Rene Rodriguez Jr. v. Michael J. Astrue, No. 5:2010cv01598 - Document 22 (C.D. Cal. 2011)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal; Consistent with the foregoing, and pursuant to sentence four of 42 U.S.C. § 405(g),2 IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. See order for further details. (jy)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RENE RODRIGUEZ, JR., 12 Plaintiff, 13 14 15 ) ) ) ) ) ) ) ) ) ) ) ) v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 16 Defendant. NO. EDCV 10-01598 (SS) MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Plaintiff Rene Rodriguez, Jr. ( Plaintiff ) brings this instant 22 action seeking to overturn the decision of the Commissioner of the 23 Social Security Administration (hereinafter the Commissioner or the 24 Agency ) 25 Disability Insurance Benefits ( DIB ). 26 filed a request to proceed In Forma Pauperis ( IFP request ) and lodged 27 a complaint (the Complaint ). 28 Plaintiff s IFP request and filed his Complaint. denying his application for period of disability and On October 19, 2010, Plaintiff On October 25, 2010, this Court granted Pursuant to this 1 Court s October 26, 2010 order, the Commissioner filed an answer 2 ( Answer ) and a certified Administrative Record ( AR ) on February 24, 3 2011. 4 support of his Complaint ( Plaintiff s Memorandum ) on April 25, 2011, 5 and the Commissioner filed a memorandum in support of the Commissioner s 6 Answer ( Commissioner s Memorandum ) on June 24, 2011. 7 consented 8 Magistrate Judge, pursuant to 28 U.S.C. § 636(c). 9 stated below, the decision of the Commissioner is AFFIRMED. Plaintiff then filed a memorandum of points and authorities in to the jurisdiction of the undersigned The parties United States For the reasons 10 11 II. 12 PROCEDURAL HISTORY 13 14 Plaintiff filed an application for DIB on June 20, 2008. (AR 86). 15 In his application, Plaintiff claimed he became disabled on June 1, 16 2008. 17 October 3, 2008. 18 Plaintiff s claim again on reconsideration. 19 2009, Plaintiff requested a hearing before an Administrative Law Judge 20 ( ALJ ). 21 (AR 70). (Id.). The (AR 63). Agency initially denied Plaintiff s claim on (AR 54-57). On February 4, 2009, the Agency denied (AR 58-62). On April 2, The Agency scheduled a hearing for March 2, 2010. 22 23 At the hearing, Plaintiff and Luis Moss, a vocational expert, 24 testified before the ALJ. (AR 23-51). On April 9, 2010, the ALJ issued 25 an unfavorable decision. 26 ALJ s decision. (AR 5). On August 19, 2010, the Appeals Council denied 27 Plaintiff s request, and the ALJ s decision became final. (AR 6-18). 28 2 Plaintiff requested review of the (AR 1-3). 1 III. 2 FACTUAL BACKGROUND 3 4 Plaintiff was born on May 11, 1971 and was 37 at the time of the 5 alleged onset of disability. (AR 16, 83, 86). He has reported 6 completing twelfth grade, (AR 98), and can speak and understand English. 7 (AR 93). 8 worked as a warehouse associate, cashier and security guard. 9 39). Prior to the onset of the alleged impairments, Plaintiff (AR 138- Plaintiff alleged that he cannot work due to back pain from 10 ruptured discs, headaches, depression, and Carpal Tunnel Syndrome 11 ( CTS ). (AR 29, 44, 94, 104, 213). 12 13 A. Plaintiff s Medical Evidence 14 1. 15 Dr. Sadler 16 17 Dr. Charles Sadler initially examined Plaintiff on November 11, 18 1997, prior to the alleged onset of disability. 19 Sadler s 20 constant sharp lower back pain but denied any numbness, tingling, loss 21 of bladder control or loss of bowel control. 22 reported that the pain interfered with his ability to perform basic 23 physical activities like sitting, standing, walking and driving. 24 214). 25 back that occurs approximately fifty percent of the time. 26 Sadler noted that both Plaintiff s neck and back motions were minimally 27 or initial physical examination, Plaintiff (AR 212). In Dr. complained (AR 213-14). of a Plaintiff (AR Plaintiff also complained of a dull pain in his neck and upper slightly limited with associated 28 3 complaints of (Id.). pain and Dr. that 1 Plaintiff s right posterior iliac crest was tender. 2 Dr. Sadler reported no other abnormalities. (AR 215-216). (AR 215-217). 3 4 Dr. Sadler recommended and scheduled an MRI of Plaintiff s lumbar 5 spine on December 4, 1997. 6 November 3, 1998, approximately ten years prior to the alleged onset of 7 disability, Dr. Sadler stated that Plaintiff s MRI showed significant 8 abnormalities. (AR 219). Dr. Sadler also noted that Plaintiff s x-rays 9 showed minimal degenerative changes. (AR 218). On that date, Plaintiff 10 reported numbness and tingling in both his right hand and leg. (Id.). 11 The physical examination revealed that Plaintiff s neck motion was still 12 minimally limited with associated complaints of pain. 13 straight 14 bilaterally. 15 strain, a probable lumbar spine disc rupture and bilateral carpal tunnel 16 syndrome. leg raising and (AR 218). (AR 217, 225-26). L4-S1 motor function In his notes from (Id.). However, were both intact Dr. Sadler diagnosed Plaintiff with a cervical (AR 218). 17 18 Dr. Sadler opined that Plaintiff had certain work restrictions, but 19 he added that the restrictions were partially prophylactic and that the 20 restrictions could be relaxed if Plaintiff used bilateral wrist braces 21 with metal reinforcement. 22 temporary total disability would have been reasonable from September 2, 23 1997 to November 3, 1998, (AR 220), Plaintiff was not a candidate for 24 surgery at that time. 25 he resumed work in April 2001. 26 // (AR 219-20). (AR 221). Although Dr. Sadler added that Plaintiff reported to the Agency that (AR 139). 27 28 4 2. 1 Plaintiff s Treatment Records 2 3 Shalini Bhatia, D.O., wrote a discharge summary of Plaintiff s 4 hospitalization from October 9, 2007 to October 13, 2007 due to open 5 wounds on his feet. 6 reported that Plaintiff was normal other than obesity and decreased 7 erythema of the lower extremity. 8 emergency room report regarding the same hospitalization. (AR 148-49). 9 Dr. Martinez also reported that Plaintiff had a normal review of systems 10 (AR 146-47). Dr. Bhatia examined Plaintiff and (Id.). Dr. Roger Martinez wrote an other than the wounds on the lower extremities. (AR 148). 11 12 Similarly, Dr. Hanna Demarco examined Plaintiff and reported a 13 normal physical besides Plaintiff s obesity and foot wounds. (AR 150- 14 52). 15 October 10, 2007. 16 with a diabetic foot infection and ordered a three-phase bone scan and 17 x-ray of Plaintiff s foot. 18 osteomyelitis, and the x-ray revealed no acute pathology. 19 163). At Dr. Demarco s request, Dr. Brian Lipman examined Plaintiff on (AR 151, 153-54). Dr. Lipman diagnosed Plaintiff (AR 154). The bone scan revealed no (AR 161, 20 21 Plaintiff visited the Riverside County Regional Medical Center 22 emergency room due to back pain on June 27, 2008. 23 Plaintiff walked into the emergency room without assistance after being 24 dropped off. 25 history of chronic back pain since 1997 and complained of localized 26 lower back pain on the right side of his body and bilateral hand pain. 27 (AR 166, 170). 28 the back pain as a nine out of ten, and rated the hand pain as a seven (AR 166, 170). (AR 166-171). During the visit, Plaintiff reported a Plaintiff described the back pain as an ache, rated 5 1 out of ten. (AR 170). The physician s exam revealed generalized pain 2 in Plaintiff s right flank without redness or swelling. 3 physician diagnosed Plaintiff with chronic back pain, (id.), made no 4 diagnosis regarding the hand pain, (see AR 166-171), and prescribed 5 Motrin, Flexeril and Novolin N. (AR 167). The (AR 168, 171). 6 7 3. Consulting Doctors 8 9 On September 19, 2008, Dr. Kristof Siciarz, a board eligible 10 internal medicine specialist, submitted a summary report of an internal 11 medicine evaluation. 12 as reported by Plaintiff and examined Plaintiff. 13 reported that [Plaintiff] state[d] he has had back pain since 1997 14 after a work injury. (AR 172). Plaintiff also reported to Dr. Siciarz 15 that he was diagnosed with bilateral carpal tunnel syndrome in 1997. 16 (Id.). 17 significant for diabetes and hypertension. (AR 172-76). Dr. Siciarz took a medical history (Id.). Dr. Siciarz Dr. Siciarz reported that Plaintiff s past medical history was (Id.). 18 19 Regarding Plaintiff s treatment history, Plaintiff did not report 20 any past surgical procedures, taking any medications at that time, or 21 any drug allergies. (AR 172-73). 22 surgery that other doctors recommended. Plaintiff stated he had declined back (AR 172). 23 24 At the time of the examination, Plaintiff complained of a dull 25 ache in the lower lumbar area that radiates down to the right leg and 26 numbness down the right leg. (Id.). Plaintiff stated that his symptoms 27 intensified with bending and lifting but improved with rest. 28 Plaintiff also complained of intermittent twitching in his hands, sharp 6 (Id.). 1 pain in the back of his neck 2 intermittent leg swelling. for approximately four years, and (Id.). 3 4 Dr. Siciarz s physical examination discovered no significant 5 abnormalities. 6 Plaintiff is morbidly obese, his [m]ovements [were] noted to be 7 normal, he [did] not use an assistive device for ambulation, he 8 could sit comfortably without shifting, and he is able to stand up 9 from a sitting position and sit up from the supine position without 10 difficulty. (AR 173). Dr. Siciarz s back inspection [did] not reveal 11 any evidence of significant kyphosis, lordosis, or noticeable scoliosis. 12 Palpation along the paravertebral area does not elicit complaints of 13 pain. 14 limits. 15 Siciarz reported that Plaintiff s gait and station were within normal 16 limits. 17 generally unremarkable or normal, (AR 173-175), and Plaintiff s mental 18 status was normal, observing that [Plaintiff s] sensorium is clear and 19 alert. 20 fo the evaluation. The (AR range 175). of Dr. motion Siciarz appears reported to be Straight-leg rising is negative, bilaterally. (AR 174). that, within although normal (AR 174). Dr. Dr. Siciarz also found that all other systems were [Plaintiff] is oriented to person, place, time, and the purpose (AR 173). 21 22 Dr. Siciarz found that Plaintiff s functional capacity was 23 restricted by Plaintiff s obesity, diabetes and hypertension. (AR 175). 24 Specifically, Dr. Siciarz restricted Plaintiff to pushing, pulling, 25 lifting and carrying fifty pounds occasionally and twenty-five pounds 26 frequently. 27 and walking only six hours of an eight hour day. 28 did not restrict Plaintiff s ability to sit for extended periods of (Id.). Dr. Siciarz also restricted Plaintiff to standing 7 (Id.). However, he 1 time. (Id.). Dr. Siciarz 2 participate in postural activities or activities requiring agility and 3 did not restrict Plaintiff from hearing, seeing, speaking or using 4 Plaintiff s hands. 5 than the ones imposed by the ALJ. (Id.). found Plaintiff could occasionally Dr. Siciarz recommended fewer restrictions (AR 12). 6 7 On October 2, 2008, Dr. Thu Do completed a Residual Functional 8 Capacity Assessment form. (AR 177-81, 183). 9 Dr. Siciarz s conclusions, but added that Plaintiff can only sit for six (AR 178). The assessment mirrored 10 hours of an eight hour day. Although more restrictive than 11 Dr. Siciarz s recommendations, Dr. Do recommended fewer restrictions on 12 Plaintiff than the ones found by the ALJ. (AR 12). 13 14 On January 28, 2009, Dr. Reynaldo Abejuela, a diplomate of the 15 American Board of Psychiatry & Neurology and a diplomate of the American 16 Board of Forensic Examiners, performed a complete psychiatric evaluation 17 of Plaintiff. 18 stated feeling depressed, feeling anxious and preferring isolation. (AR 19 187). 20 a 21 medication. (AR 186-192). Dr. Abejuela reported that Plaintiff Despite these feelings, Plaintiff stated that he was not seeing psychiatrist or therapist and was not taking any psychiatric (Id.). 22 23 Plaintiff reported trouble sleeping, waking up four to six times 24 at night. (Id.). 25 and weight loss despite weighing 425 pounds. 26 complained of headaches but denied suicidal or homicidal ideation. 27 (Id.). Plaintiff Plaintiff described experiencing loss of appetite also denied experiencing 28 8 (Id.). guilt, Plaintiff helplessness, 1 worthlessness, hopelessness or a decrease in pleasurable activities. 2 (Id.). 3 4 Plaintiff reported no history of psychiatric hospitalization and 5 denied drug or alcohol use. 6 able to care for his hygiene and grooming without assistance, has no 7 hobbies or 8 others. (AR 188). outside (AR 187-88). activities, and Plaintiff stated that he was has fair relations with 9 10 Dr. Abejuela s observed that Plaintiff could walk without an 11 assistive device. 12 cooperative and non-hostile, and he noted no psychomotor retardation or 13 agitation. 14 limits and commensurate to his level of education. 15 discussion, Dr. Abejuela stated that Plaintiff has some mild depression 16 and mild anxiety. 17 comprehension remain[ed] intact and commensurate with [Plaintiff s] 18 educational level and cultural background. Cognitive function [was] 19 within normal [limits]. 20 Plaintiff had, at most, mild psychiatric limitations. 21 Abejuela concluded Plaintiff had a fair to good prognosis. (AR 192). (Id.). (Id.). Dr. Abejuela reported that Plaintiff was Plaintiff s cognitive function was within normal (AR 190). (Id.). In his However, [Plaintiff s] [r]easoning and (AR 190-91). Dr. Abejuela reported that (AR 191). Dr. 22 23 4. Other Agency Observations 24 25 In a Field Office Disability Report Form dated June 20, 2008, M. 26 Douglas interviewed Plaintiff in person. 27 observations 28 difficulty with any of the major categories of functionality, including section, Mr. Douglas 9 reported (AR 90-92). that Under the Plaintiff had no 1 sitting, standing, walking, using hands or writing. (AR 91). Mr. 2 Douglas also noted that Plaintiff was pleasant and cooperative and in 3 no apparent ortho distress. (Id.). 4 5 B. Plaintiff s Testimony 6 1. 7 Plaintiff s Hearing Testimony 8 9 On March 2, 2010, Plaintiff appeared pro se and testified at the 10 hearing that he stopped working at the end of May 2008 as an armed 11 security guard because of a back injury. 12 that he had applied for desk type jobs since that time but has not 13 received any responses. 14 pain [in his] lower back caused by a ruptured disc that occurred 15 during [his] employment with Avery Dennison. 16 elaborated that he was picking up a box and felt a sharp pain in his 17 back. (AR 29). (AR 27). Plaintiff reported Plaintiff also described extreme (Id.). Plaintiff (AR 30). 18 19 Plaintiff testified that he did not have surgery to remedy his back 20 problems because [a]t the time, [the doctors] weren t giving 21 [Plaintiff] a good outcome of the surgery. (AR 30-31). Later, the ALJ 22 continued to question Plaintiff regarding treatments for his back. (AR 23 34). 24 he opted to go with epidural injections. Plaintiff stated that the doctors suggested fusing his discs, but (Id.). 25 26 Plaintiff stated that he takes Novolin and Glyburide for his 27 diabetes and reported that he currently takes Vicodin, Motrin, and over- 28 the-counter drugs Advil and Tylenol for his back pain. 10 (AR 32, 35-36). 1 Plaintiff also stated he has not received anything stronger than Vicodin 2 from his current doctor, but a prior doctor in Las Vegas provided 3 OxyContin. 4 relaxer. 5 . . . [the medication will] help for the temporary. . . fix, but the 6 pain doesn t go away. (AR 36-37). (AR 37). Plaintiff also stated taking Soma, a muscle He testified that the pain is there all the time (AR 32-33). 7 8 9 Plaintiff believed that doctors last x-rayed his spine in 2008 during an emergency visit. (AR 32). When the ALJ informed Plaintiff 10 that the medical records from the emergency room visit did not contain 11 an x-ray, Plaintiff responded that [he] went to the ER. 12 ALJ also asked Plaintiff regarding the MRI mentioned in Dr. Sadler s 13 report. (AR 14 Hearing. (Id.). 15 rupture. 16 me. 17 taken on December 4, 1997. 33). (Id.). (Id.). Plaintiff produced the MRI (Id.). during The the The ALJ stated, [The MRI] says then there was no To which, Plaintiff replied, That s what he told Plaintiff also stated he has not had an MRI since the MRI (AR 33-34). 18 19 Plaintiff also testified that he experiences pain while sitting and 20 standing and stated that [i]f [Plaintiff] sit[s], 20/30 minutes . . . 21 [he] feel[s] the discomfort depending on how [he] sit[s]. 22 Plaintiff stated that he can only stand for fifteen to twenty minutes 23 before experiencing pain. 24 too much because his fingers will start cramping and twitching due to 25 his CTS. (AR 35). (AR 34). He testified that he cannot lift (Id.). 26 27 Plaintiff 28 granddaughter. stated he (AR 38-39). lives with his mother and a sibling s Plaintiff initially testified that he does 11 1 no chores but later stated that he picks up [his] clothes and [his] 2 room. (AR 40). However, Plaintiff reported that any little activity, 3 such as dusting, would cause pain. 4 primarily watches television while laying in bed and that he has not 5 driven a vehicle in two years because [driving] is uncomfortable for 6 [Plaintiff]. (Id.). Plaintiff stated that he (AR 37-38, 40). 7 8 9 The ALJ asked Plaintiff about his weight. (AR 41-42). Plaintiff testified that he is five feet ten inches tall and weighed over 400 10 pounds. (AR 41). Plaintiff testified that doctors told him to lose 11 weight and he had successfully reduced his weight to approximately 375 12 pounds but subsequently gained the weight back. 13 suggested a gastric bypass or an adjustable gastric band to help with 14 his weight control. (Id.). Doctors later (AR 41-42). 15 16 Plaintiff stated that he has been depressed since his injury, 17 suffers from migraines that cannot be relieved, and experiences a 18 numbing sensation in both legs. 19 experienced any pain radiating down his legs, Plaintiff stated that it 20 was [l]ike a sharp pain that radiates down each leg, one at a time, 21 with greater frequency on his right side. (AR 45-46). (AR 44, 46). When asked if Plaintiff 22 23 Plaintiff testified reporting depression and migraines to doctors. 24 (AR 44). Although Plaintiff s 25 Plaintiff s migraines, the doctors did not prescribe any anti-depression 26 medication because Plaintiff was not medically depressed. 27 Plaintiff also testified that he has not had any infections in his feet 28 since his hospitalization in 2007. 12 doctors (AR 46). prescribed Vicodin for (AR 45). 1 2. Plaintiff s Adult Function Report 2 3 On January 3, 2009, Plaintiff filled out an adult function report 4 form and a headache questionnaire provided by the Agency. 5 In his function report, Plaintiff reported he only sleeps about 4-5 6 hours of broken sleep due to pain. 7 that he has lower back pain, bilateral hand pain, bilateral leg pain and 8 headaches. 9 (Id.). (Id.). (AR 118). (AR 118-27). Plaintiff elaborated Plaintiff continued describing his typical day. After waking up at about 5AM-6AM, Plaintiff reported taking 10 over-the-counter medication, taking hot showers, and using heating pads 11 for temporary pain relief. (Id.). 12 13 Plaintiff stated he could not put shoes on without pain but 14 described no other difficulties with self care. 15 stated he prepares his own simple meals, such as sandwiches and frozen 16 foods, approximately once a day. 17 is unable to do any household chores but also states that he needs 18 encouragement and family member help to do his chores. (AR 120). (AR 119). Plaintiff Plaintiff stated that he (AR 120). 19 20 Plaintiff reported that he goes outside around once a week, that 21 he rides in a car when traveling, and that he could not go outside alone 22 because sometimes [Plaintiff s] back gives out . . . . 23 Plaintiff also reported that he drives, (id.), inconsistent with his 24 testimony that he has not driven in the past two years. 25 Plaintiff reported shopping in stores for personal items approximately 26 once a month. 27 or interest that he does everyday. (AR 121). (Id.). (AR 37-38). Plaintiff reported watching T.V. as a hobby 28 13 (AR 122). Plaintiff reported 1 spending time with others but also reported difficulties getting along 2 with others because he becomes anti-social. (AR 122-23). 3 4 Plaintiff reported being able to walk one to two blocks before 5 needing a five to ten minute rest. (AR 123). Plaintiff reported that 6 he can follow written and spoken instructions well and that he has no 7 problems getting along with authority figures. (AR 123-24). 8 9 In his headache questionnaire, Plaintiff reported his headaches 10 became severe on or around July 2008. (AR 126). Plaintiff reported 11 daily headaches with varying intensity. (Id.). Plaintiff described the 12 pain as a sharp pain from back of neck to top of head. 13 Plaintiff reported that doctors had not diagnosed the type of headache 14 and treated his symptoms only with over-the-counter medication. 15 127). However, the medication has not been effective at all times. 16 (Id.). Plaintiff reported that his headaches were not treated due to 17 his medical insurance. (Id.). (AR (Id.). 18 19 C. Third Party Testimony 20 21 On January 3, 2009, Iris Perez, Plaintiff s mother, filled out a 22 third party function report. (AR 110-17). 23 nearly identical to Plaintiff s report, in some cases using nearly 24 identical language (Compare AR 111 with AR 119). 25 that Plaintiff spends most of his day in bed due to pain. 26 Ms. Perez also reported that Plaintiff prepares his own meals, stating 27 that [Plaintiff] is able to do a quick meal[,] something fast[.] 28 [U]nable to stand for long time. (AR 112). 14 Ms. Perez s statements are Ms. Perez reported (AR 110). Ms. Perez stated that 1 Plaintiff prepares food once a day, taking him approximately five to ten 2 minutes. (AR 112). 3 4 Ms. Perez reported that Plaintiff participates in household chores, 5 with assistance from family members. 6 reported that [Plaintiff] is unable to do house/yard work due to pain. 7 (AR 8 approximately once a week if that. 9 Plaintiff shops for personal needs and is able to shop for 30-60 113). Ms. Perez also (Id.). reported that However, Ms. Perez Plaintiff (Id.). goes outside Ms. Perez also reported 10 minutes. According to Ms. Perez, Plaintiff is able to pay bills, count 11 change, handle a savings account, and use checkbooks or money orders. 12 (Id.). 13 14 Ms. Perez stated that Plaintiff cannot do anything with heavy 15 activity and he primarily watches television. 16 reported plaintiff spends time with family members that live with 17 Plaintiff 18 telephone. 19 difficulties getting along with others because [Plaintiff] has become 20 anti-social and short tempered. 21 can only walk one to two blocks before needing a five minute rest. 22 (Id.). 23 instructions well, and that Plaintiff can interact with authority 24 figures well. 25 \\ 26 \\ 27 \\ or (Id.). talked to family (AR 114). members Ms. Perez on the However, Ms. Perez reported that Plaintiff had (AR 115). Ms. Perez stated Plaintiff Ms. Perez reported that Plaintiff follows written and spoken (AR 115-16). 28 15 1 D. Plaintiff s Waiver Of Counsel 2 3 The Agency sent Plaintiff a letter dated October 3, 2008 that 4 informed Plaintiff that his claim had been denied. (AR 54-57). On page 5 three and four of that letter, the Agency wrote the following: 6 7 If You Want Help With Your Appeal 8 9 You can have a friend, lawyer, or someone else help you. 10 There are groups that can help you find a lawyer or give you 11 free legal services if you qualify. 12 who do not charge unless you win your appeal. 13 Social Security office has a list of groups that can help you 14 with your appeal. There are also lawyers Your local 15 16 (AR 56-57) (emphasis in original). The Agency also provided Plaintiff 17 with a telephone number to call if he had questions. 18 February 4, 2009, the Agency sent another letter notifying Plaintiff 19 that his claims had been denied again. 20 contained the same notice as the October 3, 2008 letter. (AR 57). (AR 58-62). On That letter (AR 61). 21 22 On May 22, 2009, the Agency sent Plaintiff a letter confirming 23 receipt of Plaintiff s request for a hearing. 24 stated 25 representative to the hearing to assist: that Plaintiff may choose 26 27 28 16 to bring (AR 64-67). a lawyer The letter or another 1 Your Right to Representation 2 3 You may choose to be represented by a lawyer or other person. 4 A representative can help you get evidence, prepare for the 5 hearing, and present your case at the hearing. 6 to have a representative, you should find one immediately so 7 that he or she can start preparing your case. If you decide 8 9 Some private lawyers charge a fee 10 benefits. 11 free of charge. 12 only if you receive Some organizations may be able to represent you receive any fee unless we approve it. Your representative may not charge or 13 14 (AR 64-65) (emphasis in original). The Agency also included a brochure 15 entitled Your Right to Representation and a list of contacts to help 16 find legal representation. (AR 66-68). 17 18 Prior to Plaintiff s March 2, 2010 hearing, the Agency sent a 19 Notice Of Hearing to Plaintiff. (AR 70-82). 20 same brochure as the May 22, 2009 letter, (AR 74, 76-77), and explained 21 the hearing process. 22 Luis O Mas, who would be testifying at the March 2, 2010 hearing. 23 81-82). 24 of the VE testimony, the type of questions the VE would be asked, and 25 who could ask questions. 26 [q]uestions 27 representative, if any). (AR 71-73). The letter included the The ALJ also enclosed a letter to VE (AR The enclosure contained a notification that stated the purpose may also (AR 82). be asked The notice explicitly stated that of (Id.). 28 17 [the VE] by [Plaintiff] (or 1 At the March 2, 2010 hearing, the ALJ discussed with Plaintiff his 2 right to counsel. 3 (AR 25). The ALJ directed the following question to Plaintiff: 4 5 I need to talk to you about a right that you have and that s 6 the right to have an attorney or other representative here 7 with you. 8 have. 9 previously and I see you re today without representation. Is 10 It s not a requirement, but it is a right that you I know that you have been advised of this right it your wish to proceed today without representation? 11 12 (Id.). Plaintiff replied [y]es, waiving his right to counsel at the 13 hearing. (Id.). 14 15 E. ALJ s Efforts To Develop The Record 16 17 1. Record Requests 18 19 On June 25, 2008, the Agency contacted St. Rose Dominican Hospital 20 requesting Plaintiff s 21 specifically identified the alleged impairments and noted that the 22 Agency requested the dates of treatment, the history of the impairments, 23 the objective clinical findings, as well as the diagnosis and prognosis 24 based on the clinical findings. 25 opinion regarding Plaintiff s ability to do work-related physical 26 and/or mental activities as appropriate. 27 Hospital 28 hospital stay from October 9 to October 13, 2007. submitted medical notes and records. (Id.). 144). The Agency The letter also asked for an diagnostic 18 (AR (AR 145). results St Rose Dominical from Plaintiff s (AR 146-63). 1 On December 24, 2008, the Agency contacted Riverside County 2 Regional Medical Center to obtain Plaintiff s medical records. 3 164). 4 impairments and a request for specific information. 5 also requested a statement based on medical findings that expressed the 6 treating doctor s opinion regarding Plaintiff s ability to do work 7 related activities. (AR 165). Riverside County Regional Medical Center 8 provided six pages of notes from a June 28, 2008 emergency room visit. 9 (AR 166-71). On January 13, 2009, the Agency followed up for additional 10 (AR The letter provided some identifying information, the alleged records. (Id.). The letter (AR 207). 11 12 In a May 22, 2009 letter, the Agency explained the hearing process 13 to Plaintiff and also stated that Plaintiff should submit any additional 14 evidence that Plaintiff intended for the ALJ to consider. (AR 65). The 15 letter explained that [i]f a physician, expert or other witness is not 16 cooperating with the production of documents important to [Plaintiff s] 17 case, [Plaintiff] may ask the ALJ to issue a subpoena that requires a 18 person to submit documents or testify at [Plaintiff s] hearing. (Id.). 19 The Agency also offered Plaintiff an opportunity to view the evidence 20 in his file. (Id.). 21 22 In a February 3, 2010 Notice Of Hearing, like in the May 22, 2009 23 letter, the Agency again notified Plaintiff to submit all evidence as 24 soon as possible so that the ALJ had a complete record. 25 Agency again offered Plaintiff an opportunity to review the evidence in 26 his file. (Id.). 27 28 19 (AR 71). The 1 2. Scheduled Examinations 2 3 On September 19, 2008, the Agency scheduled an Internal Medicine 4 Evaluation. (AR 172). 5 Board 6 evaluation. 7 M.D., a diplomate of the American Board of Psychiatry and Neurology and 8 the American Board of Forensic Examiners, to evaluate Plaintiff s 9 psychiatric condition on January 28, 2009. Eligible The Agency had Dr. Kristof Siciarz, M.D., a Internal (AR 172-76). Medicine Specialist, perform the The Agency also scheduled Reynaldo Abejuela, (AR 186). 10 11 On March 2, 2010, Plaintiff testified at a hearing where the ALJ 12 asked numerous questions. (AR 26-51). In particular, the ALJ asked 13 Plaintiff regarding the specific cause of Plaintiff s disability, (AR 14 29), what treatments Plaintiff sought to treat his back, (AR 30), 15 reasons for electing or declining treatment options, (AR 31-32, 34, 41- 16 42), past record of diagnostic tests, (AR 32), current treatments, (AR 17 33, 36-37), current limitations, (AR 34-35), Plaintiff s daily life, (AR 18 37-40), and any other information Plaintiff believed would be relevant 19 to the ALJ s decision. (AR 44-47). 20 21 IV. 22 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 23 24 To qualify for disability benefits, a claimant must demonstrate a 25 medically determinable physical or mental impairment that prevents her 26 from engaging in substantial gainful activity1 and that is expected to 27 1 Substantial gainful activity means work that involves doing 28 significant and productive physical or mental duties and is done for pay 20 1 result in death or to last for a continuous period of at least twelve 2 months. 3 (citing 42 U.S.C. § 423(d)(1)(A)). 4 claimant incapable of performing the work she previously performed and 5 incapable of performing any other substantial gainful employment that 6 exists in the national economy. 7 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). See Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) The impairment must render the Tackett v. Apfel, 180 F.3d 1094, 1098 8 9 To determine if a claimant is entitled to benefits, an ALJ conducts 10 a five-step inquiry. See 20 C.F.R. § 416.920 ( This section explains 11 the five-step sequential evaluation process we use to decide whether you 12 are disabled, as defined in § 416.905. ). The steps are: 13 14 (1) Is the claimant presently engaged in substantial gainful 15 activity? 16 disabled. 17 (2) Is the If so, the claimant is found not If not, proceed to step two. claimant s impairment 18 claimant is found not disabled. 19 severe? If not, the three. 20 (3) Does the claimant s If so, proceed to step impairment meet or equal the 21 requirements of any impairment listed at 20 C.F.R. Part 22 404, Subpart P, Appendix 1? 23 found disabled. 24 (4) If so, the claimant is If not, proceed to step four. Is the claimant capable of performing h[er] past work? 25 If so, the claimant is found not disabled. 26 proceed to step five. 27 (5) 28 or profit. Is the claimant able to do any other work? See 20 C.F.R. § 416.910. 21 If not, If not, the 1 claimant is found disabled. 2 If so, the claimant is found not disabled. 3 4 Tackett, 180 F.3d at 1098-99; see Bustamante v. Massanari, 262 F.3d 949, 5 953-54 (9th Cir. 2001); see 20 C.F.R. § 416.920(b)-(g)(1). 6 7 The claimant has the burden of proof at steps one through four and 8 the Commissioner has the burden of proof at step five. 9 262 F.3d at 953-54; see Andrews v. Shalala, 53 See Bustamante, F.3d 1035, 1040 10 (9th Cir. 1995) (holding that [t]he claimant bears the burden of 11 proving entitlement to disability benefits. ); see Johnson v. Shalala, 12 60 F.3d 1428, 1432 (9th Cir. 1995) ( In determining the ultimate issue 13 of disability, claimant bears the burden of proving she is disabled. ). 14 If, at step four, the claimant meets her burden of establishing an 15 inability to perform the past work, the Commissioner must show that the 16 claimant can perform some other work that exists in significant 17 numbers in the national economy, taking into account the claimant s 18 RFC, age, education and work experience. See Tackett, 180 F.3d at 1100; 19 20 C.F.R. § 416.920(g)(1). 20 of a vocational expert or by reference to the Medical-Vocational 21 Guidelines appearing in 20 C.F.R. Part 404, Subpart P, Appendix 2 22 (commonly known as the Grids ). 23 1162 (9th Cir. 2001). 24 related) and nonexertional limitations, the Grids are inapplicable and 25 the ALJ must take the testimony of a vocational expert. Moore v. Apfel, 26 216 F.3d 864, 869 (9th Cir. 2000). The Commissioner may do so by the testimony Osenbrock v. Apfel, 240 F.3d 1157, When a claimant has both exertional (strength- 27 28 22 1 V. 2 THE ALJ S DECISION 3 4 Here, the ALJ employed the five-step sequential evaluation process 5 and concluded that Plaintiff was not disabled under the Social Security 6 Act. 7 engaged in substantial gainful activity since the alleged onset of 8 disability on June 1, 2008. 9 that Plaintiff suffered three severe impairments: (1) morbid obesity; (AR 9-18). diabetes At step one, the ALJ found that Plaintiff had not mellitus; and (AR 11). 10 (2) 11 lumbosacral spine. (AR 11). The ALJ concluded that Plaintiff s alleged 12 mood disorder was nonsevere because Plaintiff did not provide evidence 13 indicating that Plaintiff received treatment for his mood disorder or 14 suffered episodes 15 period. (AR 11-12). 16 impairment causes no more than mild limitations and is nonsevere 17 pursuant to 20 CFR 404.1520a(d)(1). of (3) At step two, the ALJ determined degenerative decompensation disc during disease the of relevant the time The ALJ concluded that Plaintiff s mental (AR 12) 18 19 At step three, the ALJ concluded that Plaintiff s impairments does 20 not match or equal one of the listed impairments in 20 CFR Part 404, 21 Subpart P, Appendix 1. 22 Plaintiff could not perform his past relevant work. (AR 12). At step four, the ALJ determined that (AR 16). 23 24 To reach his step four conclusion, the ALJ first determined 25 Plaintiff s 26 determined Plaintiff s residual functional capacity with the following 27 steps: 28 medically determinable impairment that could reasonably be expected to (1) residual functional determining whether capacity. Plaintiff 23 (AR 12-16). suffered an The ALJ underlying 1 produce Plaintiff s symptoms, and (2) how much those symptoms limit 2 Plaintiff s 3 Plaintiff s testimony, any medical evidence in the record, as well as 4 third party statements to reach his conclusion. ability to function. (AR 12). The ALJ considered (AR 13-16). 5 6 The ALJ determined that Plaintiff suffered from medically 7 determinable impairments that could reasonably be expected to cause 8 Plaintiff s alleged symptoms. 9 Plaintiff was not credible regarding the severity of his symptoms. (AR 14). However, the ALJ found that 10 (Id.). The ALJ based his credibility determination on inconsistencies 11 between Plaintiff s testimony and the record. 12 also rejected the third party function report submitted by Plaintiff s 13 mother because, among other things, it largely repeated Plaintiff s 14 function report and discredited allegations. (AR 14). Although the ALJ 15 did not find Plaintiff credible, the ALJ concluded that Plaintiff 16 suffered from the following restrictions that were far more restrictive 17 than the limitations suggested by the consulting examiners: (AR 13, 14-16). The ALJ 18 19 [Plaintiff] could lift 10 pounds frequently and 20 pounds 20 occasionally; he could stand and/or walk 2 hours in an eight- 21 hour workday; he could sit without any restrictions but with 22 normal breaks every 2 hours; the claimant could not climb 23 ladders, ropes, and scaffolds, but he could occasionally 24 climb ramps and stairs; he could occasionally balance, stoop, 25 kneel, crouch, and crawl. 26 27 (AR 12). Based on these limitations, the ALJ determined that Plaintiff 28 could not return to any past relevant work. 24 (AR 16). 1 At step five, the ALJ determined that a person with Plaintiff s 2 age, education, work experience and residual functional capacity could 3 meet the requirements of jobs that exist in significant numbers in the 4 national economy. 5 expert ( VE ) testimony. 6 could work as a small parts assembler, Cashier II and Production 7 Assembler. 8 consistent 9 definitions. 10 (AR 17). (See id.). (AR 17, 48-49). with the (AR 17). The ALJ based his decision on vocational The VE testified that Plaintiff The ALJ found that the VE testimony was Dictionary of Occupational Titles ( DOT ) Therefore, the ALJ concluded that Plaintiff was not disabled under the Social Security Act. (Id.) 11 12 VI. 13 STANDARD OF REVIEW 14 15 Under 42 U.S.C. § 405(g), a district court may review the 16 Commissioner s denial of benefits. The findings of the Secretary as 17 to any fact, if supported by substantial evidence, shall be conclusive. 18 See Andrews, 53 F.3d at 1039. 19 to deny benefits will be disturbed only if it is not supported by 20 substantial evidence or is based on legal error. 21 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (holding that [t]his 22 court may set aside the Commissioner s denial of benefits when the ALJ s 23 findings are based on legal error or are not supported by substantial 24 evidence in the record as a whole. ); see also Smolen v. Chater, 80 F.3d 25 1273, 1279 (9th Cir. 1996). Therefore, [t]he Secretary s decision 26 27 28 25 Id.; see Aukland v. 1 Substantial evidence is more than a scintilla, but less than a 2 preponderance. 3 which a reasonable person might accept as adequate to support a 4 conclusion. 5 a finding, the court must consider the record as a whole, weighing 6 both 7 [Commissioner s] conclusion. Aukland, 257 F.3d at 1035 (quoting Penny 8 v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)); see also Andrews, 53 F.3d 9 at 1039. evidence Reddick, 157 F.3d at 720. Id. It is relevant evidence To determine whether substantial evidence supports that supports and evidence that detracts from the If the evidence can reasonably support either affirming or 10 reversing the Secretary s conclusion, the court may not substitute its 11 judgment for that of the Secretary. 12 Indeed: See Reddick, 157 F.3d at 720-21. 13 14 To determine whether substantial evidence supports the ALJ s 15 decision, [the Court of Appeals] review[s] the administrative 16 record as a whole, weighing both the evidence that supports 17 and that which detracts from the ALJ s conclusion. 18 is 19 conflicts 20 ambiguities. 21 decision where the evidence is susceptible to more than one 22 rational interpretation. responsible in for determining medical testimony, and for resolving resolving [The Court of Appeals] must uphold the ALJ s 23 24 credibility, The ALJ Andrews, 53 F.3d at 1039-40. 25 26 27 28 26 1 VII. 2 DISCUSSION 3 4 Plaintiff contends that the Commissioner s decision should be 5 reversed for the following reasons: (1) the ALJ failed to obtain a fully 6 informed waiver of Plaintiff s right to counsel; (2) the ALJ failed to 7 properly consider all of the relevant medical evidence; (3) the ALJ 8 failed to properly consider Plaintiff s subjective complaints; (4) the 9 ALJ failed to consider third party statements. (Plaintiff s Memorandum 10 at 2-11). Plaintiff appears to also argue that the ALJ did not satisfy 11 his duty to fully develop the record. 12 The Court disagrees with Plaintiff s contentions. 13 stated below, the ALJ s decision is AFFIRMED. (Plaintiff s Memorandum at 3-6). For the reasons 14 15 16 A. Plaintiff Validly Waived His Right To Counsel Because The ALJ Properly Notified Plaintiff Of His Right To Representation 17 18 Plaintiff contends that Plaintiff did not properly waive his right 19 to counsel because the ALJ did not provide Plaintiff with sufficient 20 notice of Plaintiff s rights. 21 particular, Plaintiff contends that the ALJ failed to properly inform 22 him of the multiple ways in which an attorney representative could 23 assist in the full and fair development of [Plaintiff s] case such as 24 obtaining evidence and cross-examining vocational experts. (Plaintiff s 25 Memorandum at 4-5). (Plaintiff s Memorandum at 2-6). The Court disagrees. 26 27 28 27 In 1 When a claimant appears at a hearing without counsel, the ALJ has 2 an obligation to inform the claimant of options other than self- 3 representation. 4 a pro se claimant in a disability case the avenues which [the pro se 5 claimant] could pursue in obtaining counsel, or alternatively, the ALJ 6 must probe for additional facts and explain to the claimant the type 7 of showing which the applicant had to make in order to prove his case 8 successfully. The Ninth Circuit has held that an ALJ must explain to Cruz v. Schweiker, 645 F.2d 812, 814 (9th Cir. 1981). 9 10 However, the Ninth Circuit recently rejected notice standards that 11 exceed the requirements listed in 42 U.S.C. 406(c). 12 Comm r Of The Soc. Sec. Admin., __ F.3d __, 2011 WL 1998337, at *2 (9th 13 Cir. May 24, 2011) (per curiam). 14 that an ALJ meets his duty to notify pro se claimants of their right to 15 counsel if the ALJ satisfies the standards stated in 42 U.S.C. section 16 406(c). 17 to inform a pro se claimant in writing of the options for obtaining 18 attorneys to represent [the claimant] in presenting their case before 19 the Commissioner of Social Security with any notices of adverse 20 decisions, and [s]uch notification shall also advise the claimant of 21 the availability to qualifying claimants of legal services organizations 22 which provide legal services free of charge. 23 that the statutory requirements are all that [a court] can apply, and 24 that no disclosure is required other than the disclosure required by 25 [42 U.S.C.] section 406(cd). 26 Admin, 562 F.3d 503, 508 (2d Cir. 2009)). Id. See Roberts v. In Roberts, the Ninth Circuit held 42 U.S.C. section 406(c) states that an ALJ is obligated The Ninth Circuit stated Id. (citing Lamay v. Comm r of Soc. Sec. 27 28 28 1 Here, the Commissioner clearly satisfied his duty to notify 2 Plaintiff of his right to counsel. 42 U.S.C. section 406(c) requires 3 the Commissioner to provide written notice of the options for obtaining 4 attorneys to represent [the claimant] in presenting their case before 5 the Commissioner of Social Security with any adverse decisions, and 6 [s]uch notification shall also advise the claimant of the availability 7 to qualifying claimants of legal services organizations which provide 8 legal services free of charge. Here, Plaintiff received written notice 9 of his right to counsel that included options for obtaining attorneys 10 and information regarding the availability of free legal services with 11 each notice of adverse decision. (See AR 54-57, 70-82) 12 13 The Agency sent written notices describing his right to counsel in 14 multiple notices. On October 3, 2008, the Agency sent Plaintiff a 15 Notice of Disapproved Claims. (AR 54-57). On page three of the October 16 3, 2008 notice, the notice states that [y]ou can have a friend, lawyer, 17 or someone else help you. 18 lawyer or give you free legal services if you qualify. 19 lawyers who do not charge unless you win your appeal. Your local Social 20 Security office has a list of groups that can help you with your 21 appeal. 22 another Notice of Disapproved Claims after Plaintiff requested review. 23 (AR 58-62). 24 statement regarding rights and information regarding counsel. (AR 61). (AR 56-57). There are groups that can help you find a There are also On February 4, 2009, the Agency sent Plaintiff Page four of that notice contains a nearly identical 25 26 Additionally, the Agency provided Plaintiff with a detailed leaflet 27 titled Your Right To Representation in a May 22, 2009 notice of 28 hearing. (AR 64-68). Furthermore, the Agency provided additional 29 1 notices regarding Plaintiff s right to counsel on February 3, 2010, (AR 2 71), and at the March 2, 2010 hearing. 3 and the ALJ adequately notified Plaintiff regarding his right to counsel 4 under 42 U.S.C. section 406(cd). (AR 25). Therefore, the Agency 5 6 Plaintiff argues that this Court adopt the heightened notice 7 standards from other decisions. (Plaintiff s Memorandum at 3-4). 8 Specifically, Plaintiff cites to Gullett v. Chater, 973 F. Supp. 614 9 (E.D. Tex. 1997), and Vaile v. Chater, 916 F. Supp. 821 (N.D. Ill. 10 1996). (Plaintiff s Memorandum at 3-4). The court in Gullett held that 11 a valid waiver of counsel requires the claimant receive written notice 12 prior to a hearing and oral notice at the beginning of a hearing of the 13 following elements: (1) how an attorney can help; (2) availability of 14 free counsel or a contingency arrangement; and (3) the twenty-five 15 percent of past due benefits limit on attorney s fees. Gullett, 973 F. 16 Supp at 620 (citing Clark v. Schweiker, 652 F.2d 399, 403 (5th Cir. 17 1981)). 18 factors to a claimant. 19 inapplicable because the Ninth Circuit has rejected judicially imposed 20 notice standards that exceed the requirements of 42 U.S.C. section 21 406(c). The court in Vaile required the ALJ to explain the above Vaile, 916 F. Supp at 828. These cases are Roberts, 2011 WL 1998337, at *2. 22 23 B. The ALJ Satisfied His Duty To Fully And Fairly Develop The Record 24 25 Plaintiff argues that the ALJ did not satisfy his duty to fully and 26 fairly 27 Specifically, Plaintiff argues that the ALJ failed to develop the record 28 by not develop the obtaining record. updated (Plaintiff s medical 30 records Memorandum and by not at 4, 5). obtaining 1 information regarding the extent of Plaintiff s limitations as a result 2 of his CTS. (Plaintiff s Memorandum at 5). The Court disagrees. 3 4 The Ninth Circuit has found that where the claimant is not 5 represented, it is incumbent upon the ALJ to scrupulously and 6 conscientiously probe into, inquire of and explore for all the relevant 7 facts. 8 well as unfavorable facts and circumstances are elicited. 9 Sullivan, 975 F.2d 558, 561 (9th Cir. 1992) (per curiam) (citing Cox v. 10 Califano, 587 F.2d 988, 991 (9th Cir. 1978) (citations omitted); and 11 Heckler v. Campbell, 461 U.S. 458 470-73, 103 S. Ct. 1952, 1959-60, 76 12 L. Ed. 2d 66 (1983) (Brennan, J., concurring)). Subsequent Ninth 13 Circuit cases have recognized this heightened duty. See Tonapetyan v. 14 Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (stating that the ALJ s duty 15 to develop the record increases when the claimant is unrepresented or 16 is mentally ill and thus unable to protect her own interests). He must be especially diligent in ensuring that favorable as Higbee v. 17 18 However, only ambiguous evidence, or the ALJ s own finding that the 19 record is inadequate to allow for proper evaluation of the evidence, 20 triggers the ALJ s duty to conduct an appropriate inquiry or gather 21 additional information. 22 Cir. 2005); see also Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 23 2002) (duty not triggered where the ALJ did not make a finding that the 24 medical report was inadequate to make a disability determination); 25 McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011) (stating [a] 26 specific finding of ambiguity or inadequacy of the record is not 27 necessary to trigger [the ALJ s] duty to inquire, where the record 28 establishes ambiguity or inadequacy ). Id.; Webb v. Barnhart, 433 F.3d 683, 687 (9th 31 1 An ALJ may discharge his duty to develop the record by issuing 2 subpoenas for records, submitting questions to a claimant s physicians, 3 continuing the hearing, or keeping the record open after the hearing to 4 supplement the record. Tonapetyan, 242 F.3d at 1150. 5 list is not exhaustive. Id. However, this 6 7 Assuming that the incomplete medical records triggered the ALJ s 8 duty to develop the record, the ALJ discharged his duty by requesting 9 records, scheduling examinations and diligently questioning Plaintiff. 10 On June 25, 2008, the ALJ requested records from St. Rose Dominican 11 Hospital. (AR 144-45). On December 24, 2008, the ALJ requested records 12 from Riverside County Regional Medical Center. (AR 164-65). The Agency 13 scheduled Dr. Siciarz to examine Plaintiff On September 19, 2008. 14 172-76). 15 on January 28, 2009. 16 followed up with Riverside County Regional Medical Center. 17 The Agency satisfied its duty by requesting records and scheduling 18 examinations. (AR The Agency also scheduled Dr. Abejuela to examine Plaintiff (AR 186-92). On January 13, 2009, the Agency (AR 207). 19 20 In addition, the ALJ diligently examined Plaintiff during the March 21 2, 2010 hearing to elicit testimony that would either clarify the 22 evidence already in the record or find additional sources of records. 23 (AR 25-47). 24 received for his back, such as surgery. 25 asked what treatments Plaintiff had sought for other conditions, such 26 as a gastric bypass and a Lap-Band. 27 Plaintiff had any other diagnostic tests, such as x-rays or MRIs. (AR 28 32). The The ALJ asked Plaintiff regarding any treatments he (AR 30, 34). (AR 41-42). The ALJ also The ALJ asked if The ALJ asked Plaintiff regarding his medication. (AR 32). 32 1 ALJ received a copy of the MRI taken by Dr. Sadler. 2 asked about Plaintiff s specific limitations. 3 about Plaintiff s daily activities. (AR 37-40). Finally, the ALJ asked 4 the Plaintiff to explain or describe any other problems that he would 5 like the ALJ to consider. 6 sought information and satisfied its duty to develop the record. (AR 44). (AR 33). (AR 35). The ALJ The ALJ asked Clearly, the ALJ affirmatively 7 8 9 Furthermore, any additional attempts to obtain records would have been futile. At the hearing, Plaintiff testified that his last x-ray 10 was likely taken at Riverside General during an emergency room visit in 11 2008. 12 Riverside General regarding a 2008 emergency room visit that did not 13 include x-rays and had not received any new records after a follow up 14 phone call in January 2009. 15 stated in a disability report that no additional medical tests had been 16 done or scheduled since June 20, 2008, and he also stated that he had 17 not 18 psychiatric treatment. 19 requests for records would not have added any additional information 20 because the ALJ had already obtained substantially all of Plaintiff s 21 records. (AR 32). been However, the ALJ had already obtained records from hospitalized for (AR 166-72, 207). psychiatric (AR 106, 187). Moreover, Plaintiff reasons or received any Therefore, any additional 22 23 Plaintiff argues that the ALJ failed to obtain updated medical 24 records especially in light of Plaintiff s pro se status. 25 Memorandum at 4, 5-6). Arguably, Plaintiff reported additional medical 26 appointments in February, June and November 2009. 27 Plaintiff only reported receiving medication identical or similar to his 28 already reported medication. (AR 141-43). 33 (Plaintiff s (AR 140). However, Plaintiff did not mention 1 any additional diagnostic tests or diagnoses made by these doctors that 2 would add additional information to support Plaintiff s case. (AR 140- 3 43). 4 this Court finds no reason to remand Plaintiff s claim. Therefore, the ALJ satisfied his duty to develop the record, and 5 6 C. The ALJ Did Not Err By Omitting Mention Of Plaintiff s 1998 Record Regarding Carpal Tunnel Syndrome 7 8 9 Plaintiff argues that the ALJ failed to properly consider all of 10 the relevant medical evidence. (Plaintiff s Memorandum at 6). 11 Specifically, Plaintiff argues that the ALJ must account for Dr. 12 Sadler s November 3, 1998 assessment. 13 The Court disagrees. (Plaintiff s Memorandum at 6). 14 15 An ALJ must make consider the combined effect of all impairments 16 whether or not each impairment is severe enough to render a claimant 17 disabled. 18 Cir. 2003). 19 him. Id.; Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) 20 (per curiam). 21 significantly probative evidence. 22 Shalala, 49 F.3d 562, 571 (9th Cir. 1995). Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th However, an ALJ need not discuss all evidence presented to An ALJ need only explain why the ALJ rejected Vincent, 739 F.2d at 1395; Flores v. 23 24 An ALJ may reject medical opinions formed prior to the relevant 25 time period, especially when evidence suggests that the disability did 26 not continue through the relevant time period, because these opinions 27 are not significantly probative. Burkhart v. Bowen, 856 F.2d 1335, 1340 28 n.1 (9th Cir. 1988) (reasoning that the ALJ properly rejected a medical 34 1 opinion formed prior to the relevant time period when the doctor also 2 noted improvement). 3 suffered Carpal Tunnel Syndrome that restricted the capabilities of 4 Plaintiff s arms, approximately ten years before the relevant time 5 period. 6 security 7 Plaintiff s impairment had diminished or possibly resolved. (AR 138- 8 139). 9 showed swelling or deformity and all ranges of motion were within normal 10 limits during a 2008 examination. (AR 174). Therefore, the Court finds 11 that the ALJ appropriately disregarded Dr. Sadler s opinion regarding 12 Plaintiff s CTS because it was not significantly probative. Here, Dr. Sadler opined in 1998 that Plaintiff (AR 212-224). guard and Since that diagnosis, Plaintiff worked as a cashier providing strong evidence that the Additionally, Dr. Siciarz noted that none of Plaintiff s joints 13 14 Even if the ALJ erred by not discussing Dr. Sadler s opinion 15 regarding Plaintiff s Carpal Tunnel Syndrome, the error was harmless. 16 A court will not overturn an ALJ s decision if, despite error, the 17 decision remains legally valid. 18 Admin., 533 F.3d 1155, 1162 (9th Cir. 2008); Tommasetti v. Astrue, 533 19 F.3d 1035, 1042-43 (9th Cir. 2008); Robbins v. Soc. Sec. Admin., 466 20 F.3d 880, 885 (9th Cir. 2006). 21 evidence, the ALJ would have most likely found that Plaintiff, a thirty- 22 seven year old individual with a high school education and no language 23 limitations, could work. 24 inclusion of CTS evidence may have added limitations to Plaintiff s 25 residual functional capacity, but would not render Plaintiff disabled 26 considering 27 involved 28 employment. that the the same ALJ Here, even if the ALJ included the CTS (AR 29, 83, 93, 98, 188). noted physical (AR 13). See Carmickle v. Comm r of Social Sec. and that Plaintiff s mental skills daily needed Therefore, any error was harmless. 35 Indeed, the activities to maintain 1 D. The ALJ Properly Rejected Plaintiff s Credibility 2 3 Plaintiff argues that the ALJ improperly rejected Plaintiff s 4 subjective complaints. (Plaintiff s Memorandum at 7-10). Specifically, 5 Plaintiff argues that the ALJ has failed to specify which allegations 6 of pain and/or other symptoms he found not credible, appl[y] the 7 factors mandated by Social Security Ruling 96-7P, and state clear and 8 convincing reasons for rejecting Plaintiff s testimony. 9 Memorandum at 9). (Plaintiff s The Court disagrees. 10 11 To determine whether a claimant s testimony regarding subjective 12 pain or symptoms is credible, an ALJ must engage in a two-step analysis. 13 First, the ALJ must determine whether the claimant has presented 14 objective medical evidence of an underlying impairment which could 15 reasonably be expected to produce the pain or other symptoms alleged. 16 Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) (citing 17 Bunnell v. Sullivan, 947 f.2d 341, 344 (9th Cir. 1991) (en banc)) 18 (internal quotation marks omitted). 19 show that her impairment could reasonably be expected to cause the 20 severity of the symptoms she has alleged; she need only show that it 21 could reasonably have caused some degree of the symptom. 22 Smolen v. Chater, 80 f.3d 1273, 1282 (9th cir. 1996)). The claimant, however, need not Id. (quoting 23 24 Second if the claimant meets this first test, and there is no 25 evidence of malingering, the ALJ can reject the claimant s testimony 26 about the severity of her symptoms only by offering specific, clear and 27 convincing reasons for doing so. 28 rely on prior inconsistent statements, unexplained or inadequately Smolen, 80 F.3d at 1281. 36 An ALJ may 1 explained failure to seek treatment or to follow a prescribed course of 2 treatment or the claimant s daily activities to make a credibility 3 determination. 4 allow the court to conclude that the ALJ did not arbitrarily discredit 5 claimant s testimony. 6 1224 n.3 (9th Cir. 2010) (quoting Thomas, 278 F.3d at 958). Id. at 1284. The ALJ must make specific findings to Turner v. Comm r of Soc. Sec., 613 F.3d 1217, 7 8 In addition, Social Security Ruling 96-7P requires an ALJ to 9 consider the following factors in addition to the objective medical 10 evidence when 11 individual s daily activities; (2) the location, duration, frequency and 12 intensity of an individual s symptoms; (3) factors that precipitate or 13 aggravate symptoms; (4) the type and effectiveness of an individual s 14 medication; (5) treatment beyond medication that the individual has 15 received; (6) other measures that the individual uses to alleviate 16 symptoms; 17 restrictions or limitations due to symptoms. 18 the 19 credibility. and relevant assessing (7) any an other standards and individual s factors credibility: concerning appropriately the (1) the individual s Here, the ALJ satisfied rejected Plaintiff s 20 21 Plaintiff s argument that the ALJ did not specify which testimony 22 was not credible lacks merit. 23 explains why Plaintiff does not have a severe mental impairment, and 24 then discusses Plaintiff and Plaintiff s mother s functional reports. 25 (AR 13-14). Each functional report discusses Plaintiff s alleged anti- 26 social behavior and physical limitations due to pain. (AR 110-25). The 27 ALJ 28 [Plaintiff] and noted [he] had no physical or mental problems besides also noted, however, a In his decision, the ALJ initially lengthy 37 face-to-face interview with 1 exhibiting problems with standing. (AR 14). The ALJ subsequently found 2 that the claimant s statements concerning the intensity, persistence 3 and limiting effects of these symptoms are not credible to the extent 4 that are inconsistent with the above residual functional capacity 5 assessment. (AR 14). 6 ambiguous when read in isolation, in context, these symptoms clearly 7 refer to Plaintiff s alleged mental impairments and limitations due to 8 pain. 9 that he rejected Plaintiff s testimony regarding his pain and mental 10 Although the phrase these symptoms may be Therefore, the Court finds that the ALJ here clearly specified impairments. 11 12 Plaintiff s argument that the ALJ did not provide clear and 13 convincing reasons to reject Plaintiff s testimony also lacks merit. In 14 his decision, the ALJ observed that Plaintiff could maintain[] his 15 personal care, prepar[e] his own meals, rid[e] in a car, shop[] for 16 personal items, manag[e] his finances, and spend[] time with others. 17 (AR 13). 18 above-described activities of daily living are the same as those 19 necessary for obtaining and maintaining employment. 20 found no medical evidence indicating [Plaintiff] received any mental 21 treatment, (AR 11), and that [Plaintiff s] medical records involving 22 the relevant time period reveal [Plaintiff] was overall stable . . . . 23 (AR 16). 24 conservative 25 impairments are remediable with current conservative care. 26 Furthermore, 27 psychiatric treatment or taking any psychiatric medication, The ALJ stated that in order [for Plaintiff] to perform the (Id.). The ALJ The ALJ found that Plaintiff s records document routine and care the for ALJ his found impairments. that 28 38 Plaintiff [Plaintiff s] was not alleged (AR 16). seeking any 1 demonstrating a failure to seek treatment. 2 (Id.) (internal citation omitted). 3 4 The ALJ also discussed the observations of interviewers and 5 consulting examiners. The ALJ stated that a claims representative 6 conducted a lengthy face-to-face interview with [Plaintiff] . . . The 7 claims representative noted [Plaintiff] was pleasant and cooperative; 8 [Plaintiff] was observed not to be in any apparent distress. (AR 14). 9 The ALJ also noted that both Dr. Siciarz and Dr. Abejuela noted that 10 Plaintiff was overall normal. (AR 15). Finally, the ALJ also noted 11 that Dr. Abejuela found Plaintiff had no or mild mental limitations. 12 (AR 16). 13 testimony but rather found that Plaintiff was not credible because his 14 testimony 15 examining doctors, his daily activities, and because Plaintiff did not 16 pursue more aggressive treatments. Therefore, the ALJ did not arbitrarily discredit Plaintiff s was inconsistent with the observations and findings of 17 18 The ALJ s conclusions are supported by substantial evidence in the 19 record. Plaintiff reported in his adult function report that he could 20 maintain his personal care, prepare his own meals, ride in a car, shop 21 for personal items, manage his finances and spend time with others. (AR 22 119-23). 23 abnormalities. 24 revealed little to no functional impairment. 25 representative observed Plaintiff in a face-to-face interview and noted 26 that Plaintiff displayed no difficulties with any major functional 27 categories. 28 epidural and doctors recommended surgery, (AR 31-32), the medical Plaintiff s physical (AR 173-175). (AR 91). examination revealed very few Plaintiff s psychological evaluation (AR 191). The claims Although Plaintiff testified that he had an 39 1 records simply do not support Plaintiff s testimony. Plaintiff s 2 medical records fail to make any mention of surgery other than Dr. 3 Sadler stating Plaintiff was not a candidate for surgery. 4 The record shows that Plaintiff primarily relies on over-the-counter 5 medication for his pain, (AR 118, 142-43), and has not received 6 psychiatric treatment. (See, e.g., AR 187). Furthermore, Plaintiff has 7 reported inconsistent information to the Agency. For example, Plaintiff 8 testified on March 3, 2010 that he could not drive and had not driven 9 a car in two years yet reported in his adult function report dated (AR 221). 10 January 3, 2009 that he did drive. (AR 37-38, 121 ( Do you drive? 11 Yes ). Therefore, the ALJ s conclusion that Plaintiff was not entirely 12 credible was supported by substantial evidence in the record. 13 14 15 E. The ALJ Properly Considered And Rejected The Third Party Statement From Plaintiff s Mother 16 17 Plaintiff argues that the ALJ failed to properly consider the third 18 party report prepared by Plaintiff s mother. (Plaintiff s Memorandum 19 at 10-11). Specifically, Plaintiff argues that the ALJ cited irrelevant 20 reasons to reject the third party report prepared by Plaintiff s mother 21 and that the fact that Plaintiff s mother is related to Plaintiff should 22 not undermine her statements. (Id.). No remand is required this claim. 23 24 In determining whether a claimant is disabled, an ALJ must consider 25 lay witness testimony concerning a claimant s ability to work. Stout 26 v. Comm r Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. July 25, 27 2006); Smolen, 80 F.3d at 1288; 20 C.F.R. §§ 404.1519(d)(4) & (e), and 28 416(d)(4) & (e). The ALJ may discount the testimony of lay witnesses 40 1 only if she gives reasons that are germane to each witness. Valentine 2 v. Comm r of Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (citing 3 Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993)); see also Lewis 4 v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) ( Lay testimony as to a 5 claimant s symptoms is competent evidence that an ALJ must take into 6 account, unless he or she expressly determines to disregard such 7 testimony and gives reasons germane to each witness for doing so. 8 (citations omitted)). 9 and reasoning are adequately supported by substantial evidence in the 10 If the ALJ s ultimate credibility determination record, no remand is required. Carmickle, 533 F.3d at 1162. 11 12 Plaintiff s mother prepared a third party function report that was 13 extremely similar to Plaintiff s adult function report. (Compare AR 14 118-125 with AR 110-117). 15 identical. Plaintiff described his sleep as sleeping 4-5 hours a night 16 of broken sleep if I sleep at all due to pain. 17 mother states Plaintiff cannot sleep at times due to pain. 18 hours of broken sleep a night. 19 unable to put shoes on without pain. 20 reported that Plaintiff is unable at time[s] to put shoes on without 21 pain. In some instances, the wording was nearly (AR 111). (AR 119). Plaintiff s Sleeps 4-5 Plaintiff states he is (AR 119). Plaintiff s mother (AR 111). 22 23 Many other similarities permeate their reports. Plaintiff and his 24 mother reported that Plaintiff is able to make quick simple meals maybe 25 once a day but is unable to stand for [a] long time. 26 Similarly, they bot report that Plaintiff can participate in chores with 27 assistance from family members (AR 112, 120); that Plaintiff goes 28 outside maybe once a week if that 41 (AR 112, 120). (AR 113, 121); that Plaintiff goes 1 shopping in stores for personal items and that he takes maybe 30-60 2 min. when shopping (AR 113, 121); that Plaintiff can manage his 3 finances, (AR 113, 121), and has become anti-social. 4 Both listed that Plaintiff s disabilities affect his ability to lift, 5 squat, bend, stand, reach, walk, sit, kneel, stair climb, use hands, and 6 get along with others. (AR 115, 123). (AR 115, 123). 7 8 The ALJ provided three reasons to reject Plaintiff s mother s third 9 party function report: (1) it provides very little probative value 10 because it mirrors Plaintiff s function report; (2) Plaintiff s mother 11 cannot make a diagnosis or argue the severity of Plaintiff s symptoms 12 because she is not a medical professional; (3) Plaintiff s mother has 13 a pecuniary motivation to help Plaintiff obtain benefits. (AR 14). 14 15 The ALJ s finding that the testimony of Plaintiff s mother mirrored 16 Plaintiff s testimony 17 testimony. An ALJ may reject lay witness testimony if the witness s 18 testimony is inconsistent with the medical evidence. 19 Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). Here, the ALJ found that 20 the testimony of Plaintiff s mother mirror[ed] Plaintiff s function 21 report. 22 [Plaintiff s] subjective complaints are less than fully credible and 23 the objective medical evidence does not support the alleged severity of 24 symptoms. (AR 16); see supra VII.D. Therefore, the ALJ found that the 25 testimony of Plaintiff s mother was inconsistent with the objective 26 medical evidence because it alleged the same restrictions as Plaintiff s 27 discredited 28 Furthermore, Plaintiff s mother did not provide any additional testimony (AR 14). subjective provided two The ALJ germane reasons subsequently complaints. 42 to Bayliss v. properly Valentine, 574 reject her found F.3d at that 694. 1 beyond repeating Plaintiff s own testimony, and her testimony was not 2 significantly probative and could be disregarded. See Vincent, 739 F.2d 3 at 1395. 4 5 The ALJ also provided a germane reason to reject the testimony of 6 Plaintiff s mother by finding her not competent to argue the severity 7 of the claimant s symptoms in relation to his ability to work. (AR 14). 8 Credible lay witness testimony that is consistent with the medical 9 evidence may be competent evidence to show the severity of Plaintiff s 10 symptoms and how it affects a Plaintiff s ability to work. See Bruce 11 v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009). 12 above, the ALJ necessarily found that the testimony of Plaintiff s 13 mother was not consistent with the objective medical evidence and was 14 therefore properly rejected on this ground. Here, as discussed (AR 14). 15 16 Additionally, an ALJ may reject lay witness testimony if the ALJ 17 finds evidence that the witness exaggerated a claimant s symptoms in 18 order to get access to his disability benefits. . . . 19 F.3d at 694 (original emphasis omitted). 20 Plaintiff s mother 21 Plaintiff s testimony 22 Plaintiff testified that his mother s only sources of income are 23 payments 24 Plaintiff s food stamps. (AR 42-43). As discussed above, the ALJ found 25 that 26 conservative 27 Plaintiff s symptoms. 28 a pecuniary interest to exaggerate, and she likely did exaggerate the from a had no at foster medical attachment the care evidence, treatment hearing fail Here, the ALJ found that to employment. supports program, support the daily the (AR ALJ s disability Plaintiff s to Valentine, 574 14). finding. benefits, activities, alleged severity and and of Altogether, the ALJ found Plaintiff s mother had 43 1 because her testimony was inconsistent with the medical evidence. 2 Therefore, the ALJ provided a germane reason to discredit the testimony 3 of Plaintiff s mother. 4 5 Furthermore, even if the ALJ erred by disregarding the testimony 6 of Plaintiff s mother, any error was harmless. 7 of 8 testimony, its inclusion in the decision would not add any evidence that 9 for the ALJ to consider, and her testimony would not affect the outcome Plaintiff s mother was substantively Because the testimony identical to Plaintiff s 10 of Plaintiff s case. 11 error lies in a failure to properly discuss competent lay testimony 12 favorable to the claimant, a reviewing court cannot consider the error 13 harmless unless it can confidently conclude that no reasonable ALJ, when 14 fully 15 determination. ). Therefore, even if the ALJ committed error, the error 16 was harmless. 17 \\ 18 \\ 19 \\ 20 \\ 21 \\ 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ crediting the See Stout, 454 F.3d at 1056 ( [Where the ALJ s testimony, could 28 44 have reached a different 1 VIII. 2 CONCLUSION 3 4 Consistent with the foregoing, and pursuant to sentence four of 42 5 U.S.C. § 405(g),2 IT IS ORDERED that judgment be entered AFFIRMING the 6 decision of the Commissioner. 7 the Court serve copies of this Order and the Judgment on counsel for 8 both parties. IT IS FURTHER ORDERED that the Clerk of 9 10 DATED: August 8, 2011 11 12 /S/ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2 This sentence provides: The [district] court shall have power 27 to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of 28 Social Security, with or without remanding the cause for a rehearing. 45

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