Richard Alan Benjamin v. Michael J. Astrue, No. 5:2012cv01021 - Document 14 (C.D. Cal. 2012)
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 and the matter is dismissed with prejudice. (twdb)
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 EASTERN DIVISION 8 9 RICHARD ALAN BENJAMIN, Plaintiff, 10 v. 11 12 13 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 14 Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 12-1021-MLG MEMORANDUM OPINION AND ORDER 16 17 Plaintiff Richard Benjamin seeks judicial review of the 18 Commissioner s final decision denying his application for Supplemental 19 Security Income ( SSI ) benefits. For the reasons stated below, the 20 decision of the Commissioner is affirmed and the matter is dismissed 21 with prejudice. 22 23 I. Background 24 Plaintiff was born on June 28, 1960, and was 48 years old at the 25 time he filed his application for benefits. (Administrative Record 26 ( AR ) at 107.) He has a tenth grade education and no relevant work 27 experience. (AR at 16, 111, 115.) Plaintiff filed his SSI application on 28 1 1 May 7, 2009, alleging disability since July 1, 1996, due to back pain.1 2 (AR at 100, 107, 110.) 3 Plaintiff s applications were denied initially on September 10, 4 2009, and upon reconsideration on April 15, 2010. (AR at 48-52, 54-59.) 5 An 6 Administrative Law Judge ( ALJ ) William Mueller, during which Plaintiff 7 testified, as did a vocational expert ( VE ). (AR at 22-43.) administrative hearing was held on June 28, 2011, before 8 On July 27, 2011, ALJ Mueller issued an unfavorable decision. (AR 9 at 7-18.) The ALJ found that the medical evidence established that 10 Plaintiff suffered from the following severe impairments: 11 musculoskeletal disorders of the spine, affective disorder and anxiety. 12 (AR at 12.) The ALJ determined that Plaintiff s impairments did not 13 meet, or were not medically equal to, one of the listed impairments in 14 20 C.F.R., Part 404, Subpart P, Appendix 1. (Id.) The ALJ further found 15 that Plaintiff retained the residual functional capacity ( RFC ) to 16 perform light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b) 17 except the claimant should have a sit stand option and would be limited 18 to simple, routine, repetitive tasks. (AR at 13.) The ALJ concluded, 19 based upon the testimony of the VE, that there were jobs that exist in 20 significant numbers in the national economy that Plaintiff was capable 21 of performing, such as electronic worker, parking lot booth attendant 22 and ticket taker, and was therefore not disabled within the meaning of 23 the Social Security Act. See 20 C.F.R. § 416.920(f). (AR at 17-18.) 24 // 25 26 27 28 1 Plaintiff originally filed applications for both SSI benefits and Disability Insurance benefits. At the administrative hearing, Plaintiff amended his alleged onset date to June 28, 2010, his 50th birthday, and withdrew his application for Disability Insurance benefits. (AR at 10, 26-27.) 2 1 On April 27, 2012, the Appeals Council denied review. (AR at 1-4.) 2 Plaintiff then timely commenced this action for judicial review. On 3 October 26, 2012, the parties filed a Joint Stipulation ( Joint Stip. ) 4 of disputed facts and issues. Plaintiff contends that the ALJ erred in 5 assessing Plaintiff s RFC. (Joint Stip. at 4.) Plaintiff seeks remand 6 for a new administrative hearing. (Joint Stip. at 15.) The Commissioner 7 requests that the ALJ s decision be affirmed. (Joint Stip. at 16.) 8 9 10 II. Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 11 Commissioner s decision to deny benefits. The Commissioner s or ALJ s 12 decision must be upheld unless the ALJ s findings are based on legal 13 error or are not supported by substantial evidence in the record as a 14 whole. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1990); Batson v. 15 Comm r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Parra 16 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means 17 such evidence as a reasonable person might accept as adequate to support 18 a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Widmark 19 v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). It is more than a 20 scintilla, but less than a preponderance. Robbins v. Soc. Sec. Admin., 21 466 F.3d 880, 882 (9th Cir. 2006). To determine whether substantial 22 evidence supports a finding, the reviewing court must review the 23 administrative record as a whole, weighing both the evidence that 24 supports 25 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). If 26 the evidence can support either affirming or reversing the ALJ s 27 conclusion, the reviewing court may not substitute its judgment for 28 that of the ALJ. Robbins, 466 F.3d at 882. and the evidence that detracts 3 from the Commissioner s 1 III. Discussion 2 Plaintiff contends that the ALJ erred in determining that Plaintiff 3 retained an RFC for a limited range of light work with a sit-stand 4 option. (Joint Stip. at 4.) Plaintiff argues that his chronic low back 5 pain prevents him from sustaining full time work at any exertional 6 level. (Id. at 5.) Alternatively, Plaintiff contends that at best, he is 7 limited to sedentary work, which would mandate a disability finding 8 under the Medical-Vocational Guidelines, 20 C.F.R., Part 404, Subpart P, 9 Appendix 2. (Joint Stip. at 8.) 10 A claimant s RFC is what he is capable of doing despite his 11 physical and mental limitations. 20 C.F.R. § 404.1545(a)(1); Cooper v. 12 Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). RFC is an assessment 13 of an individual s ability to do sustained work-related physical and 14 mental activities in a work setting on a regular and continuing basis. 15 SSR 96-8p, 1996 WL 374184, at *1 (S.S.A. July 2, 1996). An RFC 16 assessment is ultimately an administrative finding reserved to the 17 Commissioner. 20 C.F.R. § 404.1527(e)(2). However, an RFC determination 18 is based on all of the relevant evidence, including the diagnoses, 19 treatment, observations, and opinions of medical sources, such as 20 treating and examining physicians. Id. 21 Although Plaintiff cites to medical records that reference 22 Plaintiff s chronic low back pain (Joint Stip. at 4), he has completely 23 failed to show how this back pain prevents him from sustaining full time 24 work at the light exertional level. The ALJ properly referred to the 25 medical evidence in the record in reaching his RFC determination. (AR at 26 13-16.) This evidence did not demonstrate that Plaintiff s low back pain 27 was so severe as to prevent Plaintiff from sustaining light work with a 28 sit stand option. 4 1 Indeed, the record shows that the ALJ gave Plaintiff the benefit of 2 the doubt in determining that Plaintiff was capable only of light work 3 with a sit-stand option. One of the State Agency reviewing physicians, 4 Dr. J. Ross, M.D., concluded that Plaintiff retained an RFC for medium 5 work (AR at 217), while another State Agency physician, A. Lizarraras, 6 concluded that Plaintiff did not have any severe physical impairment. 7 (AR at 167.) The ALJ properly synthesized the medical record and the 8 conclusions of the reviewing physicians in assessing Plaintiff with an 9 RFC for light work with a sit-stand option. The ALJ s RFC assessment was 10 supported 11 Plaintiff is not entitled to relief on this claim. by substantial evidence in the record, and therefore, 12 Plaintiff also makes several other arguments which are interspersed 13 with his claim of RFC error. The Court will address each of these in 14 turn: 15 Plaintiff contends that the ALJ erred in assessing his credibility. 16 (Joint Stip. at 5-7.) To determine whether a claimant s testimony about 17 subjective pain or symptoms is credible, an ALJ must engage in a two- 18 step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) 19 (citing Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). 20 First, the ALJ must determine whether the claimant has presented 21 objective medical evidence of an underlying impairment which could 22 reasonably be expected to produce the alleged pain or other symptoms. 23 Lingenfelter, 504 F.3d at 1036. [O]nce the claimant produces objective 24 medical evidence of an underlying impairment, an adjudicator may not 25 reject a claimant s subjective complaints based solely on a lack of 26 objective medical evidence to fully corroborate the alleged severity of 27 pain. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc). 28 To the extent that an individual s claims of functional limitations and 5 1 restrictions due to alleged pain is reasonably consistent with the 2 objective 3 claimant s allegations will be credited. SSR 96-7p, 1996 WL 374186 at *2 4 (explaining 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4)). medical evidence and other evidence in the case, the 5 Unless there is affirmative evidence showing that the claimant is 6 malingering, the ALJ must provide specific, clear and convincing reasons 7 for discrediting a claimant s complaints. Robbins, 466 F.3d at 883. 8 Here, the ALJ provided several acceptable reasons for discrediting 9 Plaintiff s testimony, each of which is fully supported by the record. 10 First, the ALJ noted that Plaintiff had a poor earnings history with no 11 earnings since 1993 and has never earned more than $5,348 in one year. 12 (AR at 14, citing AR at 106.) At the administrative hearing, Plaintiff 13 admitted that he had not worked for a long time. (AR at 28-29.) An ALJ 14 may properly consider a claimant s poor or nonexistent work history in 15 making a negative credibility determination. See Thomas v. Barnhart, 278 16 F.3d 947, 959 (9th Cir. 2002) (claimant s spotty work history with 17 years of unemployment between jobs negatively affected claimant s 18 credibility). The ALJ also noted that at least part of the reason for 19 Plaintiff s poor work history was that he was periodically incarcerated 20 for drug possession and sales. (AR at 14, 29, 200.) 21 The ALJ also concluded that Plaintiff stopped working for reasons 22 other than disability, noting that Plaintiff told the psychiatric 23 examiner that he quit his job as a mechanic three years earlier and that 24 he had attempted to do roofing and painting jobs under the table but was 25 never able to do this for long because he could not stick with a job. 26 (AR at 14, citing AR at 28-29.) An ALJ may consider the fact that a 27 claimant stopped working for reasons other than disability in assessing 28 credibility. See Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001). 6 1 The ALJ made specific findings articulating clear and convincing 2 reasons for his rejection of Plaintiff s subjective testimony. Smolen, 3 80 F.3d at 1284. Because it is the responsibility of the ALJ to 4 determine credibility and resolve conflicts or ambiguities in the 5 evidence, a reviewing court may not second-guess the ALJ s credibility 6 determination when it is supported by substantial evidence in the 7 record, as here. Magallanes, 881 F.2d at 750; See Fair, 885 F.2d at 604. 8 It was reasonable for the ALJ to rely on the reasons stated above, each 9 of which is fully supported by the record, in rejecting the credibility 10 of Plaintiff s subjective complaints. 11 Plaintiff also claims that the ALJ erred in failing to consider the 12 alleged side effects of his medication. (Joint Stip. at 5-6.) In support 13 of this argument, Plaintiff states he was taking Soma and Indocin2 and 14 testified at the administrative hearing that these medicines made him 15 drowsy. (Id.) 16 The ALJ must consider all factors that might have a significant 17 impact on an individual s ability to work. Erickson v. Shalala, 9 F.3d 18 813, 817 (9th Cir. 1993) (emphasis in original) (quoting Varney v. 19 Secretary of Health & Human Serv., 846 F.2d 581, 585 (9th Cir. 1987)), 20 relief modified, 859 F.2d 1396 (1988)). Such factors may include side 21 effects 22 Erickson, 9 F.3d at 818; Varney, 846 F.3d at 585 ( [S]ide effects can be 23 a highly idiosyncratic phenomenon and a claimant s testimony as to 24 their limiting effects should not be trivialized. ) (citation omitted). of medications as well as subjective evidence of pain. 25 26 2 27 28 Soma is a muscle relaxant used to relieve pain and discomfort caused by muscle injuries. Indocin is an anti-inflammatory drug used to treat pain caused by arthritis, gout, bursitis and tendinitis. <http://www.nlm.nih.gov> 7 1 However, Plaintiff bears the burden of producing medical evidence to 2 show that any claimed side effects from medication are severe enough to 3 interfere with the ability to work. See Osenbrock v. Apfel, 240 F.3d 4 1157, 1164 (9th Cir. 2001) (finding that passing mentions of the side 5 effects 6 insufficient evidence); Bayliss v. Barnhart, 427 F.3d 1211, 1217-18 (9th 7 Cir. 2005) (finding no error in ALJ s lack of discussion regarding 8 drowsiness from medication where the only evidence of side effects came 9 through the claimant s subjective testimony). of ... medication in some of the medical records was 10 Here, a review of Plaintiff s medical records reveals no objective 11 evidence of disabling side effects from medications. The only evidence 12 of side effects comes from Plaintiff s subjective complaints at the 13 hearing, which the ALJ properly rejected. (AR at 14.) Plaintiff points 14 to no objective evidence in the record that the side effects of his 15 medications prevented him from sustaining full-time employment. There 16 was no error. 17 18 19 20 IV. Conclusion For the reasons stated above, the decision of the Social Security Commissioner is affirmed and the matter is dismissed with prejudice. 21 22 DATED: November 9, 2012 23 24 25 ______________________________ Marc L. Goldman United States Magistrate Judge 26 27 28 8
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