Metamucil, Motrin, Penicillin, and Prilosec to Plaintiff. 17 before and after his incarceration, Plaintiff visited Rancho Springs 18 Medical Center for treatment of back pain. 19 Rancho Springs, he received x-rays, a CT scan, and medication. (AR 133, 20 143). 21 Dr. Simms, all affiliated with Rancho Springs Medical Center. (AR 148). (AR 134). The prison doctors prescribed Malox, (Id.). (AR 119, 133, 143). Both At Plaintiff was treated by Dr. Moody, Dr. Wayne, Dr. Odubela, and 22 23 Plaintiff listed Dr. Jesus Lucas as his primary physician. (AR 24 234). Dr. Lucas ordered numerous tests through Quest Diagnostics, 25 UniLab, and Cardiopulmonary Diagnostic Services. 26 353, 354, 356, 363, 364, 366, 367, 369, 370, 371, 375). 27 listed as prescribing Plaintiff various medications for herpes, an 28 infection, and an undisclosed stomach ailment. 3 (AR 329, 339, 349, (AR 149). Dr. Lucas is 1 On May 26, 2006, Dr. Lucas completed a Consent for Release of 2 Medical Information form. (AR 336). 3 form, Dr. Lucas diagnosed Plaintiff with degenerative disc disease, 4 arthritis, and Hepatitis C. 5 type of examination was conducted to reach these conclusions. (Id.). 6 The boxes did not provide space for elaboration. In the 7 “prognosis and recommendations for treatment” box, Dr. Lucus found 8 Plaintiff “temporarily disab[led] at least until 9/1/06 while the above 9 work-up and therapy are being carried out.” (Id.). In this one-page, fill-in-the-box The form does not indicate what (Id.). (Id.). 10 11 On March 29, 2007, Dr. Lucas completed an Authorization to Release 12 Medical Information form. (AR 335). Dr. Lucas again concluded in this 13 check-off-the-box form that Plaintiff does not require someone to care 14 for him, and that Plaintiff could provide care to children in his home. 15 (Id.). Dr. Lucas found that Plaintiff did not have any limitations that 16 affect his ability to work or participate in education or training. 17 However, Dr. Lucas also checked the box indicating that Plaintiff was 18 not, in fact, able to work. 19 specific diagnosis on this release form. Dr. Lucas did not provide any other (Id.). 20 21 B. Consultative Examinations 22 23 At the Agency’s request, Dr. Thomas J. Sabourin completed an 24 Orthopedic Consultation 25 examination 26 observations of Plaintiff’s movements. 27 that Plaintiff had normal gait and did not need an assistive device. 28 (Id.). included on formal July 25, physical 2006. (AR 188-92). examination (AR 189). procedures The and Dr. Sabourin found Dr. Sabourin performed x-rays which showed no significant 4 1 decrease in the disc spaces of Plaintiff’s back except for some perhaps 2 slight decrease at L5-S1. 3 Plaintiff’s range of motion was normal in his extremities. (AR 190-91). 4 Furthermore, Dr. Sabourin found that Plaintiff had no manipulative 5 limitations. 6 symptoms were “somewhat disproportionate to the determinable condition” 7 and that Plaintiff could lift fifty pounds occasionally, twenty-five 8 pounds frequently, and is capable of standing, walking, or sitting for 9 six out of eight hours. (AR 192). (AR 191). The examination revealed that Dr. Sabourin concluded that Plaintiff’s (Id.). 10 11 On August 1, 2006, Dr. A.W. Lizarraras completed a Physical 12 Residual Functional Capacity (“RFC”) Assessment after reviewing medical 13 evidence in the file. 14 Plaintiff had no limitations with regard to manipulation, vision, 15 communication, or environment. (AR 199-200). Dr. Lizarraras found that 16 Plaintiff’s postural limitations included climbing, balancing, stooping, 17 kneeling, crouching, and crawling due to back strain. 18 Lizarraras concluded that Plaintiff had frequent postural limitations, 19 but no manipulative limitations. 20 allegations are partially credible for arthritis. 21 examination discovered no indication of significant liver disease and 22 Plaintiff appeared capable of at least medium work.1 (AR 197-202). Dr. Lizarraras found that (AR 202). (AR 199). Dr. He found that Plaintiff’s (Id.). However, the (Id.). 23 24 25 On December 26, 2006, Dr. G.D. Taylor-Holmes also completed a Physical RFC Assessment after reviewing the evidence in the file. (AR 26 27 28 1 Medium level is defined as work involving “lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weight up to 25 pounds.” 20 C.F.R. § 404.1567(c). 5 1 206-10). Dr. Taylor-Holmes also found Plaintiff to have frequent 2 postural limitations, but no limitations with regard to manipulation, 3 vision, communication, or environment. (AR 208-09). In conclusion, Dr. 4 Taylor-Holmes also found that Plaintiff could perform medium level work. 5 (AR 210). 6 7 C. Subjective Complaints 8 9 In his disability report, Plaintiff complained that he suffers from 10 rheumatoid arthritis, Hepatitis C, a back injury, arthritis, and high 11 blood pressure. (AR 116). 12 13 On June 10, 2005, Plaintiff completed Exertional Daily 14 Activities Questionnaire. 15 complained of chronic joint pain, chronic hip pain, a metatarsal stress 16 fracture to his right foot, dizziness, and difficulty sleeping because 17 of pain. 18 he tries to “put in a mile or two of walking a day, [he] swim[s] and 19 sit[s] in a hot spa . . . .” 20 “walk[s] to the grocery store, which is 3/4 of a mile.” 21 However, Plaintiff also states in the same questionnaire that he does 22 not do his own grocery shopping. (AR 125). (AR 125-27). an In the questionnaire, he Plaintiff stated that to temporarily relieve pain (Id.). Further, he stated that he (AR 126). (Id.). 23 24 Plaintiff reported that he does not drive a car, clean his home, 25 or do yard work even though he used to be able to. 26 Because of pain he is forced to rest every few hours. 27 only capable of sleeping for a few hours at a time because his pain 28 causes substantial discomfort. (Id.). 6 (AR 126-27). (AR 127). He is 1 Testifying before the ALJ on January 23, 2008, Plaintiff stated 2 that he has a tenth grade education and has worked in construction. (AR 3 21). 4 of his sickness and, as a result, has lost weight. 5 testified that he last worked in 2001. 6 injuries from a car accident and has carpal tunnel syndrome. 7 24). 8 had liver problems and also had broke his foot. 9 his pain at a level of seven or eight on a scale of one-to-ten. Also, he testified he has not been able to eat correctly because (Id.). (AR 23). He further He has sustained (AR 23- Plaintiff testified that, while in prison, he discovered that he (AR 35-36). He rates (AR 10 42). Generally, he complains about being depressed all the time, not 11 being able to sleep well, not having sex, getting headaches, having 12 herpes breakouts, and being unable to move properly. (AR 41). 13 14 D. Vocational Expert Testimony 15 16 Gregory Stewart Jones testified at the hearing as a vocational 17 expert. (AR 53). Mr. Jones testified that Plaintiff’s primary 18 occupation is a “framing carpenter.” 19 although Plaintiff’s work is classified as “skilled”, none of his skills 20 are transferable to light work.2 21 print reading” could be transferred to a building inspector occupation. 22 (Id.). 23 required. (AR 54). (Id.). Mr. Jones found that Plaintiff’s skills in “blue However, Mr. Jones testified that additional training would be (Id.). 24 25 2 26 27 28 Light work is defined as work involving “lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds” and requiring “a good deal of walking or standing” or “sitting most of the time with some pushing and pulling of arm or leg controls.” 20 C.F.R. §§ 404.1567(b) and 416.967(b). 7 1 When presented with a hypothetical employee matching Plaintiff’s 2 abilities and limitations, Mr. Jones found that this person could not 3 perform Plaintiff’s former work. (AR 56-57). However, Mr. Jones stated 4 that there are jobs in the local, regional, or national economies for 5 a person who can occasionally lift twenty pounds, can frequently lift 6 ten pounds, can stand or walk for four hours of an eight-hour work day, 7 can sit for six hours of an eight-hour work day, should be allowed to 8 stretch, and can not have access to alcohol. 9 include a small products assembler, a counter clerk, or a parking lot 10 cashier. (AR 57-58). These jobs (AR 58-61). 11 IV. 12 FIVE STEP PROCESS 13 14 15 To qualify for disability benefits, a claimant must demonstrate 16 a medically determinable physical or mental impairment that prevents him 17 from engaging in substantial gainful activity3 and that is expected to 18 result in death or to last for a continuous period of at least twelve 19 months. 20 42 U.S.C. § 423(d)(1)(A)). 21 incapable of performing the work he previously performed and incapable 22 of performing any other substantial gainful employment that exists in 23 the national economy. 24 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing The impairment must render the claimant Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 25 26 27 28 3 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay or profit. 20 C.F.R. §§ 404.1510, 416.910. 8 1 2 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are: 3 4 (1) Is the claimant presently engaged in substantial gainful 5 activity? 6 If not, proceed to step two. 7 (2) Is the If so, the claimant is found not disabled. claimant’s impairment 8 claimant is found not disabled. 9 three. 10 (3) severe? If not, the If so, proceed to step Does the claimant’s impairment meet or equal one of a 11 list of specific impairments described in 20 C.F.R. Part 12 404, Subpart P, Appendix 1? 13 found disabled. 14 (4) If so, the claimant is If not, proceed to step four. Is the claimant capable of performing his past work? 15 so, the claimant is found not disabled. 16 to step five. 17 (5) If not, proceed Is the claimant able to do any other work? 18 claimant is found disabled. 19 found not disabled. If If not, the If so, the claimant is 20 21 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 22 949, 953-54 (9th Cir. 2001) (citing Tackett); 20 C.F.R. §§ 404.1520(b) - 23 404.1520(f)(1) & 416.920(b) - 416.920(f)(1). 24 25 The claimant has the burden of proof at steps one through four, and 26 the Commissioner has the burden of proof at step five. 27 F.3d 28 affirmative duty to assist the claimant in developing the record at at 953-54 (citing Tackett). 9 Additionally, Bustamante, 262 the ALJ has an 1 every step of the inquiry. 2 meets his burden of establishing an inability to perform past work, the 3 Commissioner must show that the claimant can perform some other work 4 that exists in “significant numbers” in the national economy, taking 5 into 6 education, and work experience. 7 Reddick, 157 F.3d at 721; 20 C.F.R. §§ 404.1520(f)(1), 416.920(f)(1). 8 The Commissioner may do so by the testimony of a vocational expert or 9 by reference to the Medical-Vocational Guidelines appearing in 20 C.F.R. 10 Part 404, Subpart P, Appendix 2 (commonly known as “the Grids”). 11 Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001) (citing 12 Tackett). 13 nonexertional limitations, the Grids are inapplicable and the ALJ must 14 take the testimony of a vocational expert. 15 864, 869 (9th Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 16 (9th Cir. 1988)). account the Id. at 954. claimant’s If, at step four, the claimant residual functional capacity,4 age, Tackett, 180 F.3d at 1098, 1100; When a claimant has both exertional (strength-related) and Moore v. Apfel, 216 F.3d 17 V. 18 THE ALJ’S DECISION 19 20 21 The ALJ employed the five-step sequential evaluation process and 22 concluded that Plaintiff was not disabled within the meaning of the 23 Social Security Act. 24 that Plaintiff has not engaged in substantial gainful activity since 25 September 30, 2001. (AR 12-17). (AR 12). At the first step, the ALJ observed At step two, he found that Plaintiff’s 26 27 28 4 Residual functional capacity is “what [one] can still do despite [his] limitations” and represents an “assessment based upon all of the relevant evidence.” 20 C.F.R. §§ 404.1545(a), 416.945(a). 10 1 healed right foot fracture, arthritis, Hepatitis C, and hypertension 2 qualified as severe impairments. (Id.). 3 4 At the third step, the ALJ found that the severe impairments at 5 step two did not meet or medically equal a listed impairment. (Id.). 6 Next, at step four, the ALJ found that Plaintiff has retained the RFC 7 to perform light work “except he can occasionally stoop, bend, climb, 8 kneel, crouch and balance. 9 in every hour. He should be allowed to stretch 1-3 minutes He cannot operate motorized equipment, work around 10 dangerous machinery or at heights. He cannot perform security work or 11 work with access to alcohol. Mentally, [Plaintiff] can perform simple, 12 routine and detailed work.” (AR 12-13). 13 Plaintiff is unable to perform any of his past relevant work. Also, the ALJ concluded that (AR 15). 14 15 Finally, at step five, the ALJ concluded that Plaintiff could 16 perform work that exists in significant numbers in the national economy. 17 (AR 16). 18 small products assembler, a counter clerk, and a parking lot attendant. 19 (Id.). Accordingly, the ALJ determined that Plaintiff was not disabled, 20 as defined in the Social Security Act, at any time through the date of 21 the decision. Specifically, Plaintiff could perform the requirements of a (AR 17). 22 VI. 23 STANDARD OF REVIEW 24 25 26 Under 42 U.S.C. § 405(g), a district court may review the 27 Commissioner’s decision to deny benefits. 28 Commissioner’s decision when the ALJ’s findings are based on legal error 11 The court may set aside the 1 or are not supported by substantial evidence in the record as a whole. 2 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (citing 3 Tackett, 180 F.3d at 1097); Smolen v. Chater, 80 F.3d 1273, 1279 (9th 4 Cir. 1996) (citing Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). 5 6 “Substantial evidence is more than a scintilla, but less than a 7 preponderance.” Reddick, 157 F.3d at 720 (citing Jamerson v. Chater, 8 112 F.3d 1064, 1066 (9th Cir. 1997)). 9 a reasonable person might accept as adequate to support a conclusion.” It is “relevant evidence which 10 Id. (citing Jamerson, 112 F.3d at 1066; Smolen, 80 F.3d at 1279). 11 determine whether substantial evidence supports a finding, the court 12 must “‘consider the record as a whole, weighing both evidence that 13 supports 14 conclusion.’” 15 F.3d 953, 956 (9th Cir. 1993)). 16 either affirming or reversing that conclusion, the court may not 17 substitute its judgment for that of the Commissioner. Reddick, 157 F.3d 18 at 720-21 (citing Flaten v. Sec’y, 44 F.3d 1453, 1457 (9th Cir. 1995)). and evidence that detracts from the To [Commissioner’s] Aukland, 257 F.3d at 1035 (citing Penny v. Sullivan, 2 If the evidence can reasonably support 19 20 VII. 21 DISCUSSION 22 23 Plaintiff contends that: (1) the ALJ’s RFC determination is invalid 24 because of his failure to weigh the opinion of Dr. Jesus Lucas as a 25 treating physician (Memorandum in Support of Plaintiff’s Complaint 26 (“Complaint Memo”) at 2); (2) the ALJ failed to make proper credibility 27 findings and to properly consider Plaintiff’s subjective testimony (Id. 28 at 8); and (3) the ALJ failed to properly consider the lay witness 12 1 testimony of Gail Wagner. 2 Plaintiff’s contentions. (Id. at 5). The Court disagrees with 3 4 A. The ALJ’s RFC Is Supported By Substantial Evidence In The Record 5 6 Plaintiff contends that Dr. Lucas is Plaintiff’s treating physician 7 and that the ALJ failed to properly consider Dr. Lucas’s findings. 8 (Complaint Memo at 2). 9 Dr. Lucas’s opinion and that the ALJ never explicitly accepted or Plaintiff asserts that the ALJ never mentioned 10 rejected Dr. Lucas’s opinion. (Id. at 3). Ultimately, Plaintiff 11 contends that because the ALJ failed to explicitly consider Dr. Lucas’s 12 medical opinion, the ALJ’s RFC determination is invalid. 13 disagrees. The Court 14 15 Dr. Lucas’s most significant detailed statement in the record is 16 found in the “Consent for Release of Information” form. 17 Lucas found that Plaintiff suffered from degenerative disc disease, 18 arthritis, and Hepatitis C. 19 indicated Plaintiff was unable to work, but also found that he did not 20 need care or supervision. 21 indicated Plaintiff would “benefit from job rehabilitation.” (Id.). 22 The form does not include any information revealing the type of 23 examination performed by Dr. Lucas or how he reached his conclusions. 24 (Id.). Other than listing Plaintiff’s conditions and stating Plaintiff 25 that he is unable to work, the form merely contains routine information 26 about Plaintiff. (Id.). (Id.). (AR 336). Dr. Dr. Lucas checked-off the box that Dr. Lucas checked-off the box that (Id.). 27 28 13 1 Although there are remaining records from Dr. Lucas, none of them 2 offer more detailed information regarding his opinion of Plaintiff’s 3 impairments. 4 treating physician status, as the records do not clearly demonstrate an 5 ongoing treatment relationship. 6 Lucas, for a variety of complaints, but the visits were infrequent and 7 of limited duration. It is questionable whether Dr. Lucas qualifies for Plaintiff made a few visits to Dr. 8 9 Assuming arguendo that Dr. Lucas’ check-off form is entitled to 10 treating doctor weight, and assuming that the ALJ erred by failing to 11 directly address it, the Court must decide if it was harmless error. 12 Because more than substantial evidence exists in the record for the 13 ALJ’s opinion, the Court finds that even if the ALJ erred by failing to 14 directly address Dr. Lucas’s form opinion, the error was harmless. 15 Curry v. Sullivan, 925 F.2d 1127, 1129 (9th Cir. 1990)(harmless error 16 applies to review of administrative decision regarding disability); Booz 17 v. Sec’y of Health and Human Servs., 734 F.2d 1378, 1380-81 (9th Cir. 18 1984). Substantial evidence in the record ultimately supports the ALJ’s 19 RFC finding. 20 1155, 1162 (9th Cir. 2008). See See Carmickle v. Comm’r of Social Sec. Admin., 533 F.3d 21 22 Dr. Sabourin, Dr. Lizarraras, and Dr. Taylor-Holmes each 23 independently concluded, in detailed written opinions, that Plaintiff 24 has a RFC for medium work with certain limitations. (AR 192, 202, 210). 25 Specifically, each doctor concluded that in an eight-hour work-day 26 Plaintiff could stand and walk for at least six hours, or sit for six 27 hours. 28 somewhat (AR 192, 198, 207). disproportionate They agreed that Plaintiff’s symptoms were to his 14 condition and that Plaintiff is 1 employable. 2 consulting 3 findings. (AR 192, 202, 210). physicians provide The examinations conducted by the substantial evidence for the ALJ’s 4 5 Even if Dr. Lucas was a treating doctor, the ALJ’s lack of reasons 6 for rejecting his limited opinion was harmless error. See Curry 925 7 F.2d at 1129. 8 Information form, (AR 336), consisting mostly of a conclusory check-off- 9 the-box form, did not deserve significant weight. Dr. Lucas’s completed Consent for Release of Medical See Magallanes v. 10 Bowen, 881 F.2d 747, 851 (9th Cir. 1989) (finding that the ALJ need not 11 consider conclusory opinions); Crane v. Shalala, 76 F.3d 251, 253 (9th 12 Cir. 1996) (ALJ properly rejected doctor’s opinion set forth in check- 13 off reports that did not contain any explanation of the bases of their 14 conclusions). 15 16 Dr. Lucas’s conclusions are not supported by medical evidence found 17 in the record. For example, the evidence regarding Hepatitis C is 18 unclear, at best. 19 tests do not show Hepatitis C. 20 degenerative disk disease. 21 Plaintiff’s “lumbar spine [was] normally aligned. 22 heights and intervertebral disc spaces [were] maintained. 23 or spondylolisthesis [was] evident.” (AR 160). Similarly, x-rays taken 24 on July 24, 2006 of Plaintiff’s back did not reveal any degenerative 25 disk disease. (AR 14). Dr. Landau specifically stated that the (AR 25). The same can be said for the On January 24, 2002, an examination showed Vertebral body No fracture (AR 15, 27). 26 27 Accordingly, as Dr. Lucas’s opinions are conclusory and are not 28 consistent with medical evidence in the record, the ALJ was not obliged 15 1 to accept or credit Dr. Lucas’s findings. Magallanes, 881 F.2d at 851. 2 Where present, 3 responsibility of resolving the conflict. 4 (the ALJ is responsible for determining credibility, resolving conflicts 5 in medical testimony, and for resolving ambiguities). 6 Plaintiff’s claim does not warrant reversal or remand. conflicting medical evidence is the ALJ has the See Andrews, 53 F.3d at 1039 Accordingly, 7 8 B. The ALJ Properly Rejected Plaintiff’s Subjective Pain Testimony 9 10 Plaintiff contends that the ALJ erred when he failed to provide 11 legally sufficient reasons for discrediting Plaintiff’s testimony. 12 (Complaint Memo at 8). 13 in the alternative, remand is required. As such, Plaintiff contends that reversal or, The Court disagrees. 14 15 To determine whether a claimant’s testimony regarding subjective 16 pain or symptoms is credible, an ALJ must engage in a two-step analysis. 17 First, the ALJ must determine whether the claimant has presented 18 objective medical evidence of an underlying impairment “which could 19 reasonably be expected to produce the pain or other symptoms alleged. 20 Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) (citing 21 Bunnell 22 banc))(internal quotation marks omitted). The claimant, however, “need 23 not show that her impairment could reasonably be expected to cause the 24 severity of the symptom she has alleged; she need only show that it 25 could reasonably have caused some degree of the symptom.” 26 Smolen, 80 F.3d at 1282). v. Sullivan, 947 F.2d 341, 27 28 16 344 (9th Cir. 1991) (en Id. (quoting 1 Second, if the claimant meets this first test, and there is no 2 evidence of malingering, “the ALJ can reject the claimant’s testimony 3 about the severity of her symptoms only by offering specific, clear, and 4 convincing reasons for doing so.” Smolen, 80 F.3d at 1281. 5 6 If the ALJ only makes vague findings, i.e., the plaintiff’s 7 statements are not consistent with the medical evidence, then the ALJ 8 has 9 convincing reasons. not satisfied his obligation to supply specific, clear, and Vasquez v. Astrue, 572 F.3d 586,592 (9th Cir. 10 2009). To support a lack of credibility finding, the ALJ is required 11 to identify specific facts in the record that show that the claimant is 12 in less pain than he claims. Id. 13 14 Here, Plaintiff testified regarding numerous ailments and the 15 resulting symptoms. He stated that he needs the assistance of a walker 16 or a cane because of the pain in his foot. 17 cane has become unmanageable because of carpal tunnel in his hand. 18 23-24). 19 testified that he is unable to properly use his hand. (Id.). Plaintiff 20 also reported that he is unable to walk more than one block without 21 feeling pain. (AR 145). Regarding his back, Plaintiff stated it causes 22 “excruciating pain” and that “even laying down gets irritating, so 23 either I stand for a little bit, or I lay down.” (AR 23). Further, using a (AR Similarly, due to the condition in his hand Plaintiff has (AR 42). 24 25 Taking the record into consideration, the ALJ found “that the 26 claimant’s medically determinable 27 expected to produce the alleged symptoms, but that the claimant’s 28 statements concerning the intensity, persistence and limiting effects 17 impairments could reasonably be 1 of these symptoms are not entirely credible.” 2 decision 3 arbitrarily disregard Plaintiff’s testimony. contains sufficient reasoning to (AR 14). show that The ALJ’s he did not 4 5 The ALJ notes that Plaintiff testified as to his challenges with 6 Hepatitis C and carpal tunnel syndrome. (AR 14). However, the ALJ also 7 observed 8 concerning these conditions. 9 record for Plaintiff’s claimed need for a cane. a lack of evidence to support (Id.). Plaintiff’s allegations The ALJ found no support in the (Id.). Indeed, while 10 in prison, Plaintiff was evaluated and then denied a cane because his 11 ambulation was only “minimally impaired.” 12 that on examination dated July 25, 2006, Plaintiff had normal gait and 13 straight leg raising. (Id.). Similarly, the grip strength test results 14 of 60-65 pounds on his right hand and 50-55 pounds on his left hand, (AR 15 189), was proper grounds to disregard Plaintiff’s alleged inability to 16 properly grip objects. (AR 26).5 The ALJ noted 17 18 A major complaint from Plaintiff is the “excruciating pain” caused 19 by his back. 20 is minimal damage to his back. 21 by a lumbar spine x-ray. 22 revealed only (AR 42). mild However, numerous test results concluded there (AR Plaintiff’s back was found to be normal 160). osteoarthritis An x-ray of the cervical spine with no fractures. (AR 161). 23 24 25 26 27 28 5 Plaintiff’s testimony regarding his inability to walk more than a block was contradicted by an examination on July 25, 2006, which showed Plaintiff had normal gait and straight leg raising. (AR 189190). Plaintiff’s testimony regarding his walking ability was further undermined by his statement in his Daily Activities Questionaire that he “put[s] in a mile or two of walking a day,” swims and sits in a spa. (AR 125). 18 1 Plaintiff’s testimony was inconsistent with the record. Thus, it was 2 proper for the ALJ to find Plaintiff’s statements not credible. 3 Connett 4 credibility finding properly based on contradiction between subjective 5 complaints of pain and “normal” x-ray, CT scan, and myelogram results); 6 see also Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999)(claimant 7 properly discredited because hearing testimony was inconsistent with 8 medical evidence). v. Barnhart, 340 F.3d 871, 873 (9th Cir. See 2003)(negative 9 10 11 The ALJ provided Plaintiff’s testimony. clear and convincing reasons for rejecting As a result, remand is not required. 12 13 C. Because The Lay Witness Testimony Was Cumulative Of Plaintiff’s 14 Testimony, It 15 Express Reasons Was Harmless Error For ALJ To Reject Without 16 17 Plaintiff contends that reversal, or in the alternative, remand, 18 is necessary because the ALJ failed to properly consider the testimony 19 of Gail Wagner, Plaintiff’s fiancé. 20 specifically, Plaintiff contends that the ALJ failed to provide germane 21 reasons for disregarding relevant lay witness statements. 22 disagrees that a remand is necessary on this basis. (Complaint Memo at 8). More The Court 23 24 In determining whether a claimant is disabled, an ALJ must consider 25 lay witness testimony concerning a claimant’s ability to work. Stout 26 v. Commissioner, 454 F.3d 1050, 1053 (9th Cir. July 25, 2006); Smolen, 27 80 F.3d at 1288; 20 C. F. R. §§ 404.1513(d)(4) & (e), and 416.913(d)(4) 28 & (e). The ALJ may discount the testimony of lay witnesses only if she 19 1 gives “reasons that are germane to each witness.” 2 F.3d 503, 511 (9th Cir. 2001) (“Lay testimony as to a claimant’s 3 symptoms is competent evidence that an ALJ must take into account, 4 unless he or she expressly determines to disregard such testimony and 5 gives 6 omitted)); see also Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 7 1993). reasons germane to each witness for Lewis v. Apfel, 236 doing so.” (citations 8 9 If an ALJ fails to expressly consider lay witness testimony, the 10 court must determine whether the ALJ’s decision remains legally valid, 11 despite such error. Carmickle, 533 F.3d at 1162. If the ALJ’s ultimate 12 credibility determination and reasoning are adequately supported by 13 substantial evidence in the record, no remand is required. 14 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195-97 (9th Cir. 15 2004)). Id. (citing 16 17 Ms. Wagner testified on Plaintiff’s behalf on January 23, 2008. 18 (AR 47-53). She stated that despite Plaintiff’s trouble climbing stairs 19 he often attempts to alleviate his back condition by going up and down 20 a staircase. 21 house, does not go out for dinner, does not cook, and is generally 22 depressed because of his limitations. 23 unable to clothe himself and consequently, he requires assistance. 24 52). 25 when [she] met him.” 26 back goes out, he sleeps a lot, does not want to eat, does not do chores 27 anymore, does not drive, and does not have proper insurance to cover MRI 28 costs. (AR 47). Also, Plaintiff is unable to help around the (AR 48). His pain makes him (AR Ms. Wagner testified that Plaintiff is “not the same person as (AR 47-53). (AR 52). Ms. Wagner testified that Plaintiff’s While each of these assertions were noted by the 20 1 ALJ, he did not explicitly accept or reject Ms. Wagner’s testimony. (AR 2 14). Plaintiff contends that the ALJ’s failure to offer express reasons 3 to reject Ms. Wagner’s testimony was error. (Complaint Memo at 7). 4 5 However, Ms. Wagner’s statements essentially mirrored that of 6 Plaintiff’s own testimony and did not strengthen Plaintiff’s impairment 7 claims. 8 his pain he has trouble sleeping for more than a few hours. 9 52). Like Ms. Wagner, Plaintiff specifically testified that due to (AR 41, 51, Plaintiff testified to all the same limitations noted by Ms. 10 Wagner and the ALJ considered these limitations in his opinion. (AR 11 14). 12 unable to work in the same capacity with tools as he once did and he is 13 often tired and sleeps through the day. 14 failed to add any additional information for the ALJ to consider. Specifically, the ALJ took into consideration that Plaintiff is (Id.). Ms. Wagner’s statement 15 16 The ALJ’s failure to give express reasons for rejecting Ms. 17 Wagner’s testimony was harmless error. This Court concludes that no 18 reasonable ALJ would have reached a different decision based upon this 19 evidence even if Ms. Wagner’s statement were fully credited. See Stout, 20 454 F.3d at 1056 (“Where the ALJ’s error lies in a failure to properly 21 discuss competent lay testimony favorable to the claimant, a reviewing 22 court cannot consider the error harmless unless it can confidently 23 conclude that no reasonable ALJ, when fully crediting the testimony, 24 could have reach a different determination”). 25 ALJ rejected the testimony of Plaintiff because it was inconsistent with 26 the record. 27 Ms. Wagner, the ALJ implicitly rejected Ms. Wagner’s testimony. 28 reasonable ALJ could be swayed by testimony that is identical to As discussed above, the By rejecting Plaintiff’s testimony which mirrored that of 21 No 1 testimony that has already been properly rejected. The ALJ’s decision 2 was legally valid and supported by substantial evidence. 3 decision remains legally valid, it must be affirmed. See Carmickle, 533 4 F.3d at 1162 (relevant inquiry for harmless error analysis in social 5 security context is whether the ALJ’s decision remains legally valid, 6 despite error). As the 7 VIII. 8 CONCLUSION 9 10 11 Consistent with the foregoing, IT IS ORDERED that the decision of 12 the Commissioner is AFFIRMED. IT IS FURTHER ORDERED that the Clerk of 13 the Court serve copies of this Order and the Judgment herein on counsel 14 for both parties. 15 16 DATED: September 13, 2010 17 ______/S/_______________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 22
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