Jabari Clever Black v. Michael J. Astrue, No. 5:2011cv00494 - Document 18 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton, The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. (SEE ORDER FOR FURTHER DETAILS) (lmh)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 JABARI CLEVER BLACK, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 11-00494-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for 20 disability benefits. 21 consented that the case may be handled by the Magistrate Judge. 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the record before 24 the Commissioner. 25 ( JS ), and the Commissioner has filed the certified Administrative 26 Record ( AR ). Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the Joint Stipulation 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge ( ALJ ) erred as a 1 matter of law by failing to properly assess Plaintiff s 2 credibility (JS at 3); 3 2. 4 Whether the ALJ erred as a matter of law by failing to properly assess the witness testimony (JS at 9); and 5 3. 6 Whether the ALJ erred as a matter of law by failing to pose a complete hypothetical question (JS at 14). 7 8 9 10 This Memorandum Opinion will constitute the Court s findings of fact and conclusions of law. After reviewing the matter, the Court concludes that the decision of the Commissioner must be affirmed. 11 12 I 13 THE ALJ CORRECTLY ASSESSED PLAINTIFF S CREDIBILITY 14 In his Decision (AR 15-23), the ALJ made a negative credibility 15 assessment of Plaintiff s testimony. (AR 19-21.) After laying out the 16 applicable factors identified in Social Security Ruling ( SSR ) 96-7p, 17 the 18 particularly applicable: ALJ determined that the following credibility factors 19 ... whether the person has a pecuniary interest in the 20 outcome of the hearing or may otherwise be motivated by 21 secondary gain; whether a person s evidence is inconsistent 22 with or contradicted by prior statements or other evidence 23 in the record; and the appearance and demeanor of a person 24 were as a witness at the hearing. 25 (AR 21.) 26 27 28 In addition to the foregoing factors, the ALJ extensively discussed the findings of various medical professionals who concluded 2 1 that Plaintiff was a malingerer. ( Indeed, numerous examiners of 2 record 3 credibility, efforts at feigning a disorder, and objective evidence 4 showing malingering and/or exaggeration. [AR 21.]) 5 recounted these instances in his decision. (Id.) have noted and commented upon the claimant s lack of The ALJ then 6 In addition to the foregoing, the ALJ cited evidence of instances 7 in which Plaintiff has given inconsistent evidence about using 8 alcohol and/or illegal drugs. (Id.) 9 10 The Court is called upon to determine whether the ALJ properly discharged his function in assessing Plaintiff s credibility. 11 The credibility assessment process in Social Security matters is 12 well known, and has been identified in numerous cases, perhaps the 13 principal one of which is Bunnell v. Sullivan, 947 F.2d 341, 344 (9th 14 Cir. 1991)(en banc). 15 which the ALJ must first determine whether a claimant has presented 16 objective medical evidence of an underlying impairment which could 17 reasonably be expected to produce pain or other alleged symptoms. 18 the first criterion is met, and there is no evidence of malingering, 19 an ALJ can reject a claimant s testimony only by offering specific, 20 clear and convincing reasons for doing so. (See also Lingenfelter v. 21 Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). This case established a two-step standard, by If 22 While Plaintiff argues to the contrary, it is quite apparent that 23 the evidence in the record, cited by the ALJ, was more than ample to 24 support his credibility assessment. 25 medical professionals have reached this conclusion. (See, e.g., Dr. 26 Fischer [AR 207-219]; Dr. S. Janzen [AR 278]; Dr. Marks [AR 281].) 27 28 As to malingering, numerous With regard to the ALJ s notation of Plaintiff s own inconsistent statements, this is also borne out by the record. 3 When examined by 1 Dr. Reznick on March 6, 2008 (AR 245-51), it was concluded that 2 Plaintiff failed a test of Memory Malingering and appears to have 3 deliberately responded incorrectly ... which in turn indicated an 4 extremely high probability of malingering. (AR 250.) Plaintiff s 5 intelligence desire 6 underperform, and medical records from Kaiser led the examining 7 physician 8 hallucinations as supporting a conclusion of malingering. (AR 320, 9 332.) test to results describe indicated Plaintiff s a conscious vague claims of to auditory 10 With regard to Plaintiff s own statements, it is also clear in 11 the record that Plaintiff has made statements that he wanted SSI for 12 pecuniary reasons only ( easy money ). (AR 286.) 13 really didn t need to have mental health treatment and that he never 14 took his meds anyway. (AR 286.) The ALJ carefully cited a consistent 15 and lengthy history on Plaintiff s part of exaggerated allegations. 16 (AR 19-21.) 17 2001). 18 As the Plaintiff stated he See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. Commissioner notes, also contradicting Plaintiff s 19 exaggerations of his subjective state were medical records indicating 20 that when he took his medications, his condition was effectively 21 controlled by the treatment. (AR 20, 301.) 22 credibility assessment factor. 23 1001, 1006 (9th Cir. 2006). This again is a valid See Warre v. Commissioner, 439 F.3d 24 Plaintiff s report that he had last drunk alcohol five or six 25 years previously (AR 43) is belied by probation records which indicate 26 that he occasionally used alcohol in 2007. (AR 266.) 27 28 All in all, the ALJ s assessment is well supported, and there is no basis in the record to reject it. 4 1 II 2 THE ALJ PROPERLY THE CREDIBILITY OF PLAINTIFF S FATHER 3 4 5 6 In his second issue, Plaintiff argues that the ALJ failed to properly assess the testimony of his father, Booker Black. In the decision, the following credibility assessment is provided: 7 I have also assessed the credibility of the evidence 8 given by the claimant s father. As noted above, with regard 9 to such evidence, I determined that other evidence is 10 entitled 11 credibility 12 assessing the statements of the claimant s father: whether 13 and to what extent the person may have a pecuniary interest 14 in the outcome of the hearing; whether and to what extent 15 the evidence may be colored by friendship or kinship; and 16 whether 17 inconsistent with or contradicted by prior statements or 18 other evidence in the record. 19 credibility 20 evidence is not fully credible. 21 to and greater weight. factors to were what factors Further, particularly extent just a the following applicable person s evidence in is After having considered the mentioned, I find that such (AR 22.) 22 23 It is the ALJ s responsibility to consider and assess testimony 24 of friends and family members. Smolen v. Chater, 80 F.3d 1273, 1288 25 (9th Cir. 1996). 26 testimony was taken from Booker A. Black, Jr., Plaintiff s father. (AR 27 60-68.) 28 sufficient reasons to disregard that testimony, citing Smolen, supra, At the hearing held on August 3, 2009 (AR 27-75), While Plaintiff asserts that the ALJ did not give legally 5 1 and 20 C.F.R. § 404.1513(e)(2), the ALJ s Decision does not provide 2 support for that claim. 3 Plaintiff as seeming more depressed, suicidal and difficult to deal 4 with (AR 61), and also opined that Plaintiff s treatments have not 5 seemed to help him (AR 67), the records do not support this assertion. 6 (See, discussion as to Issue I, supra.) 7 of Booker Black s credibility must be considered in relation to the 8 chronological history of malingering and exaggerations, and feigned 9 symptoms, which characterize Plaintiff s contact with many medical 10 professionals. Simply put, if Plaintiff often malingers, exaggerates, 11 and feigns symptoms, then observations of these types of conditions 12 by a lay witness such as his father would not be entitled to much 13 credibility. 14 F.3d 685, 694 (9th Cir. 2009). Thus, while Plaintiff s father assessed Indeed, the ALJ s assessment See Valentine v. Commissioner Social Sec. Admin., 574 15 For the foregoing reasons, the Court rejects Plaintiff s second 16 issue, finding that the ALJ gave relevant, specific, and supportable 17 reasons in the record to reject the testimony of Booker Black. 18 19 III 20 THE ALJ POSED A COMPLETE HYPOTHETICAL QUESTION 21 At the hearing before the ALJ, testimony was taken from a 22 vocational expert ( VE ). (AR 68-75.) 23 including additional information elicited from Plaintiff, and then 24 posed 25 hypothetical, the individual would have no exertional limitations with 26 minor 27 repetitive tasks. (AR 71.) 28 identified available work. (Id.) a hypothetical exceptions, and question would to be the The ALJ took testimony, VE. capable (AR of 70-71.) performing In the simple, Based on the hypothetical, the VE 6 1 2 Plaintiff s complaint is that the ALJ never defined what he meant by simple in the hypothetical. (JS at 14, et seq.) 3 Plaintiff also argues that the ALJ failed to provide 4 definition of repetitive in the hypothetical. (JS at 15.) 5 any following reasons, neither argument has merit. 6 For the The applicable regulations do in fact define the meaning of the 7 applicable terms. 8 work as work which needs little or no judgment to do simple duties 9 that can be Thus, 20 C.F.R. § 416.968(a) defines unskilled learned on the job in a short period of time. 10 Plaintiff s complaint is more with the asserted ambiguity in the 11 regulation than with the application of that regulation by the ALJ. 12 Plaintiff claims there is no definition of simple contained in the 13 regulations. 14 which can be learned on the job in a short period of time. 15 Court perceives no ambiguity or incompleteness in this definition. 16 Consequently, when an individual is limited to simple, repetitive 17 tasks, he or she is precluded from performing both semi-skilled and 18 skilled occupations. 19 But in fact there is. As noted, simple duties are ones The See 20 C.F.R. § 416.668(b)-(c). Other regulations are consistent with this basic definition. 20 20 C.F.R. § 416.969a(c)(1)(iii) provides that a non-exertional mental 21 impairment may cause an individual to have difficulty understanding or 22 remembering detailed instructions, and in 20 C.F.R. Part 404, Subpart 23 P, Appendix 1, Listing 12.00(c)(3) (an individual may be able to 24 sustain attention and persist at simple tasks but may still have 25 difficulty with complicated tasks ). 26 Plaintiff s argument that the terms simple, repetitive, and 27 simple repetitive tasks are inadequately defined in the regulations 28 does not withstand scrutiny, and as a result, his argument fails. 7 1 2 3 The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 4 5 6 DATED: January 23, 2012 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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