Charles Luther v. Michael J Astrue, No. 5:2010cv00228 - Document 16 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION and ORDER by Magistrate Judge Marc L. Goldman. (See Order for details) (db)
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Charles Luther v. Michael J Astrue Doc. 16 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 EASTERN DIVISION 9 10 CHARLES LUTHER, 11 Plaintiff, 12 13 14 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 10-00228-MLG MEMORANDUM OPINION AND ORDER 17 18 Plaintiff Charles Luther seeks judicial review of the Social 19 Security Commissioner’s denial of his application for disability 20 insurance benefits (“DIB”). For the reasons stated below, the 21 decision 22 dismissed with prejudice. of the Commissioner is affirmed and the action is 23 24 I. Facts and Procedural Background 25 Plaintiff was born on October 17, 1948. He has a high school 26 education and has work experience as a truck driver for a freight 27 company. (Administrative Record (“AR”) 40, 147, 152.) Plaintiff 28 filed an application for DIB on January 12, 2006, alleging 1 Dockets.Justia.com 1 disability as of November 26, 1997, due to disorders of the back 2 (discogenic and degenerative), muscle and ligament disorders and 3 Post-Traumatic Stress Disorder (“PTSD”). (AR 10, 40.) Plaintiff had 4 been granted benefits for a closed period of time between June 1, 5 1994 6 decision. (AR 42-44.) Plaintiff’s date last insured was September 7 30, 2001.1 (AR 10.) to May 1, 1996, following a November 25, 1997 hearing 8 Plaintiff’s current application was denied initially and upon 9 reconsideration. (AR 49-53, 57-61.) An administrative hearing was 10 held October 29, 2007, before Administrative Law Judge (“ALJ”) 11 Joseph Schloss. (AR 738-750.) On November 17, 2007, ALJ Schloss 12 issued an unfavorable decision. (AR 26-35.) 13 Plaintiff sought judicial review and the parties entered into 14 a stipulated remand in which Plaintiff’s PTSD claim would be heard 15 by 16 administrative 17 Plaintiff, represented by attorney Bill LaTour, testified, as did 18 Plaintiff’s wife, Rosie Luther, medical expert David Glassmire and 19 vocational expert Sandra Fioretti. (AR 695-737.) a different ALJ. hearing (84-88.) was On held October before ALJ 26, 2009 Michael a second Radensky. 20 ALJ Radensky issued an unfavorable decision on December 7, 21 2009. (AR 5-13.) The ALJ found that Plaintiff had not engaged in 22 substantial gainful activity since the alleged onset date of 23 November 26, 1997. (AR 10.) The ALJ further found that Plaintiff 24 25 26 27 28 1 In order to qualify for disability insurance benefits, Plaintiff is required to establish that he was disabled on or before the date his insured status expired. 20 C.F.R. §404.131(b)(1); Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1394 (9th Cir. 1984); Flaten v. Secretary of Health & Human Serv., 44 F.3d 1453, 1463 (9th Cir. 1995). 2 1 suffered from the following severe impairments: a history of back 2 surgery, post-traumatic stress disorder, and a history of carpal 3 tunnel syndrome. (Id.) The ALJ then determined that Plaintiff’s 4 impairments did not meet the requirements of a listed impairment 5 found in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.) The ALJ 6 also found that there was no medical evidence in the record to 7 support Plaintiff’s claim of PTSD prior to his date last insured of 8 September 30, 2001. (AR 12.) The ALJ concluded that Plaintiff was 9 not disabled as defined in the Social Security Act. (Id.) 10 Plaintiff commenced this action on February 22, 2010, and on 11 August 17, 2010, the parties filed a joint stipulation (“Joint 12 Stp.”) of disputed facts and issues, including the following: (1) 13 the ALJ failed to properly develop the record because he did not 14 seek Veterans Affairs (“VA”) records and (2) the ALJ failed to 15 properly develop the record because he did not seek medical records 16 from the Loma Linda VA. (Joint Stp. 2.) Plaintiff asks the Court to 17 reverse and order an award of benefits, or, in the alternative, 18 remand for further proceedings. (Joint Stp. 6.) The Commissioner 19 requests that the ALJ’s decision be affirmed. (Joint Stp. 7.) 20 21 22 II. Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 23 Commissioner’s 24 decision must be upheld unless “the ALJ’s findings are based on 25 legal error or are not supported by substantial evidence in the 26 record as a whole.” Tackett v. Apfel, 180 F.3d 1094 (9th Cir. 27 1999); 28 Substantial evidence means more than a scintilla, but less than a Parra decision v. Astrue, to deny 481 benefits. F.3d 3 742, 746 The Commissioner’s (9th Cir. 2007). 1 preponderance; it is evidence that a reasonable person might accept 2 as adequate to support a conclusion. Lingenfelter v. Astrue, 504 3 F.3d 1028, 1035 (9th Cir. 2007)(citing Robbins v. Soc. Sec. Admin., 4 466 5 substantial evidence supports a finding, the reviewing court “must 6 review the administrative record as a whole, weighing both the 7 evidence that supports and the evidence that detracts from the 8 Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 720 9 (9th Cir. 1996). “If the F.3d 880, 882 (9th Cir. 2006)). evidence can To support determine either whether affirming 10 or reversing the ALJ’s conclusion,” the court “may not substitute 11 its judgment for that of the ALJ.” Robbins, 466 F.3d at 882. 12 13 III. The ALJ Properly Developed the Record 14 Plaintiff claims that the ALJ abrogated his duty to develop 15 the record because he did not seek VA disability pension records 16 and Loma Linda VA medical records. (Joint Stp. 2.) Plaintiff argues 17 that, because he testified at the administrative hearing that he 18 had been granted a disability pension by the VA in 2004 and because 19 he testified that he received mental health treatment at the Loma 20 Linda VA sometime in the “early 2000's,” this triggered the ALJ’s 21 duty to develop the record. (Joint Stp. 3, 5; AR 712, 715.) In this 22 regard, 23 regarding his claim of PTSD dates primarily from 2006 to the 24 present, more than five years after his date last insured of 25 September 30, 2001. (AR 195-694.) it must be noted that Plaintiff’s medical evidence 26 A disability applicant bears the burden of proving disability 27 and must provide medical evidence demonstrating the existence and 28 severity of an alleged impairment. See Mayes v. Massanari, 276 F.3d 4 1 453, 459 (9th Cir. 2001); 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 2 416.912(c). Nonetheless, an ALJ has a “duty to develop the record 3 fully and fairly and to ensure that the claimant’s interests are 4 considered, even when the claimant is represented by counsel.” 5 Mayes, 276 F.3d at 459. An ALJ’s duty to augment an existing record 6 is triggered “only when there is ambiguous evidence or when the 7 record 8 evidence. Id. (citing Tonapetyen v. Halter, 242 F.3d 1144, 1150 9 (9th Cir. 2001)). is inadequate to allow for proper evaluation of the 10 Plaintiff argues that his vague statements regarding his VA 11 pension and mental health treatment at the VA “sometime in the 12 2000's” triggered the ALJ’s duty to develop the record. However, 13 there were no ambiguous medical records or conflicting medical 14 findings regarding the existence or severity of Plaintiff’s PTSD 15 which would trigger the ALJ’s duty to further develop the record. 16 Rather, there simply was no medical evidence at all prior to the 17 date last insured of September 30, 2001 suggesting the existence of 18 such a mental impairment. If medical records existed regarding 19 Plaintiff’s PTSD that were relevant to the period of disability, 20 either Plaintiff himself or his attorney could have procured these 21 records, rather than expecting the ALJ to do so. See Bowen v. 22 Yuckert, 482 U.S. 137, 146 n.5 (“It is not unreasonable to require 23 the claimant, who is in a better position to provide information 24 about his own medical condition, to do so.”); Duenas v. Shalala, 34 25 F.3d 719, 722 (9th Cir. 1994). 26 Plaintiff appears to be attempting to shift his burden of 27 proving disability to the Commissioner. However, Plaintiff has 28 never asserted, either at the hearing or in this action, a theory 5 1 upon which his PTSD interferes with his ability to work. The ALJ 2 had adequate evidence to evaluate Plaintiff’s testimony regarding 3 his PTSD and did not abrogate his duty to develop the record. See 4 Grissom v. Astrue, 2009 WL 1309506, at *5 (C.D.Cal. 2009) (single 5 reference to possible history of mental health treatment did not 6 trigger duty to further develop record where claimant offered no 7 other evidence of such treatment); Orcutt v. Barnhart, 2005 WL 8 2387702, at *4 (C.D.Cal. 2005) (“An ALJ does not fail in her duty 9 to develop the record by not seeking evidence or ordering further 10 examination 11 impairment if no medical evidence indicates that such an impairment 12 exists.”). or consultation regarding a physical or mental 13 In addition, the ALJ properly relied upon the testimony of 14 medical expert Dr. David Glassmire, Ph.D., who reviewed all of 15 Plaintiff’s medical records and determined that there was nothing 16 in the evidence to support a determination of PTSD prior to March 17 2004, when Plaintiff was diagnosed with PTSD by the VA. (AR 12, 18 703-706.) See Morgan v. Comm. of Social Sec. Admin, 169 F.3d 595, 19 600 (“Opinions of a nonexamining, testifying medical advisor may 20 serve as substantial evidence when they are supported by other 21 evidence in the record and are consistent with it.”). 22 Plaintiff has failed to show that the evidence is ambiguous or 23 that the record is inadequate to allow for proper evaluation of the 24 evidence. The ALJ was under no obligation to further develop the 25 record. See Mayes, 276 F.3d at 459-60. 26 // 27 // 28 // 6 1 2 3 IV. Conclusion For the reasons stated above, the decision of the Commissioner is affirmed. 4 5 Dated: August 27, 2010 6 7 ______________________________ Marc L. Goldman United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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