Fitzgerald Fields Sr. v. Michael J. Astrue, No. 2:2009cv07177 - Document 15 (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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Fitzgerald Fields Sr. v. Michael J. Astrue Doc. 15 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 FITZGERALD FIELDS SR., 13 ) ) ) ) ) ) ) ) ) ) ) Plaintiff, v. 14 15 MICHAEL J. ASTRUE, Commissioner, Social Security Administration, 16 Defendant. 17 No. EDCV 09-7177 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 supplemental security income. 22 that judgment should be granted in favor of defendant, affirming the 23 Commissioner s decision. 24 25 I. Plaintiff seeks The court finds BACKGROUND Plaintiff Fitzgerald Fields Sr. was born on April 15, 1964, and 26 was forty-five years old at the time of his administrative hearing. 27 [Administrative Record ( AR ) 154.] 28 and past relevant work as a construction laborer. He has a high school education [AR 39-40, 175.] 1 Dockets.Justia.com 1 Plaintiff alleges disability on the basis of sleep apnea, problems 2 with his knee and hip, and seizures. 3 II. 4 [AR 169.] PROCEEDINGS IN THIS COURT Plaintiff s complaint was lodged on October 1, 2009, and filed on 5 October 8, 2009. 6 Administrative Record. 7 Joint Stipulation ( JS ) identifying matters not in dispute, issues in 8 dispute, the positions of the parties, and the relief sought by each 9 party. 10 On April 16, 2010, Defendant filed an answer and the On June 15, 2010, the parties filed their This matter has been taken under submission without oral argument. 11 III. 12 PRIOR ADMINISTRATIVE PROCEEDINGS Plaintiff applied for supplemental security income on January 17, 13 2008, alleging disability since August 1, 2004.1 14 application was denied initially and upon reconsideration, Plaintiff 15 requested an administrative hearing, which was held on April 1, 2009, 16 before Administrative Law Judge Robert A. Evans ( ALJ ). 17 61-65, 67-71.] 18 [AR 36-55.] 19 2009. 20 27, 2009, the ALJ s decision became the Commissioner s final decision. 21 [AR 2-4.] 23 After the [AR 36-55, Plaintiff appeared with counsel and gave testimony. The ALJ denied benefits in a decision issued on June 19, [AR 28-35.] 22 [AR 154.] When the Appeals Council denied review on August IV. STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 24 Commissioner s decision to deny benefits. The Commissioner s (or 25 ALJ s) findings and decision should be upheld if they are free of 26 1 27 28 Because Supplemental Security Income payments are not retroactive, the relevant time period for plaintiff s current application begins on plaintiff s protective filing date of January 31, 2008. See 42 U.S.C. § 1382(c)(7); 20 C.F.R. § 416.501. 2 1 legal error and supported by substantial evidence. 2 court determines that a finding is based on legal error or is not 3 supported by substantial evidence in the record, the court may reject 4 the finding and set aside the decision to deny benefits. 5 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. 6 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 7 F.3d 1157, 1162 (9th Cir. 2001); Tackett v. Apfel, 180 F.3d 1094, 1097 8 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); 9 Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada v. 10 11 However, if the See Aukland Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam). Substantial evidence is more than a scintilla, but less than a 12 preponderance. Reddick, 157 F.3d at 720. 13 which a reasonable person might accept as adequate to support a 14 conclusion. 15 a finding, a court must review the administrative record as a whole, 16 weighing both the evidence that supports and the evidence that 17 detracts from the Commissioner s conclusion. 18 can reasonably support either affirming or reversing, the reviewing 19 court may not substitute its judgment for that of the Commissioner. 20 Id. at 720-21; see also Osenbrock, 240 F.3d at 1162. 21 V. Id. It is relevant evidence To determine whether substantial evidence supports Id. If the evidence DISCUSSION 22 A. THE FIVE-STEP EVALUATION 23 To be eligible for disability benefits a claimant must 24 demonstrate a medically determinable impairment which prevents the 25 claimant from engaging in substantial gainful activity and which is 26 expected to result in death or to last for a continuous period of at 27 least twelve months. 28 721; 42 U.S.C. § 423(d)(1)(A). Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at 3 1 Disability claims are evaluated using a five-step test: 2 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. 3 4 5 6 7 8 9 10 11 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 12 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 13 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 14 C.F.R. § 416.920. If a claimant is found disabled or not disabled 15 at any step, there is no need to complete further steps. Tackett, 180 16 F.3d 1098; 20 C.F.R. § 416.920. 17 Claimants have the burden of proof at steps one through four, 18 subject to the presumption that Social Security hearings are non19 adversarial, and to the Commissioner s affirmative duty to assist 20 claimants in fully developing the record even if they are represented 21 by counsel. Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at 22 1288. If this burden is met, a prima facie case of disability is 23 made, and the burden shifts to the Commissioner (at step five) to 24 prove that, considering residual functional capacity ( RFC )2, age, 25 26 2 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.5-6 (9th Cir. 1989). Nonexertional limitations limit ability to 4 1 education, and work experience, a claimant can perform other work 2 which is available in significant numbers. 3 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 416.920. Tackett, 180 F.3d at 1099- 4 B. THE ALJ S EVALUATION IN PLAINTIFF S CASE 5 Here, the ALJ found that Plaintiff had not engaged in substantial 6 gainful activity since January 31, 2008, the protective filing date of 7 Plaintiff s application (step one); that Plaintiff had the severe 8 impairments of seizure disorder vs. asystole and status post left knee 9 surgery (step two); and that Plaintiff did not have an impairment or 10 combination of impairments that met or equaled a listing (step 11 three). 12 lift and carry fifty pounds occasionally and twenty-five pounds 13 frequently, stand/walk six hours in an eight-hour workday provided he 14 can sit every two hours as needed for alleged right hip or right knee 15 pain, and sit six hours in an eight-hour workday. 16 was restricted from working at heights or near hazardous machinery. 17 [Id.] 18 four). 19 ALJ determined that Plaintiff could perform certain jobs existing in 20 significant numbers in the national economy, including janitor (step 21 five). 22 as defined by the Social Security Act. [AR 30.] The ALJ determined that Plaintiff had the RFC to [Id.] Plaintiff Plaintiff was unable to perform his past relevant work (step [AR 33.] Based on testimony from the vocational expert, the [AR 33-34.] Accordingly, Plaintiff was found not disabled [AR 34.] 23 C. 24 The parties Joint Stipulation identifies the following disputed 25 ISSUES IN DISPUTE issues: 26 27 28 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 1156 n.7; 20 C.F.R. § 404.969a(c). 5 1 1. 2 3 Whether the ALJ properly held that Plaintiff can perform the job of janitor; 2. Whether the ALJ s finding that Plaintiff is limited to 4 standing and/or walking for six hours out of an eight-hour 5 workday provided he can sit for two hours as needed for 6 right hip or right knee pain is consistent with the ALJ s 7 finding that Plaintiff is capable of performing the 8 exertional demands of medium work as a janitor; 9 3. equals listing 11.02B3; and 10 11 4. 12 13 14 Whether the ALJ properly considered Plaintiff s testimony and made proper credibility findings. [JS 2-3.] D. 15 16 Whether the ALJ properly considered if Plaintiff meets or ISSUES ONE AND TWO: STEP FIVE FINDING Background Plaintiff alleges that he experienced episodes of seizures from 17 2004-2008. 18 Kay, a treating internist, diagnosed Plaintiff with a seizure disorder 19 and prescribed seizure medication. 20 [AR 41.] According to Plaintiff, in 2004, Dr. Richard [Id.] On April 2, 2008, Dr. Barry Gordon Gwartz, a consultative 21 examiner, concluded that Plaintiff was capable of lifting and/or 22 carrying fifty pounds occasionally and twenty-five pounds frequently, 23 standing and/or walking for six hours out of an eight-hour workday 24 provided he can sit every two hours as needed, and sit for six hours 25 out of an eight-hour workday. [AR 254-59.] Dr. Gwartz imposed no 26 3 27 28 The parties incorrectly state in the Joint Stipulation that the issue is whether Plaintiff meets or equals listing 13.10. [JS 3.] Listing 13.10 concerns breast cancer, not one of the impairments at issue here. 20 C.F.R. Part 404, Subpart P, Appendix 1, Listing 13.10. 6 1 other limitations except to preclude Plaintiff from working at heights 2 or near hazardous machinery because of his history of alleged seizure 3 disorder. 4 seizure disorder. 5 neurological examination, but that Plaintiff reported a history of 6 nighttime seizure disorder. 7 Agency review physician, agreed with Dr. Gwartz s exertional 8 limitations. 9 [AR 259.] Dr. Gwartz did not diagnose Plaintiff with a Rather, he noted that Plaintiff had a normal [AR 258.] Dr. Elliot L. Gilpeer, a State [AR 263.] In November 2008, Plaintiff checked into USC University Hospital 10 ( USC ) for an epilepsy study. 11 Plaintiff, USC doctors learned that Plaintiff was actually 12 experiencing periods of syncope4 and asystole5 and recommended a 13 pacemaker. 14 neurologist at USC, verified that Plaintiff was not experiencing 15 seizures. 16 pacemaker in Plaintiff. 17 Kalayjian wrote that Plaintiff was likely misdiagnosed with a seizure 18 disorder. 19 syncope, which caused the loss of consciousness. 20 explained that due to the implantation of a pacemaker, Plaintiff 21 should no longer experience any syncopal episodes. 22 Kalayjian discontinued Plaintiff s seizure medications. [AR 368-70.] [AR 298.] [AR 314.] [AR 50-51, 365-67.] While monitoring Dr. Laura Ann Kalayjian, a treating On November 13, 2008, doctors implanted a [AR 353-54.] On November 14, 2008, Dr. Dr. Kalayjian explained that Plaintiff had [Id.] Dr. Kalayjian [Id.] Dr. [Id.] 23 24 4 25 26 27 28 Syncope is the temporary partial or complete loss consciousness with interruption of awareness of oneself and one s surroundings. Syncope can be caused by heart problems. See http://www.medterms.com/script/main/art.asp?articlekey=5612. 5 Asystole is defined as cardiac standstill or arrest; absence of heartbeat. See http://medical-dictionary.thefreedictionary.com/asystole. 7 1 Plaintiff stopped experiencing seizures or episodes when he lost 2 consciousness, whether synocopal or seizure-related, after the 3 procedure and was informed the previous seizure diagnosis was 4 incorrect. 5 [AR 51, 458.] At the April 1, 2009, administrative hearing, the ALJ asked the 6 vocational expert whether a person with Plaintiff s limitations, 7 including the need to sit every two hours and preclusion from working 8 around heights and around dangerous machinery, could perform any range 9 of medium exertion jobs in the national economy. [AR 53-54.] The 10 vocational expert responded that the person could perform the job of a 11 janitor (Dictionary of Occupational Titles ( DOT ) code 381.687-018). 12 [AR 54.] 13 that Plaintiff was not disabled. 14 The ALJ adopted the vocational expert s testimony to find [AR 33-34.] Plaintiff s Claim 15 Plaintiff argues that the ALJ erred in finding that he can 16 perform the job of janitor because the job is inconsistent with his 17 RFC. 18 janitor would require him to work around hazardous machinery. 19 6.] 20 him to stand or walk for a total of approximately [six] hours in an 21 [eight]-hour workday, which does not meet the requirement that he can 22 sit every two hours as needed. 23 argues that the ALJ s decision at step five was based on reversible 24 error. 25 [JS 3-6, 11-13.] First, Plaintiff asserts that the job of [AR 3- Second, Plaintiff argues that the job of janitor would require [AR 11-13.] Accordingly, Plaintiff [AR 6, 13.] Because these arguments both concern the step five analysis and 26 inconsistency with Plaintiff s RFC, the Court will address them 27 together. 28 8 Discussion 1 2 At step five of the sequential evaluation, the burden of proof 3 shifts to the Commissioner to identify specific jobs existing in 4 substantial numbers in the national economy that claimant can perform 5 despite his identified limitations. 6 1432 (9th Cir. 1995). 7 these jobs is through the testimony of a vocational expert, who can 8 assess the effect of any limitation on the range of work at issue, 9 identify jobs which are within the RFC, if they exist, and provide a Johnson v. Shalala, 60 F.3d 1428, One method of demonstrating the existence of 10 statement of the incidence of such jobs in the region where the 11 claimant lives or in several regions of the country. 12 Ruling ( SSR ) 83-12, 1983 WL 31253 at *3. 13 Social Security Pursuant to SSR 00-4p, 2000 WL 1898704 at *4, when a vocational 14 expert provides evidence about the requirements of a job or 15 occupation, the ALJ has an affirmative responsibility to ask about 16 any possible conflict between that testimony and the Dictionary of 17 Occupational Titles ( DOT ) and to obtain a reasonable explanation for 18 any conflict. 19 Circuit has held that an ALJ may not rely on a vocational expert s 20 testimony without first inquiring whether the testimony conflicts with 21 the DOT. 22 The failure to expressly follow this procedural error can be harmless 23 when there is no conflict or if the vocational expert provided 24 sufficient support for her conclusion. 25 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) ( A decision of the ALJ 26 will not be reversed for errors that are harmless. ). 27 28 In light of the requirements of SSR 00-4p, the Ninth Massachi v. Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 2007). Id. at 1154, n.19; Burch v. The Court finds that the ALJ committed a procedural error when he failed to expressly ask the vocational expert if her testimony was 9 1 consistent with the DOT6, but that the error is harmless for multiple 2 reasons. 3 First, there is sufficient support for the vocational expert s 4 conclusion. See Massachi, 486 F.3d at 1154, n.19. 5 incorporated both restrictions the need to sit every two hours and 6 preclusion from working around heights and hazardous machinery in 7 his hypothetical to the vocational expert. 8 vocational expert responded to the ALJ s hypothetical and determined 9 that in spite of those limitations, there were medium work7 jobs that [AR 53-54.] The 10 Plaintiff could perform. 11 expressly explained that a janitor would be given a ten to fifteen- 12 minute break every two hours. 13 [AR 54.] The ALJ expressly In addition, the vocational expert [Id.] Second, the ALJ s actions amount to harmless error because there 14 is no conflict between the vocational expert s testimony and the DOT 15 description. 16 failure to ask if there is a conflict can be harmless when there is no 17 conflict). 18 janitor but this does not mean that every listed duty is mandatory to 19 the position. 20 provides only occupational information on jobs as they have been 21 found to occur, but they do not coincide in every respect with the 22 contents of jobs as performed in particular establishments or at Massachi, 486 F.3d at 1154, n.19 (stating that the A DOT description lists duties that may be required of a See Johnson, 60 F.3d at 1435 (stating that the DOT 23 24 25 6 In the decision, the ALJ wrote that the testimony of the vocational expert was consistent with the information contained in the DOT. [AR 34.] The ALJ, however, did not actually ask the vocational expert whether her testimony conflicted with the DOT. [AR 53-55.] 26 7 27 28 Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also do sedentary and light work. 20 C.F.R. § 416.967(c). 10 1 certain localities ) (citation omitted). 2 with incinerators, lawnmowers, handtrucks, or industrial trucks, 3 others do not.8 4 testimony do not deviate from the DOT job description or conflict with 5 Plaintiff s RFC. 6 While some janitors may work Thus, the ALJ s finding and the vocational expert s Third, Plaintiff s RFC was based upon a misdiagnosis. [AR 51, 7 314.] When the consultative examiner and State Agency review 8 physician offered their opinions as to Plaintiff s RFC, they 9 restricted him from working at heights or near hazardous machinery due 10 to his history of alleged seizure disorder. 11 consultative examiner nor State Agency review physician diagnosed 12 Plaintiff with a seizure disorder or verified the diagnosis with 13 Plaintiff s medical records, but rather relied on Plaintiff s own 14 reporting. 15 was incorrectly diagnosed with a seizure disorder and no longer 16 suffers from any syncopal episodes, the limitations restricting him 17 from working around heights and dangerous machinery are inappropriate 18 and should not have been included in the RFC. 19 supports the finding that there is no medical basis for including 20 these limitations in any future RFC determination. 21 [AR 258.] [AR 259.] Neither the Given the subsequent discovery that Plaintiff Substantial evidence [AR 458.] Finally, even if the job of janitor conflicted with Plaintiff s 22 RFC limitations, there are other jobs that he can perform. 23 concluded that Plaintiff can perform medium work, which includes light 24 and sedentary work. [AR 30.] 20 C.F.R. § 416.967(c). The ALJ Sedentary work 25 8 26 27 28 Even if Plaintiff had to transport items with a handtruck or industrial truck as listed in the DOT description, Plaintiff was able to operate both safely. On November 14, 2008, Plaintiff s treating physician reported to the Department of Motor Vehicles that Plaintiff s condition, syncope, would not affect Plaintiff s ability to engage in safe driving. [AR 311.] 11 1 involves sitting and requires only occasional walking and standing. 2 20 C.F.R. § 416.967(a). 3 require work around hazardous machinery. 4 *9. 5 There are few unskilled sedentary jobs which SSR 96-9p, 1996 WL 374185 at Sedentary work should accommodate Plaintiff s limitations. Accordingly, the ALJ did not commit reversible error when he 6 failed to expressly ask the vocational expert as to whether her 7 testimony conflicted with the DOT description. 8 E. 9 At step three of the sequential evaluation, plaintiff has the 10 burden to show that his impairment, or combination of impairments, 11 meets or equals a listing. 12 F.3d at 1098. 13 all of the specified medical criteria in the listing. 14 F.3d at 1099. 15 symptoms, signs and laboratory findings at least equal in severity 16 and duration to the characteristics of a relevant listed impairment. 17 Id. (quoting 20 C.F.R. § 404.1526). 18 ISSUE THREE: STEP THREE FINDING Lester, 81 F.3d at 828, n.5; Tackett, 180 In order to meet a listing, the impairment must meet Tackett, 180 In order to equal a listing, a plaintiff must establish Plaintiff argues that the ALJ failed to properly consider whether 19 he met or equaled listing 11.02B. 20 provides, in relevant part: [JS 15-18.] Listing 11.02B 21 Epilepsy - convulsive epilepsy, (grand mal or psychomotor), 22 documented by detailed description of a typical seizure pattern, 23 including all associated phenomena; occurring more frequently 24 than once a month, in spite of at least 3 months of prescribed 25 treatment. With: 26 27 28 12 B. 1 2 3 Nocturnal episodes manifesting residuals which interfere significantly with activity during the day. 20 C.F.R. Part 404, Subpart P, Appendix 1, Listing 11.02. 4 The ALJ properly found that Plaintiff did not meet or equal 5 listing 11.02B. As the ALJ discussed, the record does not adequately 6 support Plaintiff s contention that he has a seizure disorder. 7 32.] 8 disorder, Plaintiff was informed in November 2008 that he had been 9 previously misdiagnosed and actually suffered from asystole and [AR Although prior to 2008, Plaintiff was diagnosed with a seizure 10 syncope. 11 Plaintiff, doctors discontinued Plaintiff s anti-seizure medication. 12 [AR 314.] 13 during a routine followup of his pacemaker that he had no further 14 syncopal episodes. 15 his misdiagnosis during the hearing, he fails to mention it in his 16 argument. 17 [AR 32, 51, 314.] After surgery to implant a pacemaker in On February 4, 2009, Plaintiff reported to his doctor [AR 458.] Despite Plaintiff s acknowledgment of [AR 51.] Even if Plaintiff did have a seizure disorder, the ALJ adequately 18 explained in his decision why Plaintiff did not meet or equal a 19 listing. 20 seizure pattern by a reporting physician or testimony of persons 21 other than the claimant. 22 Listing 11.00A. 23 description as it contains no records of doctor s visits, emergency 24 room visits or hospitalization documenting the alleged seizure 25 activity. 26 a seizure disorder, simply indicates in his treatment notes that 27 Plaintiff has a seizure disorder. 28 that his wife and others have witnessed these seizures but none have The listing requires a detailed description of a typical 20 C.F.R. Part 404, Subpart P, Appendix 1, The ALJ noted that the record is bereft of any such [AR 32.] Dr. Kay, the doctor who diagnosed Plaintiff with [AR 231-48.] 13 Plaintiff alleges 1 provided any testimony or statements as required when no physician has 2 provided a description of the seizure activity. 3 the doctors at USC who were studying Plaintiff for an epilepsy study 4 concluded that he had syncope and not a seizure disorder. 5 314.] 6 follow[] prescribed antiepileptic treatment. 7 Subpart P, Appendix 1, Listing 11.00A. 8 was not fully compliant with his treatment plan. 9 Accordingly, the ALJ correctly concluded that Plaintiff s impairment 10 11 [AR 179.] Indeed, [AR 32, Moreover, the listing also requires that an individual 20 C.F.R. Part 404, The ALJ noted that Plaintiff [AR 33, 228-30.] did not meet Listing 11.02B. The ALJ also correctly found that Plaintiff s impairment, or 12 combination of impairments, did not equal listing 11.02B. 13 cites his Seizure Questionnaire, where he describes his seizures, as 14 an example of how he meets or equals listing 11.02B. [AR 177-179.] 15 Plaintiff, however, fails to even mention his subsequent diagnosis of 16 syncope, treatment for syncope, and the lack of further episodes of 17 syncope after treatment. 18 equivalence or offers a theory which includes discussion of the 19 subsequent diagnosis and lack of symptoms, the ALJ was not required to 20 explain his finding and discuss the combined effects of the 21 impairments. 22 (rejecting claimant s argument that the ALJ failed to adequately 23 explain his finding that his impairments did not equal a listing 24 because claimant failed to offer a theory as to how the impairments 25 equaled a listing). 26 11.02B and no remand is required. Plaintiff Unless Plaintiff presents evidence of an See Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001) As such, Plaintiff failed to satisfy listing 27 28 14 1 F. ISSUE FOUR: CREDIBILITY 2 During the hearing, Plaintiff testified that his seizures 3 prevented him from working. [AR 41.] Plaintiff testified that he 4 took anti-seizure medication from 2004 through 2008. 5 explained that in November 2008, doctors at USC who were monitoring 6 him told him that he was not having any seizures but rather had 7 congestive heart failure and required a pacemaker. 8 testified that the doctors explained to him that he was misdiagnosed 9 with seizures. [Id.] [Id.] Plaintiff Plaintiff [AR 51.] The ALJ found that Plaintiff s statements concerning the 10 11 intensity, persistence and limiting effects of [his] symptoms are not 12 credible to the extent that they are inconsistent with his RFC. 13 33.] 14 determined that there was no evidence of disuse muscle trophy that 15 would be compatible with Plaintiff s alleged level of inactivity. 16 [Id.] 17 seizures, the ALJ concluded that they were inconsistent with the 18 treatment he received. 19 doctor s visits, emergency room visits, or hospitalizations for 20 seizures. 21 record showed that Plaintiff was not fully compliant with his 22 medication protocol. 23 care of his two children and disabled wife. 24 that the ALJ did not provide clear and convincing reasons for 25 discrediting his testimony and failed to specifically explain which 26 parts of [his] statements were credible and which were not. 27 25.] [AR With regard to Plaintiff s knee and hip problems, the ALJ As for Plaintiff s complaint and limitations regarding his [Id.] [Id.] The record contained no evidence of Further, contrary to Plaintiff s contentions, the [Id.] The ALJ also noted that Plaintiff takes 28 15 [Id.] Plaintiff asserts [JS 21- 1 Questions of credibility and resolution of conflicts in the 2 testimony are functions solely for the ALJ. Parra v. Astrue, 481 F.3d 3 742, 750 (9th Cir. 2007) (citing Sample v. Schweiker, 694 F.2d 639, 4 642 (9th Cir. 1982)). 5 symptom testimony is credible, the ALJ must engage in a two-step 6 analysis. 7 2007). 8 presented objective medical evidence of an underlying impairment 9 which could reasonably be expected to produce the pain or other To determine whether a claimant s subjective Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. First, the ALJ must determine whether the claimant has 10 symptoms alleged. 11 F.2d 341, 344 (9th Cir. 1991)). 12 first test, and there is no evidence of malingering, the ALJ can 13 reject the claimant s testimony about the severity of her symptoms 14 only by offering specific, clear and convincing reasons for doing so. 15 Id. (quoting Smolen, 80 F.3d at 1281); see also Parra, 481 F.3d at 16 750; Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). 17 ALJ must specifically identify the testimony found not credible, the 18 ALJ must explain what evidence undermines the testimony, and the 19 evidence on which the ALJ relies must be substantial. 20 F.3d at 750; Tonapetyan, 242 F.3d at 1148 ( The ALJ must give 21 specific, convincing reasons for rejecting the claimant s subjective 22 statements. ); Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 23 1997). 24 Id. at 1036 (quoting Bunnell v. Sullivan, 947 Second, if the claimant meets this An Parra, 481 Plaintiff s contention that the ALJ failed to specify which parts 25 of his testimony were not credible and provide clear and convincing 26 reasons for rejecting them is without merit. 27 expressly specify at the outset of each paragraph which reason applied 28 16 Although the ALJ did not 1 to which impairment and its symptoms, it is clear from the decision to 2 which he is referring. 3 Contrary to Plaintiff s argument, a review of the record 4 indicates that the ALJ provided clear and convincing reasons under the 5 Ninth Circuit standard. 6 credibility evaluation, including a plaintiff s reputation for 7 truthfulness and inconsistencies between a plaintiff s testimony and 8 conduct. 9 2008); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). 10 First, the ALJ noted that the objective medical evidence did not 11 support Plaintiff s alleged symptoms. 12 objective medicine cannot be the sole basis for rejecting a 13 plaintiff s credibility, it is a factor that the ALJ can consider in 14 his credibility analysis. 15 to the lack of objective medical evidence, the ALJ noted additional 16 reasons for finding Plaintiff less than credible. 17 noted that the level of care for Plaintiff s seizures was inconsistent 18 with Plaintiff s complaints. 19 seven to eight seizures a month, where he would foam at the mouth, 20 urinate on himself, have spasms, stiffen up, and become nauseous and 21 lightheaded. 22 sort of emergency treatment. 23 he made only about fourteen visits to his doctor over a four-year 24 period and these visits were not directly seizure-related. 25 231-48.] 26 paperwork filled out. 27 (stating that the ALJ is permitted to consider lack of treatment in 28 his credibility determination ). An ALJ may rely on ordinary techniques of See Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. [AR 44-46.] [AR 31.] Although the lack of Burch, 400 F.3d at 681. [AR 33.] Here, in addition First, the ALJ Plaintiff alleged that he had Yet, Plaintiff never sought treatment any [AR 33.] His medical records show that [AR 33, Rather, Plaintiff primarily visited Dr. Kay to have [AR 231-48.] See Burch, 400 F.3d at 681 Second, contrary to Plaintiff s 17 1 contention that he takes his medication as prescribed, the record 2 shows that Plaintiff is not always fully compliant. 3 30.] 4 (finding that plaintiff's failure to comply with certain aspects of 5 her treatment plan was a clear and convincing reason to reject her 6 testimony); Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (noting 7 that the failure to follow a prescribed treatment plan without good 8 reason can cast doubt on credibility). 9 that if Plaintiff s symptoms were as alleged, both he would have [AR 33, 45, 228- See Montalvo v. Astrue, 237 Fed. Appx. 259, 262 (9th Cir. 2007) The ALJ reasonably concluded 10 required more aggressive treatment and been more compliant with his 11 medication. 12 treatment is a clear and convincing reason for finding a plaintiff not 13 credible). 14 See Parra, 481 F.3d at 751 (noting that conservative Accordingly, this issue is without merit. 15 V. ORDERS 16 Accordingly, IT IS ORDERED that: 17 1. The decision of the Commissioner is AFFIRMED. 18 2. This action is DISMISSED WITH PREJUDICE. 19 3. The Clerk of the Court shall serve this Decision and Order 20 and the Judgment herein on all parties or counsel. 21 22 23 24 DATED: October 4, 2010 ______________________________ CARLA M. WOEHRLE United States Magistrate Judge 25 26 27 28 18
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