Ralph David Rey v. Michael J Astrue, No. 5:2011cv00234 - Document 19 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman.For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED. (twdb)

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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 RALPH DAVID REY, 13 Plaintiff, 14 v. 15 MICHAEL J. ASTRUE, Commissioner of Social Security, 16 17 Defendant. 18 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 11-0234-MLG MEMORANDUM OPINION AND ORDER 19 20 Plaintiff Ralph David Rey seeks judicial review of the 21 Commissioner s denial of his application for Social Security Disability 22 Insurance ( SSDI ) and Supplemental Security Income ( SSI ) benefits 23 under the Social Security Act. For the reasons set forth below, the 24 decision of the Administrative Law Judge ( ALJ ) is affirmed and the 25 action is dismissed with prejudice. 26 // 27 // 28 // 1 I. Factual and Procedural History 2 Plaintiff was born on July 31, 1957. (Administrative Record ( AR ) 3 20.) He earned a GED degree and has relevant work experience as a 4 janitor, laborer, general construction worker, and tree cutter. (AR 20, 5 375.) 6 Plaintiff filed applications for SSDI and SSI benefits on May 25, 7 2007, alleging disability beginning December 1, 2006 due to seizures, 8 coronary artery disease, and hypertension. (AR 125.) The Commissioner 9 denied Plaintiff s application initially and upon reconsideration. A 10 hearing was held before ALJ Jesse J. Pease on January 15, 2009, at which 11 Plaintiff, his then-wife, and a vocational expert ( VE ) testified. (AR 12 23-61.) The ALJ issued an unfavorable decision on March 3, 2009. (AR 9- 13 22.) After the Appeals Council denied review, Plaintiff filed an action 14 for judicial review in this Court, Rey v. Astrue, Case No. EDCV 09-1584- 15 MLG. On March 25, 2010, the administrative decision was vacated and the 16 case was remanded to the Commissioner based upon the ALJ s failure to 17 make proper credibility findings. (AR 396-411.) 18 A second administrative hearing was held before ALJ Pease on April 19 30, 2010. (AR 359-378.) On October 20, 2010, the ALJ again denied 20 Plaintiff s application for benefits. (AR 348-356.) The ALJ found that 21 Plaintiff had not engaged in substantial gainful activity since his 22 alleged onset date of December 1, 2006. (AR 350.) The ALJ further found 23 that 24 alcohol-induced seizure disorder, and alcohol-induced liver disease. 25 (Id.) After determining that Plaintiff s severe impairments did not meet 26 or equal any listed impairment, the ALJ found that Plaintiff had the 27 residual functional capacity ( RFC ) to perform work at less than a 28 full range of light exertion. (AR 350-351.) Specifically, the ALJ found Plaintiff had the following 2 severe impairments: alcoholism, 1 that Plaintiff retained the following RFC: The claimant can lift and 2 carry 20 pounds occasionally and 10 pounds frequently. He can stand and 3 walk for 6 hours out of an 8-hour workday. He cannot climb, but he can 4 occasionally balance, stoop, kneel, crouch, and crawl. He should avoid 5 hazardous conditions such as working at heights or with dangerous 6 machinery. (AR 351.) 7 The ALJ concluded that, given this residual functional capacity, 8 Plaintiff was unable to perform any past relevant work. (AR 355.) The 9 ALJ found, however, that given Plaintiff s age, education, work 10 experience and RFC, there were other jobs that exist in significant 11 numbers in the national economy that he could perform, including small 12 products assembler, inspector/hand packer, and office helper. (AR 356.) 13 The ALJ then concluded that Plaintiff was not disabled within the 14 meaning of the Social Security Act. 15 Plaintiff timely filed this action, and the parties filed a Joint 16 Stipulation ( Joint Stip. ) addressing the disputed issues on September 17 14, 2011. Plaintiff alleges that the ALJ erred by: (1) failing to 18 properly consider all of the relevant medical evidence of record in the 19 case 20 treating physician, Dr. Manuel Montemayor; and (2) failing to properly 21 assess the credibility of Plaintiff and his ex-wife. (Joint Stip. 4.) 22 Plaintiff requests that the Court vacate the ALJ s decision and remand 23 solely for an award of benefits, or, in the alternative, that the matter 24 be 25 requests that the ALJ decision be affirmed. (Joint Stip. 20-21.) 26 // 27 // 28 // and, in remanded particular, for further disregarding proceedings. 3 the opinion (Joint Stip. of Plaintiff s 20.) Defendant 1 II. Standard of Review 2 Under 42 U.S.C. § 405(g), a district court may review the Social 3 Security Commissioner s decision to deny benefits. The Court must uphold 4 the Social Security Administration s disability determination unless it 5 is not supported by substantial evidence or is based on legal error. 6 Ryan v. Comm r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)(citing 7 Stout v. Comm r of Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 8 2006)). Substantial evidence means more than a scintilla, but less than 9 a preponderance; it is evidence that a reasonable person might accept 10 as adequate to support a conclusion. Lingenfelter v. Astrue, 504 F.3d 11 1028, 1035 (9th Cir. 2007)(citing Robbins v. Soc. Sec. Admin., 466 F.3d 12 880, 882 (9th Cir. 2006)). To determine whether substantial evidence 13 supports a finding, the reviewing court must review the administrative 14 record as a whole, weighing both the evidence that supports and the 15 evidence that detracts from the Commissioner s conclusion. Reddick v. 16 Chater, 157 F.3d 715, 720 (9th Cir. 1996). If the evidence can support 17 either affirming or reversing the ALJ s conclusion, the reviewing court 18 may not substitute [its] judgment for that of the ALJ. Robbins, 466 19 F.3d at 882. 20 21 III. Analysis 22 A. 23 24 The ALJ Accorded Appropriate Weight to the Opinion of Plaintiff s Treating Physician Plaintiff claims that the ALJ erred in failing to discuss the 25 August 26 Montemayor, M.D. (Joint Stip. 4.) Plaintiff contends that the medical 27 report prepared by Dr. Montemayor on August 10, 2010 establishes that he 28 has marked limitations in the ability to perform various work-related 10, 2010 opinion of his 4 treating physician, Dr. Manuel 1 functions. More specifically, Dr. Montemayor diagnosed Plaintiff with 2 alcohol-related liver disease with a poor prognosis and opined that he 3 was 4 necessary before the degree and permanence of the incapacity could be 5 determined. (AR 504.) The ALJ did not specifically reference this report 6 in his decision. (AR 348-356.) permanently incapacitated, although a liver biopsy would be 7 An ALJ should generally accord greater probative weight to a 8 treating physician s opinion than to opinions from non-treating sources. 9 See 20 C.F.R. § 404.1527(d)(2). The ALJ must give specific and 10 legitimate reasons for rejecting a treating physician s opinion in favor 11 of a non-treating physician s contradictory opinion. Orn v. Astrue, 495 12 F.3d 625 (9th Cir. 2007); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 13 1996). However, the ALJ need not accept the opinion of any medical 14 source, including a treating medical source, if that opinion is brief, 15 conclusory, and inadequately supported by clinical findings. Thomas v. 16 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); accord Tonapetyen v. 17 Halter, 18 considered by the adjudicator in determining the weight to give a 19 medical opinion include: [l]ength of the treatment relationship and the 20 frequency of examination by the treating physician; and the nature and 21 extent of the treatment relationship between the patient and the 22 treating 23 404.1527(d)(2)(i)-(ii), 416.927(d)(2)(i)-(ii). 242 F.3d 1144, physician. 1149 Orn, (9th 495 Cir. F.3d 2001). at The 631-33; factors 20 to C.F.R. be §§ 24 The ALJ did not err by failing to mention Dr. Montemayor s August 25 2010 report. An ALJ is not required to discuss all evidence presented 26 but need only explain why significant probative evidence has been 27 rejected. See Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 28 1394-95 (9th Cir. 1984). Here, Dr. Montemayor s report cannot be deemed 5 1 to be significant probative evidence. The report was merely a check- 2 the-box form without any supporting clinical or laboratory findings. It 3 is a one-page report, in which Dr. Montemayor checked off preprinted 4 choices and did not provide any elaboration or explanation for his 5 opinions. See Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995) 6 (holding that the ALJ properly rejected a physician s determination 7 where 8 documentation ); Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (ALJ 9 permissibly 10 it was conclusory rejected and check-off unsubstantiated reports that by did relevant not medical contain any explanation of the bases of their conclusions ). 11 Further, Dr. Montemayor s August 2010 report acknowledges that 12 additional medical testing, namely a biopsy of Plaintiff s liver, would 13 be needed before the degree and permanence of any incapacity could be 14 determined. (AR 504.) Thus, it was reasonable for the ALJ not to give 15 controlling weight to a report that was equivocal in its conclusion that 16 Plaintiff was permanently disabled and unable to work. 17 Finally, although the ALJ did not specifically discuss the August 18 2010 report by Dr. Montemayor, he nevertheless discussed other medical 19 reports arising from Plaintiff s visits to Dr. Montemayor that were 20 inconsistent with the report s conclusion that Plaintiff was permanently 21 incapacitated. For example, the ALJ noted that when Plaintiff was seen 22 by Dr. Montemayor in March 2010 for complaints of a rash, he denied 23 having any seizures for the past year and Plaintiff was without any 24 other new significant complaint. (AR 353, citing AR 487.) The ALJ also 25 specifically discussed various other records from Dr. Montemayor and 26 other practitioners at the San Manuel Clinic from November 2008 through 27 September 2009, which were largely normal and unremarkable. (AR 352- 28 353.) 6 1 Accordingly, the ALJ did not err in failing to discuss Dr. 2 Montemayor s August 2010 one-page report. Moreover, even if the ALJ 3 erred in failing to discuss this report, any error was harmless. See 4 Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (harmless 5 error rule applies to review of administrative decisions regarding 6 disability), Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1991). 7 Therefore, Plaintiff is not entitled to relief on this claim of error. 8 B. 9 The ALJ Made Proper Credibility Determinations Regarding the Testimony of Plaintiff and His Wife 10 Plaintiff contends that the ALJ again failed to properly assess the 11 credibility of Plaintiff and his ex-wife, despite this Court s order 12 requiring the ALJ to make proper credibility determinations on remand. 13 (Joint Stip. 12.) 14 To determine whether a claimant s testimony about subjective pain 15 or symptoms is credible, the ALJ must engage in a two-step analysis. 16 Vasquez 17 Lingenfelter, 504 F.3d at 1035-36). First, the ALJ must determine 18 whether the claimant has presented objective medical evidence of an 19 underlying impairment which could reasonably be expected to produce 20 the alleged pain or other symptoms. Lingenfelter, 504 F.3d at 1036 21 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en 22 banc)). [O]nce the claimant produces objective medical evidence of an 23 underlying impairment, an adjudicator may not reject a claimant s 24 subjective complaints based solely on a lack of objective medical 25 evidence to fully corroborate the alleged severity of pain. Bunnell v. 26 Sullivan, 947 F.2d at 345. To the extent that an individual s claims of 27 functional limitations and restrictions are reasonably consistent with 28 the objective medical evidence and other evidence in the case, the v. Astrue, 572 F.3d 586, 7 591 (9th Cir. 2009) (citing 1 claimant s allegations will be credited. SSR 96-7p, 1996 WL 374186 at *2 2 (explaining 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4)).1 3 Unless there is affirmative evidence showing that the claimant is 4 malingering, the ALJ must provide clear and convincing reasons for 5 discrediting a claimant s complaints. Robbins, 466 F.3d at 883. General 6 findings are insufficient; rather, the ALJ must identify what testimony 7 is not credible and what evidence undermines the claimant s complaints. 8 Reddick, 157 F.3d at 722 (quoting Lester v. Chater, 81 F.3d 821, 834 9 (9th Cir. 1995)). The ALJ may consider objective medical evidence and 10 the claimant s treatment history, as well as the claimant s daily 11 activities, work record, and observations of physicians and third 12 parties 13 limitations. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). The 14 ALJ 15 evaluation, such as weighing inconsistent statements regarding symptoms 16 by the claimant. Id. may with personal additionally knowledge employ of ordinary the claimant s techniques of functional credibility 17 In the present case, the ALJ found that Plaintiff s medically 18 determinable impairments could reasonably be expected to cause the 19 alleged symptoms, but that the claimant s statements concerning the 20 intensity, persistence and limiting effects of these symptoms are not 21 credible to the extent they are inconsistent with [the ALJ s] residual 22 functional capacity assessment. (AR 352.) Because Plaintiff met his 23 burden of producing objective medical evidence of underlying impairments 24 reasonably likely to cause his symptoms, the ALJ was required to offer 25 26 27 28 1 The Secretary issues Social Security Rulings to clarify the Secretary s regulations and policy .... Although SSRs are not published in the federal register and do not have the force of law, [the Ninth Circuit] nevertheless give[s] deference to the Secretary's interpretation of its regulations. Bunnell, 947 F.2d at 346 n.3 (internal citations omitted). 8 1 specific, clear and convincing reasons for rejecting Plaintiff s and his 2 wife s testimony regarding Plaintiff s symptoms and their affect on his 3 ability to work. See Bunnell, 947 F.2d at 343; see also Vasquez, 572 4 F.3d at 592 (quoting Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 5 1993))( To support a lack of credibility finding, the ALJ [is] required 6 to point to specific facts in the record which demonstrate that [the 7 claimant] is in less pain than she claims. ) 8 1. The ALJ Properly Discredited Plaintiff s Testimony 9 At the April 30, 2010 hearing, Plaintiff testified that his 10 condition was largely unchanged from the date of the last administrative 11 hearing on January 15, 2009, except that he has gotten weaker. (AR 362.) 12 Plaintiff testified that he had a grand mal seizure the previous July 13 and that he has three petit mal seizures per week. (AR 363.) He 14 testified that he continues to have tremors in his arms and legs. (AR 15 364.) 16 remembering and that he has difficulty sleeping. (AR 364-365.) He 17 reported that he has fecal incontinence once every two weeks and that 18 his cirrhosis medication requires him to take frequent bathroom breaks 19 throughout the day. (AR 367-369.) 20 He The also ALJ testified provided that three he has reasons trouble for concentrating discrediting and Plaintiff s 21 testimony regarding his symptoms and functional limitations, each of 22 which is fully supported by the record. First, the ALJ noted that, 23 although Plaintiff complained of serious symptoms, such as weakness, arm 24 and leg tremors, and fecal incontinence, the medical record demonstrates 25 that 26 physicians. (AR 353.) For example, the treatment notes demonstrate that 27 his arm and leg tremors were only noted on a single occasion in 28 September 2007, and that he has otherwise not reported this symptom to Plaintiff generally did not 9 report these symptoms to his 1 his physicians. (Id., citing AR 340.) Similarly, although Plaintiff 2 complained of fecal incontinence occurring at least once every two 3 weeks, the treatment notes show that Plaintiff never raised this issue 4 with his physicians, and his ex-wife mentioned occasional incontinence 5 only once during an October 2008 office visit. (Id., citing AR 470.) 6 The ALJ also properly noted that Plaintiff s claims regarding the 7 frequency of his grand and petit mal seizures was contradicted by the 8 medical records. (AR 352-353.) The records indicate that Plaintiff 9 reported to his medical providers that he had four seizures in 2007 and 10 one in 2008, which the ALJ noted was of less frequency than Plaintiff 11 testified. (AR 352, citing AR 181, 186, 216, 340, 470.) The ALJ also 12 noted that Plaintiff reported to his physicians in November 2008 and 13 September 2009 that he had not had any recent seizure episodes. (AR 352- 14 353, citing AR 473, 484.) The ALJ also observed that, although Plaintiff 15 testified to having three petit mal seizures per week, he reported in 16 March 2010 to the San Manuel Clinic that he had not had any seizures in 17 a year. (AR 353, citing AR 487-488.) Thus, the ALJ properly determined 18 that Plaintiff was not fully credible given his inconsistent statements 19 regarding his symptoms. Smolen, 80 F.3d at 1284. 20 The ALJ also properly determined that Plaintiff s ability to 21 perform certain daily activities, such as washing dishes, cooking, 22 mopping the floor, watering the lawn, grocery shopping and watching his 23 young grandchildren for extended periods, were at odds with his claims 24 of debilitating pain. (AR 354, citing AR 198.) While it is true that 25 one does not need to be utterly incapacitated in order to be 26 disabled, Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001), the 27 extent of Plaintiff s activity here supports the ALJ s finding that 28 Plaintiff s reports of his impairment were not fully credible. See Bray 10 1 v. Comm r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009); 2 Curry v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1990) (finding that the 3 claimant s ability to take care of her personal needs, prepare easy 4 meals, do light housework and shop for some groceries ... may be seen as 5 inconsistent with the presence of a condition which would preclude all 6 work activity ) (citing Fair, 885 F.2d at 604). 7 The ALJ made specific findings articulating clear and convincing 8 reasons for his rejection of Plaintiff s subjective testimony. Smolen v. 9 Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). It is the responsibility of 10 the ALJ to determine credibility and resolve conflicts or ambiguities in 11 the evidence. Magallanes v. Brown, 881 F.2d 747, 750 (9th Cir. 1989). A 12 reviewing court may not second-guess the ALJ s credibility determination 13 when it is supported by substantial evidence in the record, as here. See 14 Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). It was reasonable for 15 the ALJ to rely on the reasons stated above, each of which is fully 16 supported by the record, in rejecting the credibility of Plaintiff s 17 subjective 18 discredited Plaintiff s subjective testimony regarding the severity of 19 his symptoms as not being wholly credible. 20 2. complaints. In sum, the ALJ reasonably and properly The ALJ Properly Discredited Plaintiff s Wife s Testimony 21 Plaintiff contends that the ALJ also erred by not crediting his ex- 22 wife s testimony regarding the severity of Plaintiff s symptoms. (Joint 23 Stip. 14-15.) Plaintiff s then-wife, Theresa M. Rey, testified at the 24 first administrative hearing that Plaintiff had seven grand mal seizures 25 in 2008, each requiring a week of recovery time (AR 48-49); that 26 Plaintiff experienced petit seizures approximately three times a week, 27 which caused his arms and legs to shake and left him confused and sore 28 the next day (AR 43-44); that Plaintiff experienced body tremors three 11 1 or four times a week, lasting for several hours, that sapped Plaintiff 2 of his strength (AR 45-46); that she and her brother often had to help 3 Plaintiff to the restroom because he was confused and shaky (AR 47); 4 that 5 medication (AR 47); and that she does everything for Plaintiff (AR 46- 6 47). 7 Plaintiff often has bathroom accidents as a result of his Lay testimony as to a claimant s symptoms is competent evidence 8 that 9 determines to disregard such testimony and gives reasons germane to each 10 witness for doing so. Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 11 2001); see also Dodrill, 12 F.3d at 918-19. The ALJ provided two reasons 12 for finding Ms. Rey s testimony not wholly credible, both of which the 13 Court finds to be clear and convincing. an ALJ must take into account, unless he or she expressly 14 First, the ALJ found that Plaintiff s ex-wife s testimony was not 15 fully credible because it was contradicted by other evidence in the 16 record. 17 Plaintiff had at least seven grand mal seizures in 2008 but the medical 18 records show that Plaintiff reported having only one seizure in 2008. 19 (AR 354, 470.) Similarly, the ALJ noted that Ms. Rey s testimony that 20 Plaintiff had three petit mal seizures per week was contradicted by 21 Plaintiff s own report in March 2010 to the San Manuel Clinic that he 22 had not had any seizures in a year. (AR 354, 487-488.) As discussed 23 above with respect to Plaintiff s testimony, inconsistencies between Ms. 24 Rey s testimony and other statements in the record is a legitimate 25 reason for the ALJ to discredit her testimony. For instance, the ALJ noted that Ms. Rey testified that 26 The ALJ also declined to give great weight to Ms. Rey s testimony 27 because it conflicted with the medical evidence. The ALJ noted that, 28 although Ms. Rey testified that Plaintiff had chronic arm tremors, 12 1 needed assistance with basic hygiene and was confused and in pain for a 2 week after a seizure, there is no evidence that any of these symptoms 3 were reported to Plaintiff s health care providers. The ALJ may discount 4 lay testimony if it conflicts with medical evidence. Lewis, 236 F.3d at 5 511. 6 The ALJ s credibility determination regarding Plaintiff s ex-wife s 7 testimony was supported by substantial evidence in the 8 record Accordingly, Plaintiff is not entitled to relief on this claim. 9 10 11 12 IV. Conclusion For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED. 13 14 DATED: September 29, 2011 15 16 17 ______________________________ Marc L. Goldman United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 13

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