Richard Eugene Lira v.Michael J. Astrue, No. 5:2010cv01280 - Document 16 (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 RICHARD EUGENE LIRA, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 10-01280-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 the relevant medical evidence of record; and 2 2. Whether the ALJ properly considered Plaintiff s subjective 3 4 complaints and those statements made by third parties. (JS at 3.) 5 6 This Memorandum Opinion will constitute the Court s findings of 7 fact and conclusions of law. After reviewing the matter, the Court 8 concludes that the decision of the Commissioner must be affirmed. 9 10 I 11 THE ALJ PROPERLY CONSIDERED THE RELEVANT MEDICAL EVIDENCE OF RECORD 12 In Plaintiff s first issue, he asserts that the ALJ failed to 13 account for and evaluate the report of Dr. Kalfuss, dated July 22, 14 1993. (See AR at 257-283.) 15 temporarily totally disabled by Dr. Kalfuss from the period July 27, 16 1990 through January 1991. 17 Plaintiff to a significantly narrowed range of light work in 1993, and 18 that he had described Plaintiff s condition as degenerative and 19 progressive, Plaintiff questions how the ALJ, 17 years later, could 20 assess that he had a greater physical capacity for work than he did in 21 1993. 22 consistent with other medical opinions rendered concurrently, such as 23 that of Dr. King in 1992 (AR 309) and Dr. Sanford, in 1990 (AR 248). 24 Plaintiff has filed several applications, which were denied as Plaintiff notes that he was found to be Noting that Dr. Kalfuss had limited Finally, Plaintiff notes that Dr. Kalfuss opinions are 25 recently as 1997 and 2005. (AR 10.) The ALJ noted that there was no 26 basis for reopening these decisions, and Plaintiff does not claim 27 otherwise. 28 The ALJ determined that Plaintiff has not been disabled within the Thus, they are subject to administrative res judicata. 2 1 meaning of the Social Security Act any time after November 7, 2007, 2 the date of his most recent application for Supplemental Security 3 Income ( SSI ). 4 With regard to the ALJ s evaluation of medical opinions, he did 5 not, in fact, ignore the opinions of Drs. Kalfuss or Sanford. 6 Dr. Sanford, the ALJ characterized his diagnostic opinion as a remote 7 document. (AR 13.) 8 Sanford s opinion does not speak to the disability time frame at 9 issue. 10 11 As to Nevertheless, the ALJ correctly noted that Dr. Indeed, Dr. Sanford s November 1990 report predates the starting point of that period by 17 years. Dr. Kalfuss 1993 opinion was rendered as part of Plaintiff s 12 workers compensation claim. 13 disability date at issue. 14 relevant medical evidence have been obtained during the period of 15 disability, 16 examination and report is, the less importance it will have in the 17 disability analysis. 18 degenerative condition, that was only a prediction, and would not 19 support a current finding of disability. 20 necessary to go down that avenue, because in this case the ALJ 21 obtained two current independent medical evaluations. 22 orthopedic consultative examiner, saw Plaintiff in late 2007, and 23 wrote a report on December 22 of that year. (AR 204-207.) 24 a physical examination, Dr. Altman assessed Plaintiff s capacity as 25 being able to lift and carry 20 pounds occasionally and 10 pounds 26 frequently; to walk and stand for six hours in an eight-hour workday; 27 to sit for six hours in an eight-hour workday; frequent postural 28 activities it as is well fair This report is 14 years prior to the While, certainly, it is not required that to state that the more remote such an Here, while Dr. Kalfuss may have projected a as agility In any event, it is not activities; 3 no Dr. Altman, an Following assistive device 1 necessary; and gross and fine manipulations can be done without 2 restrictions. (AR 207.) 3 Plaintiff could perform light work with some limitations. 4 consistent with the ALJ s residual functional capacity ( RFC ). (AR 5 13.) 6 This is consistent with an assessment that It is also Plaintiff was also examined by Dr. Goldman, an independent 7 psychological examiner. (AR 208-211.) After examining Plaintiff and 8 performing objective testing, Dr. Goldman wrote a report in which he 9 concluded that Plaintiff was malingering. (AR 208-211, at 210.) 10 Plaintiff refused to answer Dr. Goldman s questions concerning his 11 activities (AR 209), and also refused to take part in psychological 12 testing. (AR 210.) 13 Plaintiff s concern about the ALJ s failure to rely upon a 14- 14 year-old report which substantially predated the disability period is 15 without merit. 16 probative value at all. 17 he was employed as a painter in 2006 (AR 10), and as a mixer until 18 2003 (AR 205). Thus, the Court finds that the ALJ properly determined 19 Plaintiff s RFC based on current medical evidence in the record, and 20 while he did not ignore Dr. Kalfuss opinion from 1993, he accorded it 21 less credibility because it was so stale. 22 the ALJ properly performed his function of weighing conflicting 23 evidence in reaching his conclusion regarding disability. It is difficult to conceive why that report has any Indeed, while Plaintiff asserts disability, The Court concludes that 24 25 II 26 THE ALJ DID NOT ERR IN ASSESSING PLAINTIFF S CREDIBILITY 27 In Plaintiff s second issue, he asserts that the ALJ did not 28 properly consider his subjective statements regarding his pain and 4 1 other symptomology. 2 his pain statements, and performed no credibility analysis at all. 3 An examination Indeed, Plaintiff asserts that the ALJ ignored of the ALJ s opinion does not corroborate 4 Plaintiff s claims that the credibility issue was ignored. 5 contrary, 6 Plaintiff s credibility. First, he noted Dr. Altman s assessment that 7 Plaintiff was malingering. (AR 14.) 8 sufficient to support an adverse credibility determination. See 9 Benton ex. rel. v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). The the ALJ set forth several reasons for To the depreciating A finding of malingering is 10 ALJ went further, and cited additional reasons. First, the ALJ noted 11 that the objective medical evidence did not support Plaintiff s 12 extreme allegations. 13 complaints and the objective medical evidence is not a sufficient 14 reason, in and of itself, to depreciate credibility, it is relevant in 15 combination with other factors. 16 F.3d 1155, 1161 (9th Cir. 2008). While a discrepancy between subjective pain See Carmickle v. Commissioner, 533 17 In addition to the foregoing, the ALJ noted that Plaintiff s 18 subjective complaints were inconsistent with his activities of daily 19 living ( ADL ). 20 remain disabled, but where an ability to perform ADLs is inconsistent 21 with the existence of a condition that would preclude all work 22 activity, it may be recognized in the credibility analysis. See Curry 23 v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1990). 24 assessed that Plaintiff could perform light work with some physical 25 restrictions, and this is not inconsistent with Plaintiff s ability to 26 ride a bicycle, shop, and perform other like activities. 27 28 Certainly, an individual can do some ADLs and yet Here, the ALJ Finally, the ALJ noted that Plaintiff had received very little medical treatment over the years. This is a recognized credibility 5 1 assessment factor. 2 See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). 3 4 Based on the foregoing, the Court finds no error in the ALJ s credibility analysis. 5 Finally, the lay witness statement of Janet Powell, Plaintiff s 6 friend, provides identical information to that provided by Plaintiff. 7 (See AR 156-163, 164-170.) 8 the ALJ s failure to reach any different conclusion based on the lay 9 witness statement of Ms. Powell. Plaintiff s 11 statements was on no consequence in the determination of disability. 12 At most, it constituted harmless error. 13 Social Security Administration, 454 F.3d 1056, 1053 (9th Cir. 2006. 15 16 his Further, since the ALJ depreciated 10 14 credibility, As such, there is no reversible error in failure to address Ms. Powell s See Stout v. Commissioner of The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 17 18 19 DATED: May 5, 2011 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 6
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