Niasandi S. Hithe v. Michael J. Astrue, No. 2:2009cv02529 - Document 17 (C.D. Cal. 2010)

Court Description: DECISION AND ORDER by Magistrate Judge Carla Woehrle, IT IS ORDERED that: 1. The decision of the Commissioner is AFFIRMED. 2. This action is DISMISSED WITH PREJUDICE. (SEE ORDER FOR FURTHER DETAILS) (lmh)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 NIASANDI S. HITHE, 13 ) ) ) ) ) ) ) ) ) ) ) Plaintiff, v. 14 15 MICHAEL J. ASTRUE, Commissioner, Social Security Administration, 16 Defendant. 17 No. CV 09-02529 CW DECISION AND ORDER 18 19 The parties have consented, under 28 U.S.C. § 636(c), to the 20 jurisdiction of the undersigned magistrate judge. 21 review of the denial of Disability Insurance Benefits ( DIB ) and 22 Supplemental Security Income ( SSI ) benefits. 23 judgment should be granted in favor of defendant, affirming the 24 Commissioner s decision. 25 26 I. Plaintiff seeks The court finds that BACKGROUND Plaintiff Niasandi S. Hithe was born on October 7, 1974, and was 27 thirty-one years old at the time she filed her application for 28 benefits. [Administrative Record ( AR ) 74, 79.] She met the insured 1 1 status requirements of the Social Security Act through December 31, 2 2003. [AR 13.] 3 courses, and has past relevant work as a telephone clerk, day guard, 4 dispatcher, customer service representative, fast-food cashier, and 5 file clerk. [AR 20.] 6 epilepsy. [AR 95.] She graduated high school, has some trade school 7 8 9 Plaintiff alleges disability on the basis of II. PROCEEDINGS IN THIS COURT Plaintiff s complaint was lodged on April 10, 2009, and filed on April 20, 2009. On October 22, 2009, Defendant filed an Answer and 10 Plaintiff s Administrative Record. 11 filed their Joint Stipulation ( JS ) identifying matters not in 12 dispute, issues in dispute, the positions of the parties, and the 13 relief sought by each party. 14 submission without oral argument. 15 III. On December 22, 2009, the parties This matter has been taken under PRIOR ADMINISTRATIVE PROCEEDINGS 16 Plaintiff applied for DIB under Title II of the Social Security 17 Act, and SSI under Title XVI of the Social Security Act, on February 18 6, 2006, alleging disability since January 30, 1999. [AR 74, 79.] 19 After the applications were denied initially and on reconsideration, 20 Plaintiff requested an administrative hearing, which was held on April 21 2, 2008, before an Administrative Law Judge ( ALJ ). 22 Plaintiff appeared with counsel and gave testimony. [AR 35.] 23 also considered the testimony of a vocational expert ( VE ). [AR 50.] 24 The ALJ denied benefits in a written decision issued on May 21, 2008. 25 [AR 10-22.] 26 the ALJ s decision became the Commissioner s final decision. [AR 1.] 27 28 [AR 32.] The ALJ When the Appeals Council denied review on March 20, 2009, IV. STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 2 1 Commissioner s decision to deny benefits. 2 ALJ s) findings and decision should be upheld if they are free of 3 legal error and supported by substantial evidence. 4 court determines that a finding is based on legal error or is not 5 supported by substantial evidence in the record, the court may reject 6 the finding and set aside the decision to deny benefits. 7 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. 8 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 9 F.3d 1157, 1162 (9th Cir. 2001); Tackett v. Apfel, 180 F.3d 1094, 1097 10 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); 11 Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada v. 12 Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). 13 The Commissioner s (or However, if the See Aukland Substantial evidence is more than a scintilla, but less than a 14 preponderance. Reddick, 157 F.3d at 720. 15 which a reasonable person might accept as adequate to support a 16 conclusion. 17 a finding, a court must review the administrative record as a whole, 18 weighing both the evidence that supports and the evidence that 19 detracts from the Commissioner s conclusion. 20 can reasonably support either affirming or reversing, the reviewing 21 court may not substitute its judgment for that of the Commissioner. 22 Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162. Id. To determine whether substantial evidence supports V. 23 It is relevant evidence Id. If the evidence DISCUSSION 24 A. THE FIVE-STEP EVALUATION 25 To be eligible for benefits, a claimant must demonstrate a 26 medically determinable impairment which prevents the claimant from 27 engaging in substantial gainful activity and which is expected to 28 result in death or to last for a continuous period of at least twelve 3 1 months. Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at 721; 42 2 U.S.C. § 423(d)(1)(A). 3 Claims are evaluated using a five-step test: 4 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a severe impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 5 6 7 8 9 10 11 12 13 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 14 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 15 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 16 C.F.R. § 404.1520, § 416.920. If a claimant is found disabled or 17 not disabled at any step, there is no need to complete further 18 steps. Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520. 19 Claimants have the burden of proof at steps one through four, 20 subject to the presumption that Social Security hearings are non21 adversarial, and to the Commissioner s affirmative duty to assist 22 claimants in fully developing the record even if they are represented 23 by counsel. Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at 24 1288. If this burden is met, a prima facie case of disability is 25 made, and the burden shifts to the Commissioner (at step five) to 26 27 28 4 1 prove that, considering residual functional capacity ( RFC )1, age, 2 education, and work experience, a claimant can perform other work 3 which is available in significant numbers. 4 1100; Reddick, 157 F.3d at 721; 20 C.F.R. §§ 404.1520, 416.920. Tackett, 180 F.3d at 1098, 5 B. THE ALJ S EVALUATION IN PLAINTIFF S CASE 6 Here, the ALJ found that Plaintiff had not engaged in substantial 7 gainful activity since January 30, 1999, the alleged disability onset 8 date (step one); that Plaintiff had the severe impairment of a 9 seizure disorder (step two); and that Plaintiff did not have an 10 impairment or combination of impairments that met or equaled a 11 listing (step three). [AR 13.] 12 The ALJ determined that Plaintiff had an RFC to perform a full 13 range of work at all exertional levels with the following non- 14 exertional limitations: she must avoid even moderate exposure to 15 workplace hazards such as moving machinery and heights; she must avoid 16 climbing ladders, ropes, or scaffolds; and she cannot drive a motor 17 vehicle. [AR 14.] 18 The ALJ found that Plaintiff is able to perform her past relevant 19 work as a telephone order clerk, day guard, motor transport 20 dispatcher, customer service representative, fast food cashier, and 21 file clerk (step four). [AR 20.] 22 also perform other work existing in significant numbers in the The ALJ found that Plaintiff could 23 1 24 25 26 27 28 Residual functional capacity measures what a claimant can still do despite existing exertional (strength-related) and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.s. 5-6 (9th Cir. 1989). Nonexertional limitations limit ability to work without directly limiting strength, and include mental, sensory, postural, manipulative, and environmental limitations. Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993); Cooper, 800 F.2d at 1155 n.7; 20 C.F.R. § 404.1569a(c). Pain may be either an exertional or a nonexertional limitation. Penny, 2 F.3d at 959; Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985); 20 C.F.R. § 404.1569a(c). 5 1 national economy, such as Assembler, Cashier II, Counter Clerk (step 2 five). [AR 21.] 3 defined by the Social Security Act (the Act ). [AR 22.] Accordingly, Plaintiff was found not disabled as 4 C. 5 The parties Joint Stipulation identifies as disputed issues 6 ISSUES IN DISPUTE whether the ALJ properly: 7 1. Considered the treating physician s opinion; 8 2. Considered the Plaintiff s testimony and made proper 9 credibility findings; 10 3. Considered the lay witness testimony; and 11 4. Complied with Social Security Ruling ( SSR ) 96-7p. 12 [JS 2.] 13 D. 14 Plaintiff first claims the ALJ did not properly evaluate a ISSUE ONE: TREATING PHYSICIAN S OPINION 15 statement by treating physician Sergio Fuenzalida, M.D., that 16 Plaintiff is unable to work. 17 The Commissioner generally favors the opinions of treating 18 physicians over those of non-treating physicians. 19 404.1527, 416.927. 20 opinions offered by a treating physician. 21 treating physician s conclusions regarding a claimant s limitations 22 for specific and legitimate reasons supported by substantial 23 evidence in the record. 24 2003). 25 and thorough summary of the facts and conflicting clinical evidence, 26 stating his interpretation thereof, and making findings. 27 v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008)(quoting Magallanes v. 28 Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 20 C.F.R. §§ An ALJ is not, however, required to adopt all The ALJ may reject a Connett v. Barnhart, 340 F.3d 871 (9th Cir. The ALJ may satisfy this standard by setting out a detailed 6 Tommasetti 1 The ALJ s decision met this standard. In assessing Plaintiff s 2 limitations, the ALJ detailed the history of Plaintiff s epilepsy 3 treatment since 1999. He described Plaintiff s self-reports to 4 physicians regarding the extent and frequency of her seizures, the 5 medication and dosage prescribed in response, and modifications to 6 that treatment over the course of time. [AR 13-20.] Based upon this 7 review of the record, the ALJ concluded that, while Plaintiff suffers 8 from epilepsy, she has seizures infrequently, most of which occur at 9 night, and that they do not preclude her from working. [Id.] 10 Dr. Fuenzalida treated Plaintiff every several months beginning 11 in 2006. In September 2006, Dr. Fuenzalida filled out a form on which 12 he noted, first, that Plaintiff is unable to work, and, second, that 13 she is able to work but is restricted from working near machinery. 14 [AR 324.] 15 concluded that the doctor did not intend to indicate that the 16 claimant is totally disabled from all work under the circumstances; 17 instead, the ALJ adopted Dr. Fuenzalida s opinion that Plaintiff is 18 able to work but cannot do so near machinery. [AR 19, 324.] 19 electing to discount the former opinion, the ALJ noted that Dr. 20 Fuenzalida s treatment records overall indicated that Plaintiff s 21 seizures are well controlled. [AR 19.] 22 the opinion of a treating physician regarding limitations that are not 23 supported by the physician s own treatment notes. 24 at 871. 25 seizures as well-controlled in both April and May 2006. [AR 321-33.] 26 Furthermore, in December 2007, though Plaintiff reported more than 27 four to five seizures per month to Dr. Fuenzalida, he did not adjust 28 her medication from prior levels. [AR 327.] After summarizing Dr. Fuenzalida s records, the ALJ In The ALJ is entitled to reject Connett, 340 F.3d As the ALJ noted, Dr. Fuenzalida described Plaintiff's 7 The ALJ concluded that 1 this suggested the doctor did not take Plaintiff s allegations 2 entirely seriously.2 [AR 18.] 3 this, that logically flows from the evidence. 4 694 F.2d 639, 642 (9th Cir. 1982). 5 The ALJ may draw an inference, such as Sample v. Schweiker, Plaintiff s assertion that the ALJ should have re-contacted Dr. 6 Fuenzalida to further develop his opinion on this issue does not 7 warrant a different result. 8 physician and further develop the record only when the evidence 9 provided by a claimant is ambiguous or insufficient to support a An ALJ is required to re-contact a Tonapetyan, 242 F.3d at 1150. The ALJ did not find Dr. 10 decision. 11 Fuenzalida s records, or the medical record as a whole, to be 12 ambiguous, but found, consistent with the assessment of the state 13 agency reviewing physicians [AR 275-82, 325], that Plaintiff s records 14 generally were consistent and supported the determination that 15 Plaintiff remains able to work with limitations. 16 Accordingly, this claim provides no grounds to reverse the ALJ s 17 decision. [See AR 19.] 18 E. 19 Next, Plaintiff contends the ALJ failed to set forth legally ISSUE TWO: CREDIBILITY 20 sufficient reasons for failing to find her to be credible. 21 is without merit. 22 This claim The Commissioner's assessment of plaintiff's credibility should 23 be given great weight. Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 24 1985). 25 credibility finding must be based on clear and convincing reasons. Absent affirmative evidence of malingering, an adverse 26 27 28 2 Plaintiff did not complain of seizures at her preceding or subsequent appointments, in October 2007 or March 2008. [AR 327, 33839.] 8 1 Carmickle v. Comm r of Social Sec. Admin., 533 F.3d 1155, 1160 (9th 2 Cir. 2008). 3 to permit the court to conclude that the ALJ did not arbitrarily 4 discredit claimant s testimony. Tommasetti, 533 F.3d at 1039 5 (quoting Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002)). 6 this case, the ALJ provided multiple clear and convincing reasons to 7 discount Plaintiff s allegations. 8 9 The credibility findings must be sufficiently specific In First, the ALJ found that Plaintiff s testimony regarding her limitations, the numbers of seizures she suffered, and the side 10 effects of her medications at multiple points exceeded or conflicted 11 with her self-reporting to physicians, which casts doubt on her 12 statements. [AR 15.] 13 may use ordinary techniques of credibility evaluation, such as 14 considering inconsistencies in a claimant s statements and her overall 15 level of frankness. 16 lack of self-reporting to her physicians about the extent of an 17 alleged symptom is a specific and legitimate reason to reject 18 credibility. 19 neck, shoulder, and back pain asserted she spent seventy-five percent 20 of her day lying down due to severe pain, but never reported this 21 restriction to her physician). 22 her medication makes her sleepy and dizzy, and she claimed she 23 discussed these side effects with her doctors and that they had 24 attempted to adjust the medication to account for these side effects. 25 [AR 15, 44.] 26 mention of sleepiness or dizziness, but referred only to transient 27 complaints of swollen legs. [See AR 329.] 28 In assessing plaintiff s credibility, the ALJ Tonapetyan, 242 F.3d at 1147-48. A claimant s Connett, 340 F.3d at 871 (plaintiff who alleged severe For example, Plaintiff testified that However, as the ALJ noted, the record did not include Second, the ALJ found that Plaintiff s description of her daily 9 1 activities exceeds and contradicts her description of her capacities. 2 [AR 18.] 3 grand mal seizures one or more times each week, after each of which 4 she must remain in bed for two days, and petit mal seizures almost 5 daily, which affect her behavior and require her to lay down to rest 6 for nearly an hour.3 [AR 41-43.] 7 lives alone with her two children, a six- and three-year old. 8 cooks, does the housework, walks her daughter to and from the bus 9 stop, and cares for her children s needs with occasional help from her Plaintiff testified that she is virtually inactive: she has However, Plaintiff reported that she She 10 mother and the children s father. [AR 41, 114-19.] 11 of the ALJ to evaluate apparent inconsistencies in a claimant s 12 statements, and he may discount a claimant s allegations based upon 13 such inconsistencies. 14 Cir. 1991). 15 these statements that Plaintiff would require more significant 16 assistance with her children and household tasks were she as 17 incapacitated as she claims. 18 findings, an ALJ may draw inferences logically flowing from the 19 evidence). 20 It is the province Bunnell v. Sullivan, 947 F.2d 341, 346 (9th It was the province of the ALJ, therefore, to infer from See Sample, 694 F.2d at 642 (in making Third, the ALJ noted that Plaintiff receives conservative 21 treatment for her epilepsy, which contradicts her allegations of 22 significant daily effects from petit or grand mal seizures. [AR 19.] 23 As the ALJ pointed out, there is no evidence that her physicians 24 recommended treatment other than medication, and no evidence Plaintiff 25 has attempted methods other than her medication to reduce seizure 26 27 28 3 As the ALJ noted, the medical records show Plaintiff made no reports to her physicians that she suffers daytime effects from seizures. [AR 20.] 10 1 activity. [AR 19.] 2 legitimate reason to discount a plaintiff s testimony regarding the 3 severity of an impairment. 4 Cir. 2007)(citing Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 5 1995)(holding that the fact that plaintiff s physical ailments were 6 treated with over the counter medication was a proper reason for 7 discounting his allegations of disabling pain); see also Tommasetti, 8 533 F.3d at 1040 (holding ALJ made permissible inference that 9 plaintiff s pain was not all-disabling as reported in light of fact 10 that plaintiff did not seek aggressive treatment program and finding 11 that plaintiff s favorable response to conservative treatment 12 undermined plaintiff s reports regarding disabling nature of pain). 13 Evidence of conservative medical treatment is a Parra v. Astrue, 481 F.3d 742, 750-51 (9th Fourth, the ALJ noted that Plaintiff did not attempt to work even 14 when the medical records indicated she was on an optimal combination 15 of medications. [AR 18.] 16 propensity to work can negatively impact credibility regarding 17 inability to do so. 18 2002). 19 to drive and reported that her seizures always occurred only in her 20 sleep, but she did not attempt at that time to obtain work. [AR 285.] 21 Although the ALJ s interpretation of the evidence in this case is not 22 necessarily the only reasonable one, because the credibility 23 assessment is supported by substantial record evidence and is based 24 upon legally permissible considerations, the court may not second- 25 guess it. 26 2001). Evidence that a plaintiff has shown little Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. As an example, in November 2005 Plaintiff asked to be allowed See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 27 F. ISSUE THREE: LAY WITNESS TESTIMONY 28 Plaintiff next contends that the ALJ failed to evaluate 11 1 adequately a written third-party function report submitted by 2 Plaintiff s mother; the ALJ found that it was unpersuasive in part 3 because it was not signed under penalty of perjury. [See AR 19.] 4 In determining whether a plaintiff is disabled, an ALJ must 5 consider lay witness testimony concerning a plaintiff s ability to 6 work. 7 1053 (9th Cir. 2006)(citations omitted). 8 [plaintiff s] symptoms or how an impairment affects ability to work is 9 competent evidence . . . and therefore cannot be disregarded without Stout v. Commissioner of Soc. Security Admin., 454 F.3d 1050, Lay testimony as to a 10 comment. Id. (citations omitted)(ALJ erred in ignoring lay testimony 11 from plaintiff s sister and a letter from plaintiff s brother-in-law, 12 with whom plaintiff had worked). 13 Here, however, the ALJ did not disregard the statement of 14 Plaintiff s mother. Instead, he concluded that the limitations she 15 described, even if credited as true, were not persuasive in 16 establishing disability when viewed in light of the record as a whole. 17 [AR 19.] 18 seizures occur while she is asleep, and that Plaintiff does not return 19 to normal for days after a seizure. [AR 103.] 20 however, given that the medical record indicates Plaintiff has 21 seizures infrequently, this statement does not support a finding of 22 disability. [See AR 16-18, 19.] 23 state how frequently she helps her daughter care for the two children 24 as a result of Plaintiff s seizure disorder. [AR 103-108.] Plaintiff s mother reported that most of Plaintiff s As the ALJ noted, Indeed, Plaintiff s mother did not 25 Moreover, as the ALJ noted, Plaintiff s mother indicated that 26 Plaintiff performs a range of daily activities and has primary care of 27 her two young children, which likewise does not support a finding that 28 Plaintiff is disabled. [AR 103-04.] 12 Given that the ALJ effectively 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 credited the mother s testimony but found it to be unpersuasive, even if Plaintiff is correct that the ALJ legally erred in suggesting the mother s statement was entitled to less weight because it was not signed under penalty of perjury, the error is harmless. Stout, 454 F.3d at 1054 (error in assessing lay witness testimony is harmless if another ALJ fully crediting the testimony would not have reached a different determination). Accordingly, this claim does not provide grounds for reversal. G. ISSUE FOUR: SSR 96-7p Finally, Plaintiff claims that the ALJ erred in failing to consider the side effects of her medication as required pursuant to SSR 96-7p. Plaintiff testified that her medication can cause dizziness and fatigue, and her mother indicated that Plaintiff s medication sometimes makes her sleepy. [AR 44, 103.] The ALJ adequately evaluated and discounted Plaintiff s side effects allegations. [See AR 15.] As discussed above, the ALJ specifically addressed Plaintiff s side effects allegations and, in so doing, found them not to be credible on the basis that Plaintiff did not report these side effects to her physicians. [AR 15, 44, 329.] Statements made by Plaintiff s attorney in the joint stipulation, to the effect that Plaintiff s medications may cause sleepiness or dizziness, are not evidence. Because even the passing mention of side effects without documentation of effects of sufficient severity to interfere with the ability to work is inadequate to demonstrate resulting impairment, Osenbrock v. Apfel, 240 F.3d 1157, 1164 (9th Cir. 2000), the ALJ did not err in declining to include sleepiness and dizziness, which according to Plaintiff s mother were merely transient 13 1 2 3 side effects, in the RFC here. contention. V. 4 5 6 7 8 9 Accordingly, there is no merit to this ORDERS Accordingly, IT IS ORDERED that: 1. The decision of the Commissioner is AFFIRMED. 2. This action is DISMISSED WITH PREJUDICE. 3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel. 10 11 12 13 DATED: June 15, 2010 ______________________________ CARLA M. WOEHRLE United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14

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