David P Ramos v. Michael J Astrue, No. 5:2007cv00849 - Document 26 (C.D. Cal. 2010)
Court Description: MEMORANDUM OF DECISION by Magistrate Judge Andrew J. Wistrich. The Commissioner's decision is supported by substantial evidence and reflects application of the proper legal standards. Accordingly, defendant's decision is affirmed. IT IS SO ORDERED. (mz)
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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 23 24 25 26 27 28 EASTERN DIVISION DAVID RAMOS, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the Social ) Security Administration, ) ) Defendant. ) ____________________________________ ) Case No. EDCV07-00849 AJW MEMORANDUM OF DECISION Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the Social Security Administration (the Commissioner ), denying plaintiff s applications for disability insurance benefits and supplemental security income benefits. The parties have filed a Joint Stipulation ( JS ) setting forth their contentions with respect to each disputed issue. Administrative Proceedings The parties are familiar with the procedural facts, which are summarized in the Joint Stipulation. [See JS 2]. In a September 9, 2008 written hearing decision that constitutes the Commissioner s final decision in this case, an administrative law judge (the ALJ ) found that plaintiff had severe impairments 1 consisting of inflammatory, probably psoriatic, arthritis1, level III obesity, lumbar spine disorder, cervical 2 spine disorder, and hypertension. [Administrative Record ( AR ) 197]. The ALJ found that plaintiff retained 3 the residual functional capacity ( RFC ) for a restricted range of light work. [AR 199]. The ALJ concluded 4 that plaintiff was not disabled because his RFC did not preclude him from performing work available in 5 significant numbers in the national economy. [AR 201-202]. 6 Standard of Review 7 The Commissioner s denial of benefits should be disturbed only if it is not supported by substantial 8 evidence or is based on legal error. Stout v. Comm r Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 9 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). Substantial evidence means more than 10 a mere scintilla, but less than a preponderance. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 11 2005). It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 12 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is 13 required to review the record as a whole and to consider evidence detracting from the decision as well as 14 evidence supporting the decision. Robbins v. Soc. Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); 15 Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). Where the evidence is susceptible to more than 16 one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld. 17 Thomas, 278 F.3d at 954 (citing Morgan v. Comm r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)). 18 Discussion 19 Obesity 20 Plaintiff contends that the ALJ did not properly analyze, or make findings with respect to, the effects 21 of plaintiff s obesity. [JS 3-10]. 22 Plaintiff was 24 years old when the ALJ issued his decision. [See AR 52]. He is five feet, seven 23 inches tall, and his weight as reported in the record ranged from 220 pounds to 262 pounds. [AR 55, 415, 24 437, 441, 449, 452]. 25 26 27 28 1 Psoriatic arthritis is a chronic disease characterized by inflammation of the skin and joints. [See JS 3 (quoting http:/www.medicinenet.com/psoriatic_arthritis/article.htm)]. More specifically, psoriatic arthritis is the concurrence of psoriasis and polyarthritis, resembling rheumatoid arthritis but thought to be a specific disease entity, seronegative for rheumatoid factor and often involving the digits. Stedman s Medical Dictionary psoriatic arthritis (27th ed. 2000). 2 1 Contrary to plaintiff s contention that the ALJ did not consider plaintiff s obesity at step two of the 2 sequential evaluation procedure [JS 5], the ALJ found that plaintiff s obesity was a severe impairment. [AR 3 197]. The ALJ considered the combined effect of plaintiff s obesity and his other severe impairments on 4 his ability to work. [See AR 197-201]. 5 Plaintiff relies on Social Security Ruling 02-01, which states that [w]hen establishing the existence 6 of obesity, we will generally rely on the judgment of a physician who has examined the claimant and 7 reported his or her appearance and build, as well as height and weight. [JS 2]. Plaintiff also argues that 8 [o]besity can cause limitation of function. [JS 6]. What plaintiff has not done is point to any evidence in 9 the record suggesting that plaintiff s obesity caused a limitation in function greater than that comprehended 10 by the ALJ s RFC finding. 11 The ALJ concluded that there was no dispute among the treating, examining, and reviewing medical 12 sources regarding the basic severity of [plaintiff s] combination of physical impairments. [AR 197]. 13 Plaintiff s combination of physical impairments, of course, included his severe obesity. 14 example, Dr. Jamil, one of the two consultative internists who examined plaintiff at the Commissioner s 15 request, opined in February 2005 that plaintiff could perform a restricted range of light work despite 16 moderate obesity. [AR 146]. The second consultative internist, Dr. Lin, also noted obesity as a 17 diagnosis, but he concluded that plaintiff s impairments did not preclude him from performing light work. 18 [AR 418]. Treatment reports from Kaiser Permanente do not suggest that plaintiff s obesity or other 19 impairments warranted a more restrictive functional capacity than that found by the ALJ. Plaintiff reported 20 symptoms of joint pain, stiffness, and tenderness of varying intensity sometimes mild, sometimes 21 severe related to his diagnosis of psoriatic arthritis. At times he exhibited swelling and limited range of 22 spinal motion, but at other times those findings were normal. Plaintiff s joint symptoms were consistently 23 described as responding well to Remicade2 infusions every six to eight weeks and other prescribed F o r 24 25 26 27 28 2 Remicade is a biologic treatment used to treat inflammatory disorders involving the immune system. Remicade targets specific proteins in the body's immune system to help control the development of inflammation, significantly reducing painful symptoms in diseases such as plaque psoriasis, rheumatoid arthritis, psoriatic arthritis, adult Crohn s disease, pediatric Crohn s disease, ulcerative colitis, and ankylosing spondylitis. See Understanding Remicade at http://www.remicade.com/remicade/global/understanding/understanding.html (last visited Feb. 25, 2010). 3 1 medication. Stretching exercises also helped his stiffness. Plaintiff s treating physicians at Kaiser did not 2 document particular concerns about plaintiff s obesity, nor do their treatment notes reflect that he was 3 medically advised to lose weight. [See AR 354-393, 429-464]. 4 There is no evidence of obesity-related functional limitations that were overlooked by the ALJ. The 5 mere fact that plaintiff was obese or was diagnosed with obesity, without more, says little or nothing about 6 the functionally limiting effects of that condition. See Sample v. Schweiker, 694 F.2d 639, 642-643 (9th 7 Cir. 1982) (noting that the existence of a diagnosed emotional disorder is not per se disabling, and stating 8 that there must be proof of the impairment's disabling severity ); Hinkle v. Apfel, 132 F.3d 1349, 1352 9 (10th Cir. 1997) (stating that a claimant must show more than the mere presence of a condition or ailment 10 at step two) (citing Bowen v. Yuckert, 482 U.S. 137, 153 (1987)). 11 Plaintiff s reliance on Celaya v. Halter, 332 F.3d 1177 (2003) is misplaced. There, the Ninth Circuit 12 held that the ALJ had a responsibility to consider [the] interactive effect of the claimant s obesity upon 13 her other impairments, and its effect on her ability to work and general health, even though her obesity, 14 standing alone, was not severe. Celaya, 332 F.2d at 1182. The Ninth Circuit explained that the ALJ should 15 have included obesity in a multiple impairment analysis for three reasons. First, 16 First, [obesity] was raised implicitly in [the claimant's] report of symptoms. Second, it was 17 clear from the record that [her] obesity was at least close to the listing criterion, and was a 18 condition that could exacerbate her reported illnesses. Third, in light of [the claimant's] pro 19 se status, the ALJ's observation of [the claimant] and the information on the record should 20 have alerted him to the need to develop the record in respect to her obesity. 21 Celaya, 332 F.3d at 1183. 22 Celaya is distinguishable. First, the ALJ did not ignore plaintiff s obesity; rather, he found that it 23 was a severe impairment and considered its effects. Second, even at his heaviest, plaintiff s weight did not 24 meet or equal the former obesity listing level (which called for a weight of 294 pounds for a 5'7" tall man). 25 See 20 C.F.R. Pt. 404, Subpt. P, App. 1 (1998). Third, in Celaya, the ALJ found that the claimant had 26 independently severe diabetes and hypertension, both serious conditions whose association with obesity is 27 well-recognized. See SSR 00-3p, 2000 WL 33952015, at *3 (stating that obesity increases the risk of 28 developing diabetes and hypertension). In this case, however, plaintiff s joint problems were associated with 4 1 psoriatic arthritis, without evidence in the record of a cause-and-effect relationship to obesity. Finally, 2 plaintiff was represented by counsel during the administrative hearing, while the plaintiff in Celaya was 3 not. 4 For all of these reasons, the ALJ did not commit legal error in his evaluation of plaintiff s obesity 5 and its functional effects. See Burch, 400 F.3d at 684 (holding that the ALJ adequately considered [the 6 claimant s] obesity in his RFC determination where the claimant has not set forth, and there is no 7 evidence in the record, of any functional limitations as a result of h[is] obesity that the ALJ failed to 8 consider ). Credibility finding 9 Plaintiff contends that the ALJ did not discuss plaintiff s hearing testimony and erred by failing to 10 provide any reasons for rejecting plaintiff s testimony about his subjective symptoms and limitations. [JS 11 11-17]. 12 Once a disability claimant produces evidence of an underlying physical or mental impairment that 13 is reasonably likely to be the source of his or her subjective symptoms, the adjudicator is required to 14 consider all subjective testimony as to the severity of the symptoms. Moisa v. Barnhart, 367 F.3d 882, 885 15 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc); see also 20 C.F.R. §§ 16 404.1529(a), 416.929(a) (explaining how pain and other symptoms are evaluated). Although the ALJ may 17 then disregard the subjective testimony he considers not credible, he must provide specific, convincing 18 reasons for doing so. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001); see also Moisa, 367 F.3d 19 at 885 (stating that in the absence of evidence of malingering, an ALJ may not dismiss the subjective 20 testimony of claimant without providing "clear and convincing reasons"). The ALJ's credibility findings 21 "must be sufficiently specific to allow a reviewing court to conclude the ALJ rejected the claimant's 22 testimony on permissible grounds and did not arbitrarily discredit the claimant's testimony." Moisa, 367 23 F.3d at 885; see Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) (enumerating factors that 24 bear on the credibility of subjective complaints); Fair v. Bowen, 885 F.2d 597, 604 n.5 (9th Cir. 25 1989)(same). If the ALJ's assessment of the claimant's testimony is reasonable and is supported by 26 substantial evidence, it is not the court's role to "second-guess" it. Rollins v. Massanari, 261 F.3d 853, 857 27 (9th Cir. 2001). 28 The ALJ discussed plaintiff s subjective complaints, including his hearing testimony, and articulated 5 1 specific, clear, and convincing reasons based on substantial evidence for rejecting them. Plaintiff testified 2 that he experienced side effects from his medications, including drowsiness, grogginess, and stomach 3 issues, in particular loose stools. [AR 486]. The ALJ noted that plaintiff was not drowsy, groggy, or 4 unable to concentrate during the hearing, and that he answered questions appropriately and without delay. 5 [AR 200]. See Verduzco v. Apfel, 188 F.3d 1087, 1088 (9th Cir. 1999)(holding that the inclusion of the 6 ALJ's personal observations did not render the decision improper, and that the ALJ permissibly remarked 7 upon discrepancies between what he observed during the hearing and plaintiff s reported symptoms). The 8 ALJ pointed out that plaintiff testified that he complained about medication side effects to his treating 9 physicians at Kaiser Permanente [AR 200, 294], but that his doctors notes do not reflect those complaints 10 or concerns about side effects from his medications. [See AR 163-177, 352-407, 429-474]. The ALJ also 11 permissibly discounted plaintiff s complaints of side effects affecting his mental functioning because 12 plaintiff s treating doctors did not indicate that he had any significant mental functional restrictions, and 13 because plaintiff exhibited only mild abnormalities during consultative psychiatric examinations in 2005 14 and 2007. [AR 149-154, 200, 324-331]. See Burch, 400 F.3d at 681 ( Although lack of medical evidence 15 cannot form the sole basis for discounting pain testimony, it is a factor that the ALJ can consider in his 16 credibility analysis. ) 17 Regarding plaintiff s subjective testimony of generalized joint pain, lower back pain, and back 18 spasms [AR 485-486], the ALJ noted that the objective evidence, treatment reports, and consultative internal 19 medicine reports did not corroborate a disabling level of pain or symptoms. Furthermore, both consultative 20 examiners opined that plaintiff was not disabled, and there was no treating source opinion. [See AR 142- 21 148, 200, 413-428]. See Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 1996) (holding that the ALJ properly 22 rejected the claimant's pain testimony based, in part, on an examining physician's opinion that the claimant 23 was not disabled). 24 The ALJ also discounted plaintiff s overall credibility because there were inconsistencies between 25 his hearing testimony about the severity of his condition and statements he made to his doctors, and because 26 plaintiff made inconsistent statements about his education. See Tonapetyan, 242 F.3d at 1148 (stating that 27 the ALJ can use ordinary techniques of credibility evaluation and may rely on inconsistent statements in 28 testimony)(citing Fair, 885 F.2d at 604 n.5); Matthews v. Shalala, 10 F.3d 678, 679-680 (9th Cir. 1993) 6 1 (holding that the ALJ properly considered the claimant's inconsistent statements as part of his credibility 2 analysis). 3 4 The ALJ provided legally sufficient reasons, based on substantial evidence in the record, to support his negative credibility evaluation. 5 Lay witness testimony 6 Plaintiff contends that the ALJ erred in rejecting a third party function report completed by plaintiff s 7 mother, Ms. Rubio, that was consistent with plaintiff s own subjective testimony and complaints. [JS 17-23; 8 see AR 74-82, 303-309]. 9 The ALJ considered the statements made by Ms. Rubio in her January 2005 report. [AR 201]. He 10 noted that Ms. Rubio said that plaintiff had problems staying awake, needed help to put his socks on, and 11 could not sit or stand for long periods, but also that he could vacuum, clean, do some laundry, water plants, 12 and occasionally shop. [AR 201]. She also said that plaintiff watched television, read, wrote, listened to 13 music, played video games, and talked on the phone. [AR 78]. The ALJ did not specifically comment on 14 a later report completed by Ms. Rubio in February 2007 describing activities and limitations similar to those 15 in her earlier report. [See AR 303-309]. 16 While an ALJ must take into account lay witness testimony about a claimant's symptoms, the ALJ 17 may discount that testimony by providing reasons that are germane to each witness. Greger v. Barnhart, 18 464 F.3d 968, 972 (9th Cir. 2006)(quoting Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir.1993)). Germane 19 reasons for rejecting a lay witness s testimony include inconsistencies between that testimony and the 20 medical evidence, inconsistencies between that testimony and the claimant s presentation to treating 21 physicians during the period at issue, and the claimant s failure to participate in prescribed treatment. See 22 Greger, 464 F.3d at 971; Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005); Lewis v. Apfel, 236 F.3d 23 503, 511 (9th Cir. 2001). 24 The ALJ permissibly discounted Ms. Rubio s statements about plaintiff s symptoms. The ALJ 25 remarked that plaintiff s contemporaneous treating source reports did not reflect complaints about, or 26 observations of, the severe symptoms described by plaintiff s mother. The ALJ permissibly inferred that 27 if plaintiff had such severe symptoms, their presence would have been documented in plaintiff s treatment 28 reports. In addition, the ALJ noted that the objective medical findings and other medical evidence failed 7 1 to corroborate the alleged severity of the symptoms and limitations Ms. Rubio described. 2 3 The ALJ also disbelieved Ms. Rubio because she supported plaintiff and therefore had an obvious 4 financial and personal motivation to help him win benefits. [AR 201]. Standing alone, a claimant's financial 5 motivation for obtaining benefits is not a valid reason for discrediting the testimony of the claimant or 6 family members. See Ratto v. Sec y, Dept. of Health & Human Servs., 839 F.Supp. 1415, 1428-1429 (D. 7 Or. 1993) ( By definition, every claimant who applies for [disability] benefits does so with the 8 knowledge--and intent--of pecuniary gain. That is the very purpose of applying for [disability] benefits. . 9 . . If the desire or expectation of obtaining benefits were by itself sufficient to discredit a claimant's 10 testimony, then no claimant (or their spouse, or friends, or family) would ever be found credible. ). On the 11 other hand, an ALJ is not required to ignore evidence suggesting that a claimant is seeking benefits for 12 financial reasons independent of any allegedly disabling impairment. See Gaddis v. Chater, 76 F.3d 893, 13 896 (8th Cir. 1996) (holding that there was a strong element of secondary gain in this case justifying the 14 ALJ's negative credibility finding where the claimant sued his employer only after private benefits 15 terminated, said he planned to work only until his lawsuit settled, and told a doctor he could get a minimum 16 wage job at any time). 17 Plaintiff has never worked, and he lived with his mother without paying rent. As Ms. Rubio noted, 18 plaintiff had no income and no money. [AR 67, 74, 77, 306, 480]. In a disability report, plaintiff said that 19 his parents paid for his Kaiser Permanente healthcare coverage after he was initially denied SSI benefits and 20 was not automatically eligible for medicare. [AR 96]. Standing alone, those would not be sufficient reasons 21 for rejecting Ms. Rubio s statements. However, the ALJ articulated other germane reasons for rejecting Ms. 22 Rubio s portrayal of the severity of plaintiff s symptoms and functional restrictions. The record as a whole 23 supports the ALJ s evaluation of the alleged severity of plaintiff s subjective symptoms. 24 Side effects from medications 25 Plaintiff argues that the ALJ improperly disregarded plaintiff s statements that he suffers the side 26 27 28 effects of stomach pain, grogginess, and drowsiness from medications. [See JS 23-27]. In evaluating a claimant s subjective symptoms, the ALJ must consider, among other things, the type, dosage, effectiveness, and adverse side effects of any pain medication. 8 See 20 C.F.R. §§ 1 404.1529(c)(3), 416.929(c)(3); SSR 96-7p, 1996 WL 374186, at *3. As explained above, the ALJ s 2 credibility analysis was legally sufficient, including his evaluation of plaintiff s reported medication side 3 effects. Accordingly, there is no merit to plaintiff s redundant argument that the ALJ improperly rejected 4 plaintiff s complaints of adverse effects from his medications. 5 6 Conclusion For the reasons stated above, the Commissioner s decision is supported by substantial evidence and 7 reflects application of the proper legal standards. Accordingly, defendant s decision is affirmed. 8 IT IS SO ORDERED. 9 February 28, 2010 10 11 _____________________________ ANDREW J. WISTRICH United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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