Christopher Ontiveros v. Michael J Astrue, No. 8:2008cv01390 - Document 18 (C.D. Cal. 2009)

Court Description: MEMORANDUM OPINION; ORDER by Magistrate Judge Oswald Parada. IT THEREFORE IS ORDERED that Judgment be entered affirming the decision of the Commissioner, and dismissing this action with prejudice. (See document for specifics) (mrgo)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 20 21 22 CHRISTOPHER ONTIVEROS, ) Case No. SACV 08-1390-OP ) Plaintiff, ) v. ) MEMORANDUM OPINION; ORDER ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ) The Court1 now rules as follows with respect to the disputed issues listed in the Joint Stipulation ( JS ).2 /// /// /// /// 23 1 24 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the United States Magistrate Judge in the current action. (See Dkt. Nos. 8, 9.) 25 2 As stated in the Court s Case Management Order, the decision in this case is being made on the basis of the pleadings, the Administrative Record, and the 27 Joint Stipulation filed by the parties. In accordance with Rule 12(c) of the Federal 28 Rules of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g). 26 1 1 I. 2 DISPUTED ISSUES 3 As reflected in the Joint Stipulation, the disputed issues which Plaintiff 4 raises as the grounds for reversal and/or remand are as follows: 5 1. 6 Whether the Administrative Law Judge ( ALJ ) properly evaluated the lay witness testimony; 7 2. Whether the ALJ considered the State Agency psychiatrist s opinion; 8 3. Whether the ALJ posed a complete hypothetical to the vocational 9 10 expert ( VE ); and 4. 11 Whether the ALJ properly considered the type, dosage, effectiveness, and side effects of Plaintiff s medications. 12 (JS at 3.) 13 II. 14 STANDARD OF REVIEW 15 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s decision 16 to determine whether the Commissioner s findings are supported by substantial 17 evidence and whether the proper legal standards were applied. DeLorme v. 18 Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means more 19 than a mere scintilla but less than a preponderance. Richardson v. Perales, 402 20 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Desrosiers v. Sec y of 21 Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial 22 evidence is such relevant evidence as a reasonable mind might accept as adequate 23 to support a conclusion. Richardson, 402 U.S. at 401 (citation omitted). The 24 Court must review the record as a whole and consider adverse as well as 25 supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). 26 Where evidence is susceptible of more than one rational interpretation, the 27 Commissioner s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 28 (9th Cir. 1984). 2 1 III. 2 DISCUSSION 3 A. The ALJ s Failure to Discuss Lay Witness Testimony Was Harmless 4 Error. 5 Plaintiff contends the ALJ failed to provide germane reasons for rejecting 6 the testimony of the lay witnesses, Kim Ellerbee and Jeff Fagin. (JS at 3-5, 7.) 7 Title 20 C.F.R. §§ 404.1513(d) and 416.913(d) provides that, in addition to 8 medical evidence, the Commissioner may also use evidence from other sources to 9 show the severity of [an individual s] impairment(s) and how it affects [her] 10 ability to work. Further, the Ninth Circuit has repeatedly held that [d]escriptions 11 by friends and family members in a position to observe a claimant s symptoms and 12 daily activities have routinely been treated as competent evidence. Sprague v. 13 Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). This applies equally to the sworn 14 hearing testimony of witnesses (see Nguyen v. Chater, 100 F.3d 1462, 1467 (9th 15 Cir. 1996)), as well as to unsworn statements and letters of friends and relatives. 16 See Schneider v. Comm r, Soc. Sec. Admin., 223 F.3d 968, 974 (9th Cir. 2000). If 17 the ALJ chooses to reject such evidence from other sources, he may not do so 18 without comment. Nguyen, 100 F.3d at 1467. When rejecting lay witness 19 testimony, the ALJ must provide reasons that are germane to each witness. 20 Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). 21 The ALJ is not relieved of his obligation to comment upon lay witness 22 testimony simply because he has properly discredited the plaintiff s testimony. To 23 find otherwise would be based upon the mistaken impression that lay witnesses 24 can never make independent observations of the claimant s pain and other 25 symptoms. Id. The ALJ s failure to address the witness testimony generally is 26 not harmless. Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1991). In failing to 27 address a lay witness statement, the error is harmless only if a reviewing court . . 28 . can confidently conclude that no reasonable ALJ, when fully crediting the 3 1 testimony, could have reached a different disability determination. Stout v. 2 Comm r, Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006); see also Robbins 3 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006). 4 1. 5 Plaintiff claims that the ALJ failed to provide germane reasons for rejecting Testimony of Jeff Fagin. 6 the statements of Jeff Fagin. (JS at 3-5.) Specifically, on November 21, 2007, Mr. 7 Fagin wrote a letter to Plaintiff, issuing a 99 year Trespass Warning regarding 8 the premises of Knott s Berry Farm for hostile and abrasive behavior in violation 9 of the employee handbook. (Administrative Record ( AR ) at 226.) Plaintiff 10 allegedly punched a wall after becoming angry because [he] could not see a 11 female employee [he] wanted to talk with. (Id.) 12 Here, while the ALJ discredited the other lay witness testimony and 13 Plaintiff s credibility, the ALJ failed to address the lay witness testimony of Mr. 14 Fagin. (AR at 17.) However, the ALJ s failure to discredit the testimony of Mr. 15 Fagin is harmless error because the ALJ would not have reached a different 16 disability determination having considered it. Stout, 454 F.3d at 1056; see also 17 Robbins, 466 F.3d at 885. This is because Mr. Fagin s statements were merely 18 corroborative of other evidence in the record, namely Plaintiff s previous assault 19 and subsequent incarceration. (AR at 17.) Additionally, at the hearing, the ALJ 20 was skeptical about the probative value, if any, of Mr. Fagin s letter. (Id. at 7621 77.) Moreover, even if the ALJ had considered Mr. Fagin s statements, the 22 statements would have been entitled to little probative value, as there was no 23 evidence that Mr. Fagin had any personal or ongoing contact with Plaintiff. 24 Dodril, 12 F.3d at 919; see also SSR 06-03p (for non-medical sources, such as 25 parents, it is appropriate to consider such factors as the nature and extent of the 26 relationship ). 27 Under these circumstances, the Court can confidently conclude that no 28 reasonable ALJ considering this case would have reached a different conclusion 4 1 had he expressly addressed Mr. Fagin s statements. Accordingly, the ALJ s 2 failure to address that testimony was harmless and does not warrant reversal. 3 2. 4 Plaintiff also argues that the ALJ failed to consider the testimony of Kim Testimony of Kim Ellerbee. 5 Ellerbee. (JS at 7.) The Court disagrees. 6 Here, the ALJ explicitly summarized and partially discredited Ms. Ellerbee s 7 testimony. The ALJ provided: 8 The record also contains a third party statement of record submitted by 9 Kim Ellerbee, who identified herself as a friend of the claimant s for the 10 past 14 years who saw him several times a week for short periods (Ex 11 1E). Her statements note that the claimant seems confused and lethargic. 12 She notes that the claimant does not do much which corroborates the 13 complaint of his mother that he sits around the house or stays in his 14 room. She further indicated that the claimant gets nervous around people 15 but on the other hand, that he regularly attended church and visited 16 family households. A limitation included in the claimant s residual 17 functional capacity for a non-public work environment would subsume 18 any implications in social functioning. Such as it is, her statement is 19 merely an observation and not a diagnosis. 20 (AR at 17.) The ALJ partially discredited Ms. Ellerbee s testimony, as it was 21 cumulative of other lay witness testimony which was properly rejected.3 (Id.) As 22 to Ms. Ellerbee s other statements, the ALJ specifically considered the testimony 23 and even included a non-public limitation as to Plaintiff s residual functional 24 capacity ( RFC ). (AR at 15.) Thus, Plaintiff provides no basis for his argument 25 that the ALJ failed to consider the testimony of Ms. Ellerbee. 26 Based on the foregoing, the Court finds that the ALJ provided sufficient 27 28 3 Notably, Plaintiff does not dispute the ALJ s rejection of the lay witness testimony of his mother, Yolanda Ontiveros. 5 1 reasons germane to the witness for giving her statement less weight. Thus, there 2 was no error. 3 B. The ALJ s Failure to Explicitly Consider the Opinion of the State 4 Agency Psychiatrist Was Harmless Error. 5 Plaintiff contends that the ALJ failed to consider a mental RFC assessment 6 by a State Agency psychiatrist. (JS at 7-9.) Plaintiff argues that the ALJ 7 incorporated his previous decision, but he still failed to accept or reject the State 8 Agency psychiatrist s findings. (Id.) 9 On May 5, 2006, Dr. Paul Balson reviewed the medical record and 10 completed a mental RFC assessment. (AR at 264-80.) Plaintiff misstates the 11 Summary Conclusions as equivalent to Plaintiff s mental RFC. (JS at 7-9.) 12 Rather, Dr. Balson opined that there is no objective evidence of a severe mental 13 functional impairment, and Plaintiff retains the mental RFC to attain or sustain 14 simple, repetitive tasks. (AR at 280.) On reconsideration, Dr. Melvin Morgan 15 reviewed the evidence and affirmed Dr. Balson s opinion that Plaintiff could 16 perform simple, repetitive tasks. (Id. at 282.) 17 In his decision, the ALJ incorporated by reference the discussion of evidence 18 set forth in the prior decision. (Id. at 16, 94-95.) The ALJ in the prior decision 19 relied, inter alia, on the testimony of the medical expert, Dr. Stephen Wells, to 20 determine that Plaintiff was limited to simple, repetitive tasks in a non-public work 21 environment. (Id. at 95.) In the current decision, the ALJ also determined 22 Plaintiff s RFC as medium exertional work limited to simple, repetitive tasks in a 23 non-public work setting. (Id. at 15.) Thus, Dr. Balson s opinion is consistent with 24 Dr. Wells opinion and the ALJ s RFC determination, and any error by the ALJ to 25 specifically address Dr. Balson s cumulative opinion is harmless. See Curry, 925 26 F.2d at 1131 (harmless error rule applies to review of administrative decisions 27 28 6 1 regarding disability).4 2 C. The ALJ Posed a Complete Hypothetical to the VE. 3 Plaintiff claims that the ALJ erred by posing an incomplete hypothetical to 4 the VE when the ALJ failed to include Dr. Balson s moderate mental limitations 5 and hostile or abrasive behavior alleged in Plaintiff s second claim. (JS at 7-9, 116 12.) The Court disagrees. 7 In order for the testimony of a VE to be considered reliable, the 8 hypothetical posed must include all of the claimant s functional limitations, both 9 physical and mental supported by the record. Thomas v. Barnhart, 278 F.3d 947, 10 956 (9th Cir. 2002) (quoting Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 11 1995)). Hypothetical questions posed to a VE need not include all alleged 12 limitations, but rather only those limitations which the ALJ finds to exist. See, 13 e.g., Magallanes v. Bowen, 881 F.2d 747, 756-57 (9th Cir. 1989); Copeland v. 14 Bowen, 861 F.2d 536, 540 (9th Cir. 1988); Martinez v. Heckler, 807 F.2d 771, 15 773-74 (9th Cir. 1986). As a result, an ALJ must propose a hypothetical that is 16 based on medical assumptions, supported by substantial evidence in the record, 17 that reflects the claimant s limitations. Osenbrock v. Apfel, 240 F.3d 1157, 18 1163-64 (9th Cir. 2001) (citing Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 19 1995)); see also Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995) (although 20 the hypothetical may be based on evidence which is disputed, the assumptions in 21 the hypothetical must be supported by the record). 22 Here, as stated above, the ALJ properly discredited Plaintiff s claim 23 regarding the alleged moderate mental limitations, as it was unsupported by the 24 medical evidence. See supra, Discussion Part III.B. Additionally, the ALJ 25 included a limitation for work in a non-public environment, which would account 26 27 4 Notably, Plaintiff does not dispute the ALJ s RFC determination, nor does 28 Plaintiff argue that the RFC finding is not based upon substantial evidence. Thus, the Court declines to address the ALJ s RFC finding. 7 1 for Plaintiff s alleged hostile and abrasive behavior.5 Accordingly, there was no 2 error in the ALJ s hypothetical questions to the VE which did not include a 3 requirement for moderate mental limitations. Rollins v. Massanari, 261 F.3d 853, 4 857 (9th Cir. 2001) ( Because the ALJ included all of the limitations that he found 5 to exist, and because his findings were supported by substantial evidence, the ALJ 6 did not err in omitting the other limitations that Rollins had claimed, but had failed 7 to prove. ). 8 D. The ALJ Did Not Err in Failing to Consider Plaintiff s Medications and 9 Their Side Effects. 10 Plaintiff contends that the ALJ failed to consider the unspecified side-effects 11 of Plaintiff s prescribed medications. (JS at 13-14.) The Court disagrees. 12 Under Ninth Circuit law, the ALJ must consider all factors that might have 13 a significant impact on an individual s ability to work. Erickson v. Shalala, 9 14 F.3d 813, 817 (9th Cir. 1993) (quoting Varney v. Sec y of Health & Human Servs., 15 846 F.2d 581, 585 (9th Cir.), relief modified, 859 F.2d 1396 (1988)). Such factors 16 may include side effects of medications as well as subjective evidence of pain. 17 Erickson, 9 F.3d at 818. When the ALJ disregards the claimant s testimony as to 18 subjective limitations of side effects, he or she must support that decision with 19 specific findings similar to those required for excess pain testimony, as long as the 20 side effects are in fact associated with the claimant s medications. See Varney, 21 846 F.2d at 545; see also Muhammed v. Apfel, No. C98-02952-CRB, 1999 WL 22 260974, at *6 (N.D. Cal. 1999). 23 However, medication side-effects must be medically documented in order to 24 25 5 The hostile and abrasive behavior Plaintiff refers to stems from the lay witness testimony of Mr. Fagin. (JS at 3-5.) As the Court stated above, Mr. 27 Fagin s statements would have been entitled to little probative value, as there was 28 no evidence that Mr. Fagin had any personal or ongoing contact with Plaintiff. See supra, Discussion Part III.A.1. 26 8 1 be considered. See Miller v. Heckler, 770 F.2d 845, 849 (9th Cir. 1985). Despite 2 Plaintiff s contentions, the objective medical record does not support the existence 3 of medication side-effects. While Plaintiff indicated that he suffers from sleep 4 from Paroxetine and Risperdal (AR at 182), there is no evidence that he reported 5 any side effects from his medications to his treating physicians or that his treating 6 physicians reported any functional limitations due to his alleged side-effects (id. at 7 227-513). Further, the record is devoid of any instances where Plaintiff 8 complained of medication side-effects to his consultative physicians. (Id.) 9 Moreover, Plaintiff fails to cite to any medical evidence demonstrating that the 10 alleged symptoms caused him any functional limitations. See Osenbrock, 240 F.3d 11 at 1164 (Side effects not severe enough to interfere with [plaintiff s] ability to 12 work are properly excluded from consideration). At the hearing, Plaintiff 13 provided no testimony that he suffered from any medication side-effects or had any 14 functional limitations from the alleged side-effects. (AR at 44-50.) The only 15 evidence regarding these alleged side-effects consists of Plaintiff s own statements 16 to the Administration in his disability application. Notably, the ALJ found 17 Plaintiff to not be credible regarding his subjective symptoms.6 Accordingly, the 18 ALJ found, that, the claimant s daily activities, his response to treatment and the 19 lack of side effects from medications, all serve to detract from his overall 20 credibility. (Id. at 17.) Thus, there was no reason for the ALJ to consider any 21 potential side-effects. 22 Based on the foregoing, the Court finds that the ALJ did not err by failing to 23 consider the side effects of Plaintiff s medications. 24 / / / 25 / / / 26 / / / 27 28 6 Plaintiff does not dispute the ALJ s credibility finding. 9 1 IV. 2 ORDER 3 Based on the foregoing, IT THEREFORE IS ORDERED that Judgment be 4 entered affirming the decision of the Commissioner, and dismissing this action 5 with prejudice. 6 7 Dated: November 24, 2009 8 HONORABLE OSWALD PARADA United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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