Patrick Foor v. Michael J Astrue, No. 5:2010cv00836 - Document 25 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton, The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. (SEE ORDER FOR FURTHER DETAILS) (lmh)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 PATRICK FOOR, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 10-00836-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for 20 disability benefits. 21 consented that the case may be handled by the Magistrate Judge. 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the record before 24 the Commissioner. 25 ( JS ), and the Commissioner has filed the certified Administrative 26 Record ( AR ). Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the Joint Stipulation 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge ( ALJ ) properly 1 considered Plaintiff s pain testimony, and otherwise failed 2 to provide adequate reasons for his finding that Plaintiff s 3 testimony was not credible; 4 2. 5 6 Whether the ALJ properly considered lay witness testimony from Plaintiff s girlfriend; and 3. Whether the ALJ properly assessed the compounding effects of 7 Plaintiff s pain, injuries and impairments, including his 8 diabetes and pain medication, on his ability to sustain 9 gainful employment. 10 (JS at 2-3.) 11 12 This Memorandum Opinion will constitute the Court s findings of 13 fact and conclusions of law. After reviewing the matter, the Court 14 concludes that the decision of the Commissioner must be affirmed. 15 16 I 17 THE ALJ PROPERLY EVALUATED PLAINTIFF S PAIN TESTIMONY 18 In Plaintiff s first issue, he asserts that the ALJ failed to 19 properly evaluate his subjective pain testimony. Indeed, Plaintiff s 20 description of his pain is so extreme that, as he concedes in his 21 portion of the JS, If credited, plaintiff s testimony would require 22 a finding of disability. (JS at 4.) 23 In the course of Plaintiff s work as a petroleum technician, he 24 suffered a series of on-the-job injuries which eventually led him to 25 stop working. 26 suffered in 1987; a broken neck in 1990; and low back and left wrist 27 injuries which he sustained in 2005 or 2006. (See AR at 13.) 28 right knee surgery in 1999. He developed continuing pain in his right He described these as a crushed right elbow which he 2 He had 1 elbow. 2 helped, but he asserts that he developed arthritic right elbow pain 3 which increased over time. 4 symptom of neck pain, and various surgeons considered surgery which 5 would fuse four of his neck vertebrae in 2007. 6 because he was afraid of the risks. 7 to work, but in 2005, he incurred two work-related injuries to his 8 left hand and lower back, which led to radiating leg and arm pain, 9 ulnar nerve entrapment in his left elbow, and tendinitis in his left 10 He had surgery on his right elbow in April 2005 which at first He continued treating for an increasing Plaintiff declined Despite this pain, he continued wrist. (AR 11-13, 29, 204, 390.) 11 At the administrative hearing on June 16, 2008 (AR 18-54), 12 substantial attention was devoted to the issue of pain. Plaintiff 13 indicated he spends most of his time in bed, and even so, he suffers 14 constant excruciating neck pain. (AR 31.) He takes medication which 15 only helps a little bit mentally. (Id.) He has throbbing pain in 16 his right elbow because of what he asserts to be severe arthritis in 17 that joint. 18 kind of pushing or pulling, and even brushing his teeth or shampooing 19 his hair results in excruciating pain. He also has constant radiating 20 pain in his left arm which sometimes causes him to lose his grip. (AR 21 32.) He attributes these symptoms to a work injury which he indicates 22 locks my elbow up and I can t straighten it. 23 and everything are like somebody smashed it with a sledgehammer. (AR 24 33.) His elbow locks up on him, preventing him from doing any Or my bones in my hands 25 Due to another injury Plaintiff sustained while working, he has 26 been subsequently afflicted with constant back pain for which he takes 27 medicine. (AR 35.) This pain is a pinching, burning, just a real 28 soreness. (AR 36.) Any activity increases the level of his pain. 3 1 2 (Id.) Even lying in bed makes it worse. (Id.) For his pain, Plaintiff takes the medications Ultram, Lyrica, and 3 Ativan for sleeping. (Id.) In addition he takes Celebrex. (Id.) He 4 complains of side effects such as confusion from these medications. 5 (AR 37.) 6 As a result of this onslaught of pain, Plaintiff says that he 7 mostly lays in bed during the day and just tries to move around but 8 otherwise, he is pretty helpless. (AR 39.) 9 The ALJ assessed a residual functional capacity ( RFC ) to 10 perform light work as defined in 20 C.F.R. §§404.1567(b) and 11 116.967(b), except that Plaintiff is unable to lift more than 10 12 pounds frequently with his left (non-dominant) hand; he is unable to 13 do activities such as climbing ladders, ropes or scaffolds; he can 14 only occasionally bend his right (dominant) elbow if the range of 15 movement exceeds 40 to 95 degrees; and he is unable to perform skilled 16 work due to possible medication side effects. (AR 12.) 17 With regard to Plaintiff s complaints of pain, the ALJ evaluated 18 Plaintiff s credibility, and ultimately found that Plaintiff was not 19 credible to the extent that his pain complaints are inconsistent with 20 the RFC assessment. (AR 14.) 21 The applicable law which binds the ALJ in the credibility 22 analysis concerning excess pain is well known, and is encompassed in 23 a comprehensive series of regulations and cases. The underlying 24 regulation 25 potential conflicts between subjective pain testimony and objective 26 evidence. 27 subjective pain will not be rejected solely because the available 28 medical evidence does not substantiate the claimant s statements. is 20 C.F.R. §404.1529, which attempts to reconcile Thus, it clearly indicates that a claimant s complaints of 4 On 1 the other hand, the Commissioner will evaluate pain statements in 2 relation to the objective medical evidence and other evidence. 3 Encompassed within this regulation, and reiterated in Social 4 Security Ruling ( SSR ) 96-7p are a series of factors which must be 5 evaluated, which 6 medication and 7 precipitating 8 frequency and intensity of pain or other symptoms, and other factors 9 concerning functional limitations and restrictions. include side and activities effects of aggravating of daily medication, factors, the living ( ADL ), treatments received, location, duration, 10 A reviewing court must determine that the credibility finding is 11 sufficiently specific so that the reasons underlying it are clear, and 12 properly supported by the record. 13 Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). See SSR 96-7p, and Thomas v. 14 15 A. 16 The ALJ found that Plaintiff does have underlying medically 17 determinable physical impairments which could reasonably be expected 18 to produce pain or other symptoms. Having passed this first step, the 19 ALJ then evaluated the intensity, persistence and limiting effects of 20 these symptoms based on the credibility factors set forth in cases and 21 regulations, which the Court has briefly summarized above. 22 Analysis. The ALJ focused in some detail on inconsistencies between the 23 objective medical evidence and Plaintiff s extreme pain complaints. 24 As noted, this cannot be the sole reason to reject a claimant s 25 credibility, but it is certainly highly relevant. 26 ALJ correctly noted (and Plaintiff has not disputed this), that 27 several of his doctors, including his workers compensation doctors, 28 did not find him to be totally disabled. 5 In doing so, the In July 2007, Plaintiff was 1 examined by orthopedic surgeon Dr. Uppal, an Agreed Medical Examiner 2 ( AME ), 3 Plaintiff was capable of working with no heavy lifting with his right 4 or left arm (AR 13, 353.) 5 examination conducted in February 2007 by Dr. To, functioning as a 6 consultative internal medicine examiner ( CE ). 7 Plaintiff was capable of performing light level work. 8 with 9 Plaintiff s range of motion was decreased and he complained of range in the regard to workers compensation Plaintiff s case, who determined that This opinion was consistent with an neck pain, Dr. Dr. To found that To In particular, indicated that 10 of motion pain. 11 Plaintiff complained, Dr. To found no evidence of deformity, swelling 12 or tenderness. 13 back 14 Plaintiff s back pain does not elicit true findings of nerve root 15 irritation. There is a decrease in the range of motion, and Plaintiff 16 complained of some range of motion pain. Considering his examination, 17 other than restricting Plaintiff from working with heavy and moving 18 machinery, he assessed no relevant limitations. (AR 288.) pain, With regard to the multiple joint pains of which Further, the ranges of motion were all normal. upon physical examination, Dr. To concluded As to that 19 As to Plaintiff s postponement of neck surgery, his argument is 20 that the Court should reject the ALJ s reliance on this factor in the 21 credibility analysis because Plaintiff feared undergoing this type of 22 surgery which he considered possibly dangerous. 23 the Court cannot outright reject the fair conclusion to be drawn from 24 Plaintiff s failure to engage in surgery that he must be able to 25 tolerate what he describes as excruciating pain which prevents him 26 from even getting out of bed most of the time. 27 carry risks, and may instill a feeling of anxiety or even fear, the 28 articulation of such does not 6 remove Certainly, however, While any surgery may the issue from fair 1 consideration, especially in a case where an individual is claiming 2 such an extreme level of pain that it prevents him from performing 3 even the most conservative ADLs. 4 With regard to medications, while Plaintiff asserted during the 5 hearing that they were not totally effective, the Court must give 6 credence to the ALJ s evaluation that because Plaintiff had been on 7 these medications for such a long period of time, a fair inference can 8 be drawn that they are somewhat helpful. Indeed, the ALJ acknowledged 9 that because of side effects of medication, Plaintiff could not 10 perform his past relevant work, although the record only indicates 11 that Plaintiff suffered side effects from Vicodin, but not the other 12 medications. (AR 36, 377-378, 382, 390, 395.) 13 Plaintiff complains of side effects from his other medications, such 14 complaints are not supported by objective evidence in the record. 15 any event, the ALJ allowed for this in determining Plaintiff s RFC. To the extent that In 16 It was also not unreasonable for the ALJ to indicate that there 17 was some lack of corroborating objective medical evidence in the 18 record. 19 of Plaintiff s left hand which resulted in normal findings (AR 12, 20 233, 365); a 2005 x-ray of his left wrist which also was normal (AR 21 11, 242); thus, the ALJ found that these normal test results were 22 inconsistent with the extreme pain complaints which Plaintiff made. 23 (AR 14.) 24 revealed that he had degenerative disc disease with mild stenosis. (AR 25 12, 345, 347.) In February 2008, during an examination, Plaintiff had 26 full range of motion in his neck, and no evidence of any muscle spasm. 27 (AR 398.) 28 primary care physician, Plaintiff had full muscle strength in his There is a citation in the Decision to an MRI scan and x-ray In December 2006, Plaintiff underwent an MRI scan which During the same examination, which was conducted by his 7 1 upper extremities and his lower extremities. (AR 399.) It is difficult 2 to conceive that in individual who claims that brushing his teeth or 3 shampooing his hair causes excruciating and unbearable pain would, on 4 multiple examinations, be found to have such normal findings. Similar 5 results were obtained on testing of Plaintiff s lower back. (Id.) 6 The Court notes that the ALJ also relied upon possible secondary 7 motivation, based on Plaintiff s receipt of worker s compensation 8 income which possibly reflected upon his motivation to work. (AR 14.) 9 The Court considers this to be a disfavored factor which should only 10 be 11 individuals who are injured on the job apply for and receive worker s 12 compensation benefits, and that is their right. It does not mean that 13 they have a motivation not to work. 14 seeking benefits from the Social Security Administration can be 15 equated to a secondary motive not to work. 16 are 17 qualifying work. 18 citation of this factor, but on the other hand, the credibility 19 analysis in the ALJ s decision is well-supported by other factors 20 which were properly relied on in the credibility evaluation. 21 22 cited not where welfare, there but is can strong be evidence awarded supporting it. Many It also does not mean that Social Security benefits based upon a individual s The Court does not intend to rely upon the ALJ s Based on the foregoing, the Court rejects Plaintiff s first issue. 23 24 II 25 THE ALJ PROPERLY CONSIDERED TESTIMONY FROM 26 PLAINTIFF S GIRLFRIEND, DEBRA SUE FOSTER 27 28 At the administrative hearing, testimony was taken from Debra Sue Foster, Plaintiff s live-in girlfriend.(AR 44-47.) 8 This is noted in 1 the Decision, where the ALJ reiterated her testimony that she does all 2 of the driving and cooking because Plaintiff is unable to turn his 3 head and use his hands and arms; that she does most of the household 4 chores; and that Plaintiff can only do light chores when she is not at 5 home. (AR 15.) 6 included her observations that Plaintiff was unable to turn his head 7 and use his hands and arms. (JS at 18.) 8 9 Plaintiff also notes that Ms. Foster s testimony The ALJ may only reject testimony of a lay witness if sufficient reasons are provided in the decision. See Lewis v. Apfel, 236 F.3d 10 503, 511 (9th Cir. 2001). 11 credible, but indicated that it does not establish that the claimant 12 is unable to work. 13 incorporated into the claimant s residual functional capacity as 14 reflected above. (AR 15.) 15 ALJ to have interpreted these statements in a completely literal 16 sense, because one would then have to conclude that Plaintiff is 17 unable to turn his head or use his hands and arms. Even Plaintiff did 18 not testify to this extreme level of limitation, and certainly, the 19 objective medical evidence, which the Court has summarized in some 20 detail, fails to support it in any substantial degree. 21 extent that the ALJ incorporated the lay witness s testimony into the 22 RFC determination, there is no error. Further, to the extent that 23 extreme limitations were not accepted, the Court finds no error, 24 because 25 limitations, these statements are only credible to the extent of the 26 RFC determined in the decision. 27 // 28 // as with Here, the ALJ found Ms. Foster s testimony The limitations described by the witness are It would not be reasonable to expect the Plaintiff s own 9 description of Thus, to the his pain and 1 III 2 THE ALJ PROPERLY ASSESSED THE COMPOUNDING EFFECTS 3 OF PLAINTIFF S PAIN, INJURIES AND IMPAIRMENTS 4 In Plaintiff s third issue, he asserts, effectively, that the ALJ 5 failed to account for the evidence as a whole, instead selectively 6 pointing to and relying upon certain evidence which supported his 7 conclusion that Plaintiff is not disabled. 8 notes that the ALJ improperly relied upon the February 1, 2007 CE of 9 Dr. To, who incredibly found that Plaintiff had normal ranges of For example, Plaintiff 10 motion for his joints. (JS at 22, citing AR 287.) But Plaintiff 11 overlooks the fact that even his primary treating physician, in a 12 report of February 20, 2008, came to almost identical conclusions. (AR 13 394-401.) 14 Plaintiff further asserts that the reports upon which the ALJ 15 relied did not consider Plaintiff s credible pain testimony. (JS at 16 22.) 17 found not totally credible for good and sufficient reasons, as set 18 forth in the Decision. 19 worker s compensation physicians only focused on his work-related 20 injuries, fails to account for the fact that these evaluations were 21 consistent with those reached by non-worker s compensation physicians, 22 such as Dr. To. But as the Court has noted, Plaintiff s pain complaints were Plaintiff s final contention, that the 23 To the extent that Plaintiff asserts there is error with regard 24 to the testimony of the vocational expert ( VE ), the Court does not 25 agree, based upon its own review of the record. 26 the hypothetical question, the VE asked for clarification which was 27 provided. (AR 50-51.) 28 Plaintiff could perform After the ALJ posed Thereafter, the VE identified jobs that which were 10 slightly eroded based upon 1 Plaintiff s RFC. (AR 51.) 2 account the limitations set forth by the ALJ in the hypothetical 3 question. 4 because they contain restrictions of which he is not capable is not a 5 compelling argument, because these restrictions were not found by the 6 ALJ and therefore were not properly incorporated into Plaintiff s RFC. 7 While Plaintiff may disagree with that assessment, the Court cannot 8 find sufficient reason to disagree with it or to overturn it. 9 10 11 The jobs identified by the VE did take into Plaintiff s assertion that he cannot do certain jobs The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 12 13 DATED: September 16, 2011 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

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