Frank Gallegos v. Michael J. Astrue, No. 5:2010cv01445 - Document 28 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Ralph Zarefsky. The decision of the Commissioner is affirmed. IT IS SO ORDERED. (mz)

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O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 FRANK GALLEGOS, 12 13 14 15 Plaintiff, vs. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) CASE NO. ED CV 10-01445 RZ MEMORANDUM OPINION AND ORDER 17 The Administrative Law Judge found that, for the year-long period between 18 January 2007 and January 2008, Plaintiff met one of the listings for disability, but that he 19 was not disabled either before or after that time. Plaintiff alleges four errors in the non- 20 disability determination. The Court finds no error, however, and therefore affirms the 21 Commissioner s decision. 22 Plaintiff first asserts that the Administrative Law Judge erred in finding that 23 Plaintiff s depression was non-severe. In large part, Plaintiff relies on records he submitted 24 after the Administrative Law Judge already had made his decision. The Administrative 25 Law Judge hardly can be faulted for not basing his decision on records that had not yet 26 been supplied. 27 Still, the Court is required to consider the entire record, including materials 28 made of record before the Appeals Council. Ramirez v. Shalala, 8 F.3d 1449, 1451-53 (9th 1 Cir. 1993). The Appeals Council allowed the late-submitted records to be part of the 2 administrative record, so the question is whether they required a change in the finding by 3 the Administrative Law Judge. 4 The Court concludes that they do not. The record is clear that Plaintiff refused 5 to see a consulting mental health professional, and this failure is fatal to his claim that his 6 impairment is severe; indeed, it is grounds for denying his application as to a mental 7 impairment entirely, even if the impairment were severe. See 20 C.F.R. ยง 404.1518(a). 8 Given Plaintiff s failure, it is hard to put any credence into his argument in this Court that 9 the Administrative Law Judge failed to have a medical expert testify at the hearing as to 10 this matter. 11 Plaintiff s second argument is that the Administrative Law Judge erred in her 12 assessment of Plaintiff s asthma and obesity. However, Plaintiff leaves this argument 13 hanging; he does not demonstrate any way in which there was any error. In particular, he 14 does not demonstrate how his combination of asthma and obesity affected his functioning 15 in some way that the Administrative Law Judge did not consider. 16 Plaintiff s third argument also is vague. He asserts that the Administrative 17 Law Judge erred in her assessment of Dr. Rotterman, Plaintiff s orthopedist. The 18 Administrative Law Judge did say that she did not place a great deal of weight in 19 Dr. Rotterman s check-list evaluation [AR 20] as the cases allow her to do. Batson v. 20 Commissioner of Social Security Administration, 359 F.3d 1190 (9th Cir. 2004). Plaintiff 21 does not say, however, what opinion of Dr. Rotterman s he thinks the Administrative Law 22 Judge should have assessed differently. In any event, the Administrative Law Judge listed 23 half a dozen reasons that she did not put a lot of stock in Dr. Rutterman s assessment [AR 24 20] and, again, case law backs her up. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 25 1989); Batson, supra; Sandgathe v. Chater, 108 F.3d 978, 980 (1997). 26 Plaintiff s final argument is that the Administrative Law Judge wrongly 27 determined that he was not fully credible, and wrongly ignored a lay questionnaire. The 28 Administrative Law Judge was required to give specific and legitimate reasons for -2- 1 disbelieving Plaintiff as to the level of his pain or other subjective symptoms, Smolen v. 2 Chater, 80 F.3d 1273 (9th Cir. 1996), and she did so. The medical evidence was not 3 consistent with Plaintiff s assertions, as almost all the physicians agreed that he could 4 perform light work. Medical evidence is one factor that an Administrative Law Judge can 5 consider in determining a claimant s credibility. Rollins v. Massanari, 261 F. 3d 853, 857 6 (9th Cir. 2001). In addition, for the period that he was determined not to be disabled, fairly 7 conservative care was advised. See Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir. 8 1995). And, as noted, Plaintiff refused to attend a consulting examination, thereby 9 showing a lack of cooperation that made his testimony suspect. The Administrative Law 10 Judge acted within her scope of authority in concluding from these factors that Plaintiff s 11 testimony as to the level of his pain was not to be believed. 12 It is true that the Administrative Law Judge did not discuss the lay witness 13 written statement from Plaintiff s mother. Assuming that she was required to do so (the 14 statement was not under oath, and Plaintiff s mother did not testify, so she could not 15 answer questions about it), any error was harmless, as the statement merely mirrored 16 Plaintiff s testimony, which the Administrative Law Judge properly had found wanting. 17 See Valentine v. Astrue, 574 F.3d 685, 694 (9th Cir. 2009). In accordance with the foregoing, the decision of the Commissioner is 18 19 20 affirmed. IT IS SO ORDERED. 21 22 DATED: November 17, 2011 23 24 25 RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE 26 27 28 -3-

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