Armando Alvarado v. Carolyn W Colvin, No. 2:2013cv06170 - Document 21 (C.D. Cal. 2014)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Sheri Pym: (see document image for further details). IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits, and dismissing the complaint with prejudice. (ad)
Download PDF
<![CDATA[
Armando Alvarado v. Carolyn W Colvin Doc. 21 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ARMANDO ALVARADO, 12 13 14 Plaintiff, v. CAROLYN W. COLVIN, Acting 15 Commissioner of Social Security Administration, 16 Defendant. 17 18 ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 13-6170-SP MEMORANDUM OPINION AND ORDER 19 I. 20 INTRODUCTION 21 On September 3, 2013, plaintiff Armando Alvarado filed a complaint 22 against the Commissioner of the Social Security Administration 23 (“Commissioner”), seeking a review of a denial of supplemental security income 24 (“SSI”). Both plaintiff and defendant have consented to proceed for all purposes 25 before the assigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). The court 26 deems the matter suitable for adjudication without oral argument. 27 Plaintiff presents one issue for decision, whether the Administrative Law 28 1 Dockets.Justia.com 1 Judge (“ALJ”) properly discounted his credibility. Memorandum in Support of 2 Complaint (“P. Mem.”) at 3-13; Memorandum in Support of Defendant’s Answer 3 (“D. Mem.”) at 1-10. 4 Having carefully studied the parties’ moving papers, the Administrative 5 Record (“AR”), and the decision of the ALJ, the court concludes that, as detailed 6 herein, the ALJ provided clear and convincing reasons supported by substantial 7 evidence for discounting plaintiff’s credibility. Consequently, this court affirms 8 the decision of the Commissioner denying benefits. 9 II. 10 FACTUAL AND PROCEDURAL BACKGROUND 11 Plaintiff, who was forty-four years old on August 1, 2006, his alleged onset 12 of disability date, has an eleventh grade education. AR at 51, 164. Plaintiff has 13 past relevant work as a roofer/helper. Id. at 76. 14 On April 19, 2010, plaintiff protectively filed an application for SSI due to 15 high blood pressure and numbness in the left foot. Id. at 159, 164. The 16 Commissioner denied plaintiff’s application initially and upon reconsideration, 17 after which he filed a request for a hearing. Id. at 84-87, 92-96, 101-02. 18 On October 5, 2011, plaintiff, represented by counsel, appeared and testified 19 at a hearing before the ALJ. Id. at 48-78. A vocational expert also testified. Id. at 20 74-77. On November 8, 2011, the ALJ denied plaintiff’s claim for benefits. Id. at 21 35-43. 22 Applying the well-known five-step sequential evaluation process, the ALJ 23 found, at step one, that plaintiff had not engaged in substantial gainful activity 24 since April 19, 2010, the application date. Id. at 37. 25 At step two, the ALJ found that plaintiff suffered from the following severe 26 combination of impairments: diabetes mellitus; an asymptomatic left 27 hydrocele/varicocele; an adjustment disorder; and history of cocaine use until 28 2 1 three years ago and alcohol use until two years ago, both in alleged sustained 2 remission. Id. 3 At step three, the ALJ found that plaintiff does not have an impairment or 4 combination of impairments that meets or medically equals one of the listed 5 impairments set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 39. The ALJ then assessed plaintiff’s residual functional capacity (“RFC”),1 and 6 7 determined that he had the RFC to perform light work as defined in 20 C.F.R. 8 § 416.967(b) except with occasional postural activities.2 Id. 9 The ALJ found, at step four, that plaintiff was incapable of performing his 10 past relevant work as a roofer. Id. at 41. 11 At step five, the ALJ found that there were jobs that existed in significant 12 numbers in the national economy that plaintiff could perform, including laundry 13 folder, ticket clerk, and nuts and bolts assembler. Id. at 42. Consequently, the 14 ALJ concluded that plaintiff did not suffer from a disability as defined by the 15 Social Security Act. Id. at 43. 16 Plaintiff filed a timely request for review of the decision, which the Appeals 17 Council denied. Id. at 1-3. The ALJ’s decision stands as the final decision of the 18 Commissioner. 19 20 21 22 1 Residual functional capacity is what a claimant can do despite existing 23 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 24 1155-56 n.5-7 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ 25 assesses the claimant’s residual functional capacity.” Massachi v. Astrue, 486 26 F.3d 1149, 1151 n.2 (9th Cir. 2007). 27 2 “Light work involves lifting no more than 20 pounds at a time with frequent 28 lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. § 416.967(b). 3 1 III. 2 STANDARD OF REVIEW 3 This court is empowered to review decisions by the Commissioner to deny 4 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 5 Administration must be upheld if they are free of legal error and supported by 6 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 7 (as amended). But if the court determines that the ALJ’s findings are based on 8 legal error or are not supported by substantial evidence in the record, the court 9 may reject the findings and set aside the decision to deny benefits. Aukland v. 10 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 11 1144, 1147 (9th Cir. 2001). 12 “Substantial evidence is more than a mere scintilla, but less than a 13 preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such 14 “relevant evidence which a reasonable person might accept as adequate to support 15 a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 16 F.3d at 459. To determine whether substantial evidence supports the ALJ’s 17 finding, the reviewing court must review the administrative record as a whole, 18 “weighing both the evidence that supports and the evidence that detracts from the 19 ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be 20 affirmed simply by isolating a specific quantum of supporting evidence.’” 21 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 22 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 23 the ALJ’s decision, the reviewing court “‘may not substitute its judgment for that 24 of the ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 25 1992)). 26 27 28 4 1 IV. 2 DISCUSSION 3 The ALJ Properly Considered Plaintiff’s Credibility 4 Plaintiff argues that the ALJ failed to conduct a proper credibility analysis 5 and only provided boilerplate reasons for finding him less credible. P. Mem. at 36 13. Plaintiff also argues, however, that it appears the ALJ rejected his testimony 7 on bases including that it was not supported by objective medical evidence and he 8 made inconsistent statements, but that none of the reasons was clear and 9 convincing. Id. at 6-10. 10 An ALJ must make specific credibility findings, supported by the record. 11 Social Security Ruling 96-7p.3 To determine whether testimony concerning 12 symptoms is credible, an ALJ engages in a two-step analysis. Lingenfelter v. 13 Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, an ALJ must determine 14 whether a claimant produced objective medical evidence of an underlying 15 impairment “‘which could reasonably be expected to produce the pain or other 16 symptoms alleged.’” Id. at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 17 (9th Cir. 1991) (en banc)). Second, if there is no evidence of malingering, an 18 “ALJ can reject the claimant’s testimony about the severity of her symptoms only 19 by offering specific, clear and convincing reasons for doing so.” Smolen v. 20 Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Benton v. Barnhart, 331 F.3d 1030, 21 1040 (9th Cir. 2003). An ALJ may consider several factors in weighing a 22 claimant’s credibility, including: (1) ordinary techniques of credibility evaluation 23 24 25 26 27 28 3 “The Commissioner issues Social Security Rulings to clarify the Act’s implementing regulations and the agency’s policies. SSRs are binding on all components of the SSA. SSRs do not have the force of law. However, because they represent the Commissioner’s interpretation of the agency’s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations.” Holohan v. Massanari, 246 F.3d 1195, 1203 n.1 (9th Cir. 2001) (internal citations omitted). 5 1 such as a claimant’s reputation for lying; (2) the failure to seek treatment or follow 2 a prescribed course of treatment; and (3) a claimant’s daily activities. Tommasetti 3 v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); Bunnell, 947 F.2d at 346-47. 4 At the first step, the ALJ here found that plaintiff’s medically determinable 5 impairments could reasonably be expected to cause the symptoms alleged. AR at 6 40. At the second step, because the ALJ did not find any evidence of malingering, 7 the ALJ must provide clear and convincing reasons for finding plaintiff less 8 credible. Here, the ALJ discounted plaintiff’s credibility because: (1) plaintiff 9 made inconsistent statements concerning his alcohol and drug use; (2) plaintiff 10 received conservative treatment; and (3) his alleged symptoms were inconsistent 11 with the objective medical evidence. Id. 12 First, the ALJ noted that plaintiff made inconsistent statements concerning 13 when he stopped using alcohol and drugs. AR at 40; see Thomas v. Barnhart, 278 14 F.3d 947, 959 (9th Cir. 2002) (plaintiff’s conflicting statements about her drug and 15 alcohol usage were a clear and convincing reason for discounting plaintiff’s 16 credibility). At his October 2011 hearing, plaintiff implied that he stopped using 17 drugs about three years prior, and testified that he stopped drinking about nine 18 months prior around January 2011. See AR at 54, 67. 19 Plaintiff’s testimony as to when he quit drinking was not in fact inconsistent 20 with other statements in the record about his alcohol usage. In December 2010, 21 plaintiff told the consultative psychiatrist that he was drinking a six-pack of beer 22 every three days. See id. at 257. And in May 2011, plaintiff told Los Angeles 23 County – USC Medical Center staff that he had been a recovering alcoholic for 24 three months. Id. at 316. Both statements are consistent with his testimony. The 25 alleged inconsistency may have arisen from plaintiff’s testimony that he was 26 drinking two years ago when he was arrested for a DUI. Id. at 53. The ALJ 27 apparently interpreted plaintiff’s testimony as being that he stopped his alcohol 28 6 1 usage then, but plaintiff never testified that he stopped at that time. Instead, 2 plaintiff answered “yes” to the ALJ’s question of whether plaintiff was drinking 3 two years prior.4 4 Plaintiff’s drug usage testimony was more inconsistent. In September 2009 5 plaintiff reportedly told his physician that he quit using cocaine two weeks prior. 6 See id. at 248. But at the October 2011 hearing, when asked if he had been doing 7 drugs, plaintiff responded, “Yes. About three years ago.” Id. at 54. Although 8 plaintiff did not expressly testify that he stopped using drugs three years prior, he 9 implied as much. As such, while the purported inconsistent statements about 10 when plaintiff stopped drinking alcohol were not a clear and convincing reason for 11 finding him less credible, the ALJ had some basis to find plaintiff’s drug use 12 testimony inconsistent. 13 Second, the ALJ found that plaintiff received only conservative treatment 14 for his hydrocele and diabetes. See id. at 40; Parra v. Astrue, 481 F.3d 742, 751 15 (9th Cir. 2007) (conservative treatment is a basis for discounting a plaintiff’s 16 credibility). With regard to the hydrocele, plaintiff testified that he was going to 17 have surgery. AR at 59. But none of the medical records document a 18 recommendation for surgery. To the contrary, his physicians prescribed pain 19 medication to treat the hydrocele, noting that plaintiff’s hydrocele was very small 20 and it was “likely that conservative measures [would] be successful.”5 See, e.g., 21 id. at 332-34. 22 As for his diabetes, plaintiff told Dr. Homayoun Saeid, a consultative 23 24 4 Thus, the ALJ erred at step two when he found that plaintiff stopped drinking alcohol two years prior as opposed to nine months prior, but the error was 26 harmless. 25 27 5 The physicians also noted that plaintiff was not adhering to the treatment 28 plan and that the pain was limited. AR at 332. 7 1 examiner, that he had been diagnosed with diabetes before his incarceration, 2 received diabetes medication in prison, and had been controlling his diabetes with 3 his diet since his release. Id. at 223. At the hearing, plaintiff testified that he was 4 not taking medication for diabetes, and as far as he knew he was not diabetic. Id. 5 at 59. Plaintiff’s treatment notes reflect that plaintiff was not treated with 6 medication, and indeed do not even reference diabetes. See, e.g., id. at 245-48, 7 287. Thus, not only is there substantial evidence to support the ALJ’s finding that 8 plaintiff only received conservative treatment, but there is also substantial 9 evidence to support a finding that plaintiff made inconsistent statements about his 10 impairments and treatment plans. 11 Finally, although not expressly stated, the ALJ noted that plaintiff’s alleged 12 symptoms were not supported by the objective medical evidence. See id. at 40; 13 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (lack of corroborative 14 objective medicine may be one factor in evaluating credibility). Specifically, the 15 ALJ found that the infrequency of treatment and minimal findings did not support 16 the limitations plaintiffs alleged. See AR at 40. During the five years between the 17 alleged onset date and the hearing, plaintiff only sought primary care treatment 18 seven times, of which only twice was for leg pain. See id. at 244-48, 282-83. The 19 treatment notes include neuropathy or alcoholism neuropathy as a diagnostic 20 impression, but contain no objective findings to support the diagnostic impression. 21 See id. Indeed, most of the treatment notes are bereft of any objective or 22 subjective findings. See id. at 244-46, 283. An August 2010 radiology report 23 showed no abnormality in the left calcaneus. Id. at 229. Further, the consultative 24 examiner found only some tenderness on the plantar aspect of the left heel with 25 associated mildly antalgic gait and some tenderness in the lumbosacral spine but 26 with normal range of motion and straight leg raising test. See id. at 227. As for 27 the hydrocele, it was very small and the pain was mostly limited to straining and 28 8 1 his work as a roofer. See id. at 332. As such, there is substantial evidence of a 2 lack of objective medical support for plaintiff’s alleged limitations relating to his 3 neuropathy. 4 In sum, the ALJ provided at least two clear and convincing reasons 5 supported by substantial evidence for finding plaintiff less than credible. As such, 6 the ALJ did not err in discounting plaintiff’s testimony concerning his symptoms. 7 V. 8 CONCLUSION 9 IT IS THEREFORE ORDERED that Judgment shall be entered 10 AFFIRMING the decision of the Commissioner denying benefits, and dismissing 11 the complaint with prejudice. 12 13 DATED: December 29, 2014 14 15 SHERI PYM United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 9
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
