Herbert O. Keller, Jr. v. Michael J. Astrue, No. 5:2010cv00934 - Document 20 (C.D. Cal. 2011)
Court Description: MEMORANDUM OF DECISION by Magistrate Judge Andrew J. Wistrich. See document for details. (yb)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 13 14 15 16 HERBERT O. KELLER, JR., ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the Social ) Security Administration, ) ) Defendant. ) _____________________________________) Case No. EDCV 10-00934 AJW MEMORANDUM OF DECISION 17 18 Plaintiff filed this action seeking reversal of the decision of the defendant, the Commissioner of the 19 Social Security Administration (the Commissioner ), denying plaintiff's application for disability insurance 20 benefits and supplemental security income benefits. The parties have filed a Joint Stipulation ( JS ) setting 21 forth their contentions with respect to each disputed issue. 22 Administrative Proceedings 23 The parties are familiar with the relatively complex procedural history of this case, which involves 24 three stipulated remands for further administrative proceedings and several administrative hearings.1 [See 25 JS 2-3]. Plaintiff already has been adjudicated disabled as of April 1, 2006. [JS 2-4]. In this action, plaintiff 26 27 28 1 Administrative hearings were conducted in November 2003 [Administrative Record ( AR ) 143-165]; March 2006 [AR 431-466]; November 2007 [AR 892-924]; and July 2009 [AR 9761008]. 1 seeks judicial review of a final written hearing decision by an administrative law judge (the ALJ ) 2 concluding that plaintiff was not disabled between August 11, 2002, his alleged date of onset of disability, 3 and April 1, 2006. [JS 3-4]. 4 The ALJ found that prior to April 1, 2006, plaintiff had severe impairments consisting of type I 5 diabetes mellitus that was not well controlled, with recurrent hypoglycemic episodes. [AR 943]. The ALJ 6 determined that plaintiff had headaches that were not severe and had no medically determinable mental 7 impairments. The ALJ noted that the record prior to April 1, 2006 contained no objective evidence of 8 seizures, cognitive impairment, or cavernous hemangioma (vascular brain lesions) that led to the finding that 9 he was disabled on and after April 1, 2006. [See AR 467-478, 522-524, 533-534, 635-652, 956-957]. 10 The ALJ found that plaintiff s severe impairments, either singly or in combination, did not meet or 11 equal an impairment included in the Listing of Impairments. [AR 944]. See 20 C.F.R. Pt. 404, Subpt. P, 12 App. 1. The ALJ further found that prior to April 1, 2006, plaintiff retained the residual functional capacity 13 ( RFC ) to lift or carry fifty pounds occasionally and twenty-five pounds frequently, sit without restrictions 14 aside from needing normal breaks every two hours, and stand or walk for four hours total in an eight-hour 15 workday. Plaintiff could not climb ladders, balance, work at heights, operate motorized equipment, or work 16 near unprotected machinery. [AR 944]. The ALJ determined plaintiff could not perform his past relevant 17 work. [AR 947]. Based on the testimony of a vocational expert, the ALJ determined that the plaintiff had 18 acquired transferable skills and could perform alternative jobs that exist in significant numbers in the 19 national economy. The ALJ therefore concluded that the plaintiff was not disabled during the period at 20 issue. [AR 947-948]. The Appeals Council denied plaintiff's request for review. [JS 4]. 21 Standard of Review 22 The Commissioner s denial of benefits should be disturbed only if it is not supported by substantial 23 evidence or is based on legal error. Stout v. Comm r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 24 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). Substantial evidence means more than 25 a mere scintilla, but less than a preponderance. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 26 2005). It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 27 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is 28 required to review the record as a whole and to consider evidence detracting from the decision as well as 2 1 evidence supporting the decision. Robbins v. Soc. Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco 2 v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). Where the evidence is susceptible to more than one rational 3 interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld. Thomas, 4 278 F.3d at 954 (citing Morgan v. Comm r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)). 5 RFC finding 6 Plaintiff contends that in formulating plaintiff s RFC, the ALJ ignored objective sensor data 7 reflecting the frequency of plaintiff s episodes of hypoglycemia and hyperglycemia. Plaintiff contends that 8 the ALJ relied on incomplete evidence of the frequency of such episodes because he took into account only 9 the subjective hearing testimony and the records of emergency treatment plaintiff received for fluctuations 10 in his blood sugar levels. 11 The ALJ relied on the medical expert s testimony that plaintiff s type I diabetes and recurrent 12 hypoglycemic episodes did not preclude him from performing a range of medium work prior to April 1, 13 2006. [AR 944]. The ALJ noted that plaintiff s medical records documented twelve episodes of treatment 14 for hypoglycemia from 2002 through 2005. [AR 945]. The ALJ concluded, however, there were no 15 ongoing associated signs or findings reflecting end-organ damage incompatible with medium work prior to 16 April 2006. [AR 945]. Instead, plaintiff s clinical examinations were generally benign apart from elevated 17 blood sugars. [AR 945]. [E]ven in 2003, the year during which the most episodes were documented, 18 [plaintiff s] clinical presentations were not incompatible with regular and continuing work. [AR 945]. 19 The ALJ found that plaintiff s subjective allegations of experiencing more frequent or severe 20 hypoglycemic episodes were not corroborated by the record. [AR 946]. The ALJ noted, for example, that 21 during the most recent hearing in July 2009 as well as during the November 2003 hearing, plaintiff and his 22 wife could not remember some relevant details about the period at issue. [AR 946; see AR 994-996, 998- 23 1001]. Similarly, during the November 2003 hearing, plaintiff s testimony was unclear as to the frequency 24 of alleged hypoglycemic episodes. [AR 946]. During the March 2006 hearing, plaintiff testified that he had 25 been to the emergency room for hypoglycemic episodes five or six times since November 2003, while 26 his wife testified that it was two or three times, maybe even four in 2005, with another three in 2006 27 and more than that prior to 2005. [AR 946]. In addition, the ALJ noted that the state agency non- 28 3 1 examining physician, the consultative examining physician, and Dr. Landau all opined that plaintiff was not 2 disabled. [AR 945-946; see AR 125-128, 132-141, 980-985]. The ALJ also remarked that Dr. Webb, a 3 physician who last treated plaintiff in 2003, said in a December 2007 letter that he had no way of knowing 4 how often [plaintiff] experienced hypoglycemic events. [AR 946]. 5 The ALJ concluded that while plaintiff s blood sugar level was 6 not well controlled during the period at issue, episodes of hypoglycemia for which emergent 7 care was required are not reflected in the record as frequently as alleged, are not reflected so 8 frequently as to preclude the capacity for regular and continuing work, and are not associated 9 in treatment notes with sustained related clinical or laboratory pathology incompatible with 10 11 medium work. [AR 946]. 12 Plaintiff argues that the ALJ erroneously ignored record evidence documenting plaintiff s blood 13 sugar level readings from two sensors worn by plaintiff at different times showing wild fluctuations 14 consistent with hypoglycemia and hyperglycemia. [JS 5]. Plaintiff points to charts in the record 15 documenting CGMS Sensor data for four days: Monday, December 12, 2005 through Thursday, December 16 15, 2005. [AR 231]. A chart breaking down the sensor data states that plaintiff s blood glucose level, 17 measured in mg/dL (milligrams per decilitre), fluctuated between 45 and 289 on Monday, 45 and 294 on 18 Tuesday, 67 and 314 on Wednesday, and 45 and 318 on Thursday. [AR 233]. The chart indicates that a 19 high blood glucose level is above 180 mg/dL, and a low blood glucose level is under 70 mg/dL. [AR 20 233]. Notations on one page indicate that the author spoke to p[atien]t and made a recommendation to 21 change carb ratio to 1:10 and increase basal [illegible] by .01 pt . . . . [AR 231]. The author s signature 22 is illegible but is followed by the initials NP, indicating a nurse practitioner. [AR 231]. 23 Plaintiff also points to a 12-week recording of his blood glucose levels obtained from another sensor 24 during the period from January 5, 2006 through March 29, 2006. [AR 286-292]. During that period, 25 plaintiff s average blood glucose level was 184 mg/dL, with a minimum of 55 mg/dL and a maximum of 26 479 mg/dL. Some insulin level data and pump performance data also are reported. [AR 288]. Plaintiff 27 testified that he started using an insulin pump in 2004 or 2005 [AR 494, 910], prior to the date of both sensor 28 4 1 reports. 2 Plaintiff s contentions regarding the weight and significance of the sensor data lack support in the 3 record. Those data document fluctuations in plaintiff s blood glucose level above and below the target range 4 during a small fraction of the period at issue. However, nothing in those reports or elsewhere in the record 5 suggests that the sensor data show that plaintiff was disabled. The notations on the December 2005 chart 6 indicate that the sensor data were used as a tool for assessing and improving plaintiff s diabetes 7 management. Plaintiff has not pointed to any record evidence supporting his contention that the sensor data 8 are arguably the most important evidence in the file, and that those data document episodes of 9 hypoglycemia and hyperglycemia of such frequency and severity that plaintiff was disabled, or had a more 10 restrictive RFC than found by the ALJ, prior to April 1, 2006. 11 In the absence of any medical evidence suggesting that the sensor data translate into one or more 12 disabling functional limitations, plaintiff s argument that the ALJ improperly rejected that evidence fails. 13 Cf. Morgan, 169 F.3d at 595 (holding that the ALJ permissibly rejected an examining psychologist s opinion 14 that identified characteristics that might limit [the claimant s] ability to work on a sustained basis but did 15 not show how [the plaintiff s] symptoms translate into specific functional deficits which preclude work 16 activity ) (italics added). On the other hand, the ALJ rationally concluded that episodes of low or high blood 17 sugar that produced symptoms that were significant enough to prompt plaintiff or his wife to seek immediate 18 treatment were directly relevant to his RFC, but that those episodes were not so frequent as to preclude him 19 from working. [See AR 945-946]. 20 Furthermore, the record as a whole contradicts plaintiff s assertion that the ALJ completely failed 21 to take the sensor data into account in assessing plaintiff s RFC. The ALJ cited the exhibits containing the 22 sensor data in his analysis of the frequency of hypoglycemic episodes, albeit without specifically discussing 23 that data. [See AR 945 (citing Exhibits 8F (AR 231-255)); AR 946 (citing Exhibit 11F (AR 285-292))]. 24 Additionally, Dr. Landau s testimony suggests that he took that evidence into account in formulating his 25 opinion, which the ALJ adopted. Dr. Landau testified under oath that he had reviewed plaintiff s medical 26 records, which, of course, include the sensor data. [AR 981]. Dr. Landau acknowledged that plaintiff s type 27 I diabetes was not well controlled and that plaintiff had recurrent episodes of hypoglycemia, but he 28 5 1 concluded that plaintiff nonetheless retained the ability to work prior to April 1, 2006. [AR 981]. Asked 2 by the ALJ to explain the basis for his opinion, Dr. Landau explained, among other things, that having an 3 insulin pump implanted in 2005 seemed to improve [plaintiff s] ability to prevent frequent hypoglycemia 4 because I didn t see any after that. [AR 981]. In response to a question by plaintiff s counsel, Dr. Landau 5 also acknowledged that plaintiff s diabetic control was poor and [his] sugars were up and down. [AR 983]. 6 Dr. Landau s testimony creates the inference that he was aware of, and took into account, longitudinal 7 evidence of plaintiff s blood glucose levels. 8 Plaintiff was represented by counsel during the administrative hearing in July 2009. Plaintiff s 9 counsel had the opportunity to cross-examine Dr. Landau but did not ask him about the sensor data. [AR 10 978,983]. Plaintiff was represented by a different attorney during the administrative hearing in November 11 2007, and by yet another attorney during the March 2006 hearing. [See AR 486, 894]. At the conclusion of 12 the November 2007 hearing, the ALJ left the record open for 30 days for the submission of additional 13 evidence, in particular medical evidence corroborating plaintiff s subjective testimony that he experienced 14 frequent hypoglycemic episodes before April 1, 2006. [See AR 916-924]. A different ALJ presided over 15 the March 2006 hearing; he, too, left the record open for 30 days to permit plaintiff to submit records from 16 his endocrinologist or other evidence concerning the nature and severity of plaintiff s diabetic symptoms. 17 [See AR 515-519]. Therefore, plaintiff had ample opportunity to develop medical evidence regarding the 18 significance of the sensor data and the alleged severity and functional effects of hypoglycemia and 19 hyperglycemia, or to enlist the ALJ s assistance in developing such evidence. 20 21 The ALJ did not err in evaluating the medical evidence regarding plaintiff s hypoglycemia and hyperglycemia or in analyzing its effect on plaintiff s RFC. 22 Credibility finding 23 Plaintiff contends that the ALJ failed to articulate clear and convincing reasons for plaintiff s 24 subjective symptom testimony. 25 If the record contains objective evidence of an underlying physical or mental impairment that is 26 reasonably likely to be the source of a claimant s subjective symptoms, the ALJ is required to consider all 27 subjective testimony as to the severity of the symptoms. Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 28 6 1 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc); see also 20 C.F.R. ยงยง 404.1529(a), 2 416.929(a) (explaining how pain and other symptoms are evaluated). 3 malingering, the ALJ must then provide specific, clear and convincing reasons for rejecting a claimant s 4 subjective complaints. Vasquez v. Astrue, 547 F.3d 1101, 1105 (9th Cir. 2008); Carmickle v. Comm r, Soc. 5 Sec. Admin., 533 F.3d 1155, 1160-1161 (9th Cir. 2008); Moisa, 367 F.3d at 885. In reaching a credibility 6 determination, an ALJ may weigh inconsistencies between the claimant's testimony and his or her conduct, 7 daily activities, and work record, among other factors. Bray v. Comm r of Social Sec. Admin., 554 F.3d 8 1219, 1221, 1227 (9th Cir. 2009); Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir.1997). The ALJ's 9 credibility findings must be sufficiently specific to allow a reviewing court to conclude the ALJ rejected 10 the claimant's testimony on permissible grounds and did not arbitrarily discredit the claimant's testimony. 11 Moisa, 367 F.3d at 885. If the ALJ's interpretation of the claimant's testimony is reasonable and is supported 12 by substantial evidence, it is not the court's role to second-guess it. Rollins v. Massanari, 261 F.3d 853, 13 857 (9th Cir. 2001). Absent affirmative evidence of 14 Plaintiff summarizes his testimony as follows: 15 [H]e spends most of the day trying to control his blood sugar level by watching his diet and 16 his activity level. If he over-exerts himself, his blood sugar level sharply decreases, which 17 will cause him to experience symptoms such as fatigue, shaking[,] sweating and fainting. 18 He experiences similar feelings when his uncontrolled blood sugar is significantly elevated. 19 [Plaintiff] testified that, particularly during the period . . . at issue, he spent significant parts 20 of the day lying down because of his uncontrollable diabetes mellitus. 21 22 23 [AR 13 (citing AR 442-443, 446-448, 887-888)]. The ALJ provided legally sufficient reasons for rejecting the alleged severity of plaintiff s subjective complaints. 24 First, the ALJ reasonably concluded that plaintiff s testimony that he had episodes of hypoglycemia 25 or hyperglycemia that were of disabling frequency and intensity was inconsistent with the relatively limited 26 number of times plaintiff or his wife sought emergency treatment for such episodes between August 2002 27 and April 1, 2006. [See AR 235, 261, 827-892, 945, 947]. See Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 28 7 1 1989) (holding that the ALJ permissibly considered discrepancies between the claimant's allegations of 2 persistent and increasingly severe pain and the nature and extent of treatment obtained). For the reasons 3 already described, the ALJ did not err in failing explicitly to consider the sensor data in analyzing the 4 frequency with which such episodes occurred. 5 Second, the ALJ noted that prior to April 1, 2006, plaintiff did not have signs or findings of end- 6 organ damage incompatible with medium work, was neurologically intact, had generally benign clinical 7 examinations, and, despite his variable blood sugars, did not have sustained related clinical or laboratory 8 pathology that was inconsistent with the RFC finding made by the ALJ. [AR 945-946]. See Burch, 400 F.3d 9 at 681 ( Although lack of medical evidence cannot form the sole basis for discounting pain testimony, it is 10 a factor that the ALJ can consider in his credibility analysis. ). Plaintiff argues that the only real clinical 11 manifestations that should be expected in this case are fluctuating blood sugar levels, but that proposition 12 is not self-evident. [JS 7]. Plaintiff does not point to any medical opinion evidence to back up his argument 13 that the absence of end-organ damage or other clinical manifestations of complications of diabetes are 14 merely red herrings that do not amount to substantial evidence supporting the ALJ s credibility finding. 15 [JS 7]. 16 Third, the ALJ remarked that both plaintiff and his wife admitted at [the] hearing that their 17 recollection of the period in question was not very good, and that plaintiff s testimony during the November 18 2003 hearing also was unclear regarding his hospitalizations for diabetic symptoms. [AR 946]. During the 19 July 2009 hearing, for example, plaintiff testified that he could not remember whether he had worked during 20 the relevant period, as indicated by social security earnings statements showing earnings in 2005 and 2006; 21 described his daily activities only in very general terms; could not say for sure whether he was on 22 antidepressants; and could not remember the year he last worked; could not recall the name of medication 23 he was prescribed for migraines; and could not remember if his wife worked during that four-year period. 24 Plaintiff s wife testified that she had to call the paramedics many times, but she was unable to be specific 25 about the number of times she did so. [See AR 979-980, 986-990, 992, 994, 998-1001; see also AR 153- 26 154]. This may not be surprising given the lapse of time involved, but it nonetheless is a valid consideration. 27 See Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (holding that the ALJ was entitled to 28 8 1 consider the claimant a vague witness because his testimony on certain points was unclear or he lacked 2 recollection, and that use of such ordinary techniques of credibility evaluation was permissible). 3 Fourth, the ALJ permissibly concluded that plaintiff s daily activities as a factor that tended to 4 undermine plaintiff s testimony that his diabetic symptoms were disabling before April 1, 2006. During the 5 November 2003 hearing, plaintiff testified that he cared for his two young daughters four hours a day while 6 his wife was in school, cooked meals for his daughters and himself, read the Bible, occasionally did the 7 dishes, took out the trash, sometimes helped his wife change bedding, watched television, sometimes went 8 places with his wife and daughters, and drove after checking his blood sugar level to be sure it was high 9 enough. [AR 155-156, 157]. During the July 2009 hearing, plaintiff testified that his daily activities during 10 the period at issue included resting, watching television, reading the Bible, attending church, occasional 11 shopping, occasionally helping with the dishes, and microwave cooking. [AR 987-988, 993-994]. While 12 plaintiff s daily activities are not highly probative of his ability to work, there is some inconsistency between 13 his subjective allegations of disabling symptoms and his testimony that he could care for his two young 14 daughters for a significant part of the day during the period of alleged disability. See Morgan, 169 F.3d at 15 600 (holding that the claimant s ability to fix meals, do laundry, work in yard, and occasionally care for a 16 friend's child contradicted his subjective complaints of inability to work). 17 Finally, the ALJ noted that the Commissioner s consultative examining physician and two non- 18 examining physicians concluded that plaintiff was not disabled despite his allegedly disabling symptoms. 19 [AR 946]. For example, plaintiff told the examining physician, Dr. Mihelson, that he suffered from fatigue, 20 lack of energy, lack of muscle strength, dizziness, shortness of breath, and other symptoms, but Dr. Mihelson 21 concluded that plaintiff was not disabled. [AR 124-129]. See Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 22 1996) (holding that the ALJ properly rejected the claimant's pain testimony based, in part, on an examining 23 physician's opinion indicating that the claimant was not disabled). 24 Because the ALJ's interpretation of plaintiff s testimony is reasonable and is supported by substantial 25 evidence, the ALJ s credibility finding will not be disturbed. See Rollins, 261 F.3d at 857. 26 /// 27 /// 28 9 1 2 Conclusion For the reasons stated above, the Commissioner s decision is supported by substantial evidence and 3 is free of legal error. Accordingly, the Commissioner's decision is affirmed. 4 IT IS SO ORDERED. 5 6 7 8 June 29, 2011 _____________________________ ANDREW J. WISTRICH United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
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