Brent Allen George v. Michael J. Astrue, No. 8:2013cv00124 - Document 13 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jay C. Gandhi. IT IS ORDERED THAT judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits. ( See Order for details) (bem)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 BRENT ALLEN GEORGE, 12 Plaintiff, 13 14 v. 15 CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL 1/ SECURITY ADMINISTRATION, 16 Defendant. 17 ) Case No. SA CV 13-0124 (JCG) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) ) 18 Brent Allen George ( Plaintiff ) challenges the Social Security 19 20 Commissioner s ( Defendant ) decision denying his application for disability 21 benefits. Three issues are presented for decision here: 1. 22 Whether the Administrative Law Judge ( ALJ ) improperly rejected the 23 opinions of Plaintiff s treating psychiatrists, Drs. Arey and Beheshti, (see Joint Stip. 24 at 7-13); 2. 25 Whether the ALJ improperly rejected Plaintiff s credibility, (see id. at 26 7, 19-23); and 27 28 1/ Carolyn W. Colvin is substituted as the proper defendant herein. See Fed. R. Civ. P. 25(d). 1 3. Whether the ALJ improperly rejected the lay testimony of Plaintiff s 2 brother, Braun George, (see id. at 7, 19-21). 3 The Court addresses, and rejects, Plaintiff s contentions below. 4 A. 5 Plaintiff first asserts that the ALJ improperly rejected the opinions of his The ALJ s Rejection of Plaintiff s Treating Psychiatrists Opinions 6 treating psychiatrists, Drs. Britton Arey and Sayeh Beheshti. (Joint Stip. at 7-13.) 7 The Court disagrees. 8 If the ALJ wishes to disregard the opinion of the treating physician, he or 9 she must make findings setting forth specific, legitimate reasons for doing so that are 10 based on substantial evidence in the record. Murray v. Heckler, 722 F.2d 499, 502 11 (9th Cir. 1983); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). 12 Here, the ALJ gave two valid reasons for discrediting the opinions of Drs. 13 Arey and Beheshti. 14 First, the ALJ properly found that the psychiatrists opinions are contradicted 15 by Plaintiff s testimony. See Magallanes v. Bowen, 747, 751-53 (9th Cir. 1989) 16 (finding ALJ [properly] rejected [treating physician s] opinion based on the 17 claimant s own testimony ). Here, Dr. Arey suggests that Plaintiff s symptoms have 18 render[ed] him unable to perform any type of work since 1995. (AR at 494.) 19 Specifically, Plaintiff s symptoms cause him to decompensate and miss more 20 than three days of work a month. (Id.) Dr. Arey further finds that even low-stress 21 jobs cause a marked increase in [Plaintiff s] symptoms which have caused him to 22 quit. (Id.) Dr. Beheshti, for his part, suggests that [Plaintiff s] auditory 23 hallucinations interfere with his ability to follow instructions or focus on any task. 24 (Id. at 485.) He concludes that Plaintiff is unable to work through the voices. (Id.) 25 The doctors opinions, however, are belied by Plaintiff s testimony of a long 26 and successful work history. For example, Plaintiff testified that he worked at 27 28 2 1 Domino s Pizza from 1998 to 20102/ with no increasing symptoms. (AR at 46, 2 59.) He stopped because it was just too much stress for [him]. (Id. at 46.) Yet, 3 Plaintiff admitted that the job had always been stressful. (Id. at 47.) Indeed, 4 Plaintiff stated that nothing, had changed to make him quit. (Id.) He just [got] 5 tired of it. (Id.) 6 Plaintiff s also testified that his auditory hallucinations do not preclude all 7 employment, as the doctors suggest. (Id. at 55.) Plaintiff conceded that he was able 8 to work through the voices while at Domino s. (Id. at 62.) They had not caused 9 him to miss work or take extra breaks, as Dr. Arey alleges. (See id. at 62, 74-75.) 10 Further, the voices had been present the whole time he was working. (Id. at 47, 11 55.) Indeed, neither the voices nor Plaintiff s other symptoms have worsened since 12 he was diagnosed in 1995. (Id.) Finally, Plaintiff testified that he had never been 13 reprimanded by his boss for messing up or losing focus, as Dr. Beheshti proposes. 14 (Id. at 56, 485); see Valentine v. Comm r of Social Sec. Admin., 74 F.3d 685, 692 15 (9th Cir. 2009) (ALJ provided specific and legitimate reason for rejecting 16 contradicted opinion of treating physician where physician repeatedly reported 17 [claimant] was unemployable while claimant testified he was working full-time). 18 Second, the ALJ properly found that the opinions of Drs. Arey and Beheshti 19 that Plaintiff is unable to perform any type of work . . . [are] opinion[s] on an issue 20 reserved to the Commissioner. (AR at 32); See Tonapetyan v. Halter, 242 F.3d 21 1144, 1149 (9th Cir. 2001) (treating physician s opinion is not binding on an ALJ 22 with respect to [] the ultimate determination of disability ); 20 C.F.R. § 23 416.927(e)(1) ( A statement by a medical source that you are disabled or unable 24 to work does not mean that we will determine that you are disabled. ). In other 25 2/ Plaintiff stopped working in 2008 because his license was suspended after he blacked out on a few occasions. (AR at 26.) Plaintiff returned to Domino s Pizza 27 eight months later when he got his license back. (Id.) He testified that he has not 28 blacked out since. (Id. at 26, 52.) 26 3 1 words, the doctors non-medical opinions that Plaintiff is unable to work are not 2 binding on the Commissioner. (See AR at 485, 494.) 3 Accordingly, the ALJ properly rejected the opinions of Drs. Arey and 4 Beheshti. 5 B. The ALJ s Rejection of Plaintiff s Credibility 6 Plaintiff next contends that the ALJ improperly rejected his credibility. (Joint 7 Stip. at 7, 19-23.) The Court disagrees. 8 An ALJ can reject a plaintiff s credibility only upon (1) finding evidence of 9 malingering, or (2) expressing clear and convincing reasons for doing so. Benton 10 ex rel. Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). General findings 11 are insufficient; rather, the ALJ must identify what testimony is not credible and 12 what evidence undermines the claimant s complaints. Lester v. Chater, 81 F.3d 13 821, 834 (9th Cir. 1995). 14 Here, the ALJ gave two valid reasons for rejecting Plaintiff s credibility. 15 First, the ALJ properly rejected Plaintiff s credibility because it contained 16 inconsistencies. (AR at 28); see Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 17 2002) (specifically listing inconsistent statements as a valid reason for discrediting a 18 claimant). Plaintiff testified that his auditory hallucinations and paranoia preclude 19 all forms of employment. (AR at 57, 59.) However, as discussed above, Plaintiff 20 testified that his symptoms are no worse now than they were when he was working. 21 (Id.) Further, Plaintiff s allegation of total disability conflicts with his Adult 22 Function Report. (See id. at 236.) There, Plaintiff wrote that there was nothing he 23 could do before his illness that he cannot do now. (Id.) 24 Second, the ALJ properly found that Plaintiff s subjective complaints are 25 inconsistent with his conduct. (AR at 21); see Thomas, 278 F.3d at 958-59 26 (inconsistency between the claimant s testimony and the claimant s conduct 27 supported rejection of the claimant s credibility). Here, Plaintiff admits to normal 28 activities of daily living, including housework, preparing meals, and going for 4 1 drives. (Id. at 54.) For example, Plaintiff recently drove for two days to New 2 Mexico, by himself, to pick up his brother. (Id.) Plaintiff also cares for his elderly 3 father and runs errands for him. (Id. at 50.) Plaintiff partakes in many social 4 activities. (Id. at 29.) He goes to movies, baseball games, and church. (Id. at 29, 5 405, 469). He participates in family gatherings. (AR at 474.) Plaintiff even took a 6 cruise and a yoga class. (Id. at 418, 469.) Plaintiff s ability to attend and enjoy 7 these social activities . . . [is] inconsistent with the alleged disabling nature of his 8 symptoms and diminishes the credibility of those allegations as a whole. (AR at 9 29); see Valentine, 574 F.3d at 694 (ALJ properly recognized that even if claimant s 10 daily activities did not suggest that he could return to his prior work, they did show 11 that the alleged severity of his limitations was exaggerated). 12 C. The ALJ s Rejection of Braun George s Layperson Testimony 13 Plaintiff also contends that the ALJ improperly rejected the lay testimony of 14 his brother, Braun George. (Joint Stip. at 7, 19-21.) The Court disagrees. 15 When an ALJ discounts the testimony of lay witnesses, he must give 16 reasons that are germane to each witness. Valentine, 574 F.3d at 694 (quoting 17 Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993)). 18 Here, the ALJ gave two valid reasons for rejecting Braun George s testimony. 19 First, the ALJ properly rejected the majority of Braun George s testimony 20 because it was not based on personal observations. (AR at 27, 70) (ALJ: Have you 21 personally seen [claimant s] problems manifest themselves? Braun George: Wow, 22 gees, that s hard to describe, gees. Just the things, just the things he tells us. ); see 23 Smolen v. Chater 80 F.3d 1273, 1288 (9th Cir. 1996) ( the Commissioner will 24 consider observations by nonmedical sources) (emphasis added) (citing 20 C.F.R. § 25 404.1513(e)(2)). 26 Second, the ALJ properly rejected Braun George s limited firsthand testimony 27 because it echoes Plaintiff s subjective complaints. (AR at 27.) As described above, 28 the ALJ properly found that Plaintiff s subjective complaints are not credible. See 5 1 Molina v. Astrue, 674 F.3d 1104, 1122 (9th Cir.2012) ( if the ALJ gives germane 2 reasons for rejecting testimony by one witness, the ALJ need only point to those 3 reasons when rejecting similar testimony by a different witness ); Valentine, 574 4 F.3d at 694 ( In light of our conclusion that the ALJ provided clear and convincing 5 reasons for rejecting [claimant s] own subjective complaints, and because 6 [layperson s] testimony was similar to such complaints, it follows that the ALJ also 7 gave germane reasons for rejecting her testimony. ). 8 For the above reasons, the Court finds that substantial evidence supports the 9 ALJ s decision that Plaintiff is not disabled. See Mayes v. Massanari, 276 F.3d 453, 10 458-59 (9th Cir. 2001). 11 Based on the foregoing, IT IS ORDERED THAT judgment shall be entered 12 AFFIRMING the decision of the Commissioner denying benefits. 13 14 Dated: October 29, 2013 15 _________________________________ 16 Hon. Jay C. Gandhi United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 6

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