Christian Holsombach v. Michael J Astrue, No. 5:2009cv00392 - Document 16 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)
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Christian Holsombach v. Michael J Astrue Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 CHRISTIAN HOLSOMBACH, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. EDCV 09-00392-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on March 3, 2009, seeking review of the 19 denial 20 plaintiff’s applications for supplemental security income (“SSI”) and 21 disability insurance benefits (“DIB”). 22 consented to proceed before the undersigned Magistrate Judge pursuant to 23 28 U.S.C. § 636(c). by the Social Security Commissioner (“Commissioner”) of On March 30, 2009, the parties 24 25 The parties filed a Joint Stipulation on October 7, 2009, in which: 26 plaintiff seeks an order reversing the Commissioner’s decision and 27 awarding 28 Commissioner for a new administrative hearing; and defendant asks that benefits or, alternatively, remanding the case to the 1 Dockets.Justia.com 1 the Commissioner’s decision be affirmed. The Court has taken the 2 parties’ Joint Stipulation (“Joint Stip.”) under submission without oral 3 argument. 4 5 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 6 7 Plaintiff filed his applications for SSI and DIB on August 3, 2005, 8 alleging an inability to work since November 25, 2004, due to back 9 injury, bone spurs in his back, degenerative disc disease, right knee 10 problems, and diabetes. (Administrative Record (“A.R.”) 12, 59, 82-95.) 11 His past relevant work (“PRW”) includes work as a truck driver, ranch 12 hand, business owner, security officer, and fast food cook and driver, 13 as well as serving in the infantry of the United States Army. 14 137.) (A.R. 15 16 Plaintiff’s applications were denied initially on November 14, 17 2005, and upon reconsideration on January 13, 2006, and March 20, 2006. 18 (A.R. 42-43, 53-57, 59-63.) 19 On July 2, 2008, plaintiff, who was represented by counsel, testified at 20 a hearing before Administrative Law Judge Thomas J. Gaye (“ALJ”). (A.R. 21 534-52.) 22 that plaintiff is not disabled. 23 Appeals Counsel denied plaintiff’s request for review of the ALJ’s 24 decision. (A.R. 3-5.) Plaintiff requested a hearing. (A.R. 52.) On August 27, 2008, the ALJ issued a written decision finding (A.R. 10-18.) On January 23, 2009, the 25 26 SUMMARY OF ADMINISTRATIVE DECISION 27 28 The ALJ found that plaintiff has not engaged in substantial gainful 2 1 activity since November 25, 2004, his alleged disability onset date. 2 (A.R. 12.) 3 The ALJ determined that plaintiff has a combination of severe 4 5 impairments consisting of lumbar degenerative disc disease, 6 osteoarthritis of the knees with history of knee surgeries, cervical 7 strain, diabetes, depressive disorder not otherwise specified, anxiety 8 disorder not otherwise specified, and obesity. 9 concluded that plaintiff does not have an impairment or combination of 10 impairments that meets or medically equals one of the listed impairments 11 in 20 C.F.R. Part 404, Subpart P, Appendix 1. (A.R. 12.) The ALJ (A.R. 13.) 12 13 The ALJ found that plaintiff has the residual functional capacity 14 (“RFC”) to perform light work as defined in 20 CFR §§ 404.1567(b) and 15 416.967(b), with the following limitations: 16 with five minutes of sitting for every 60 minutes of standing; sit for 17 six hours with five minutes of standing for every 60 minutes of sitting; 18 stoop, crouch, and climb on an occasional basis, up to approximately two 19 hours in an eight hour workday; and balance on a frequent basis, from 20 two to six hours in an eight-hour workday, although plaintiff needs to 21 use a cane on the left side due to subjective instability. 22 The ALJ further found that plaintiff: is precluded from operating pedal 23 controls with his right leg, walking on uneven terrain, and climbing 24 ropes, ladders, or scaffolds; and has the mental RFC to perform simple, 25 repetitive tasks. stand/walk for four hours (A.R. 14.) (Id.) 26 27 28 The ALJ determined that plaintiff is unable to perform any of his PRW. (A.R. 16.) The ALJ found that plaintiff: 3 was born on April 26, 1 1973; was 31-years old at the onset of the alleged disability, putting 2 plaintiff in the younger individual, age 18-49 category; possesses at 3 least a high school education; and is able to communicate in English. 4 (Id.) 5 to the determination of disability, because the Medical-Vocational 6 Rules, used as a framework, support a finding that plaintiff is “not 7 disabled.” 8 education, work experience, and RFC, and the testimony of a vocational 9 expert, the ALJ found that there exist jobs in significant numbers in 10 The ALJ found that transferability of job skills is not material (A.R. 16-17.) After considering the plaintiff’s age, the national economy that plaintiff can perform. (A.R. 17.) 11 12 The ALJ concluded that plaintiff has not been under a disability, 13 as defined by the Social Security Act, from November 25, 2004, through 14 August 27, 2008, the date of the ALJ’s decision. (A.R. 18.) 15 16 STANDARD OF REVIEW 17 18 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s 19 decision to determine whether it is free from legal error and supported 20 by substantial evidence in the record as a whole. 21 F.3d 625, 630 (9th Cir. 2007). 22 evidence as a reasonable mind might accept as adequate to support a 23 conclusion.’” 24 a mere scintilla but not necessarily a preponderance.” 25 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). 26 record can constitute substantial evidence, only those “‘reasonably 27 drawn from the record’” will suffice. 28 1063, 1066 (9th Cir. 2006)(citation omitted). Orn v. Astrue, 495 Substantial evidence is “‘such relevant Id. (citation omitted). 4 The “evidence must be more than Connett v. While inferences from the Widmark v. Barnhart, 454 F.3d 1 Although this Court cannot substitute its discretion for that of 2 the Commissioner, the Court nonetheless must review the record as a 3 whole, “weighing both the evidence that supports and the evidence that 4 detracts from the [Commissioner’s] conclusion.” 5 Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 6 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 7 responsible for determining credibility, resolving conflicts in medical 8 testimony, and for resolving ambiguities.” 9 1035, 1039-40 (9th Cir. 1995). Desrosiers v. Sec’y of “The ALJ is Andrews v. Shalala, 53 F.3d “Where the evidence as a whole can 10 support either a grant or a denial, [a federal court] may not substitute 11 [its] judgment for the ALJ’s.” 12 F.3d 1219, 1222 (9th Cir. 2009)(citation and internal punctuation 13 omitted). Bray v. Comm’r of Soc. Sec. Admin., 554 14 15 The Court will uphold the Commissioner’s decision when the evidence 16 is susceptible to more than one rational interpretation. Tommasetti v. 17 Astrue, 553 F.3d 1035, 1038 (9th Cir. 2008); Burch v. Barnhart, 400 F.3d 18 676, 679 (9th Cir. 2005); see also Batson v. Comm’r of Soc. Sec. Admin., 19 359 F.3d 1190, 1193 (9th Cir. 2004)(“if evidence exists to support more 20 than one rational interpretation, we must defer to the Commissioner’s 21 decision”). 22 the ALJ in his decision “and may not affirm the ALJ on a ground upon 23 which he did not rely.” 24 F.3d at 874. 25 it is based on harmless error, which exists only when it is “clear from 26 the record that an ALJ's error was ‘inconsequential to the ultimate 27 nondisability determination.’” 28 880, 885 (9th Cir. 2006)(quoting Stout v. Comm’r, 454 F.3d 1050, 1055-56 However, the Court may review only the reasons stated by Orn, 495 F.3d at 630; see also Connett, 340 The Court will not reverse the Commissioner’s decision if Robbins v. Soc. Sec. Admin., 466 F.3d 5 1 (9th Cir. 2006)); see also Tommasetti, 533 F.3d at 1038; Burch, 400 F.3d 2 at 679. 3 4 DISCUSSION 5 6 Plaintiff alleges the following three issues: (1) whether the ALJ 7 properly considered if plaintiff met or equaled a listing; (2) whether 8 the ALJ properly developed the record; and (3) whether the ALJ properly 9 considered the type, dosage, and side effects of plaintiff’s prescribed 10 medications. (Joint Stip. at 2.) 11 12 13 I. The ALJ Properly Considered Whether Plaintiff Met Or Equaled A Listing. 14 15 An ALJ must evaluate the relevant evidence before concluding that 16 a claimant’s impairments do not meet or equal a listed impairment. 17 Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). 18 finding is insufficient to support a conclusion that a claimant's 19 impairment does not do so.” 20 evaluate favorable evidence relevant to the criteria set forth in the 21 listing, remand may be appropriate to allow the ALJ to engage in a more 22 thorough analysis of the evidence. 23 580, 584 (7th Cir. 2006). Id. “A boilerplate Especially when the ALJ fails to See Ribaudo v. Barnhart, 458 F.3d 24 25 Plaintiff contends that, other than providing a “perfunctory 26 holding,” the ALJ failed to evaluate the relevant evidence before 27 concluding that the plaintiff does not meet or medically equal a 28 listing. (Joint Stip. at 3.) Plaintiff draws particular attention to 6 1 the preamble of Listing 1.00B2, which defines loss of function 2 associated with disorders of the musculoskeletal system and states: 3 4 Regardless of the cause(s) of the musculoskeletal impairment, 5 functional loss for purposes of these listings is defined as 6 the inability to ambulate effectively on a sustained basis for 7 any reason, including pain associated with the underlying 8 musculoskeletal impairment . . . . [¶] Inability to ambulate 9 effectively means an extreme limitation of the ability to 10 walk; i.e., an impairment(s) that interferes very seriously 11 with the individual’s ability to independently initiate, 12 sustain, or complete activities. . . . [¶] 13 ineffective ambulation include, but are not limited to, . . . 14 the inability to walk a block at a reasonable pace on rough or 15 uneven surfaces . . . . [E]xamples of 16 17 20 C.F.R. Part 404, Subpart P, Appendix 1 § 1.00B2a-b. 18 19 20 Plaintiff also relies on Listing 1.02 of the musculoskeletal category of impairments, which states: 21 22 Major 23 Characterized 24 subluxation, 25 instability) and chronic joint pain and stiffness with signs 26 of limitation of motion or other abnormal motion of the 27 affected joint(s), and findings on appropriate medically 28 acceptable imaging of joint space narrowing, bony destruction, dysfunction by of a gross contracture, joint(s) (due anatomical bony 7 or to any cause): deformity (e.g., fibrous ankylosis, 1 or ankylosis of the affected joint(s). With: 2 3 A. Involvement of one major peripheral weight bearing 4 joint (i.e., hip, knee, or ankle), resulting in inability to 5 ambulate effectively, as defined in 1.00B2b. 6 7 20 C.F.R. Part 404, Subpart P, Appendix 1 § 1.02. 8 9 Plaintiff contends that he “meets or medically equals listing 10 1.002b [sic].”1 11 the medical expert, Dr. Joseph Jensen, who stated that plaintiff “does 12 demonstrate some subjective instability, occasional giving way of the 13 knee while walking, and I see where probably the use of a single cane in 14 the opposite hand would be appropriate.” 15 expert also noted that plaintiff does have chronic joint pain and 16 stiffness, as well as some “limitation of motion,” in his right knee. 17 (A.R. 543.) 18 physician who interpreted an MRI of plaintiff’s knee as revealing: mild 19 attrition (Joint Stip. at 5.) Plaintiff relies on testimony from (A.R. 541.)2 The medical Plaintiff also relies on statements by Dr. Carl Jansen, a of the body of the medial meniscus; mild-to-moderate 20 1 21 22 23 24 25 26 27 28 Plaintiff apparently contends that he satisfies Listing 1.00B2b and, thus, meets or equals a listed impairment at step three. Listing 1.00B2b, however, addresses how the Social Security Administration defines “inability to ambulate effectively” as that term is used in the Listings themselves; Listing 1.00B2b does not itself establish a distinct listed impairment that can be met or equaled for purposes of the step three analysis. The listed impairment actually in issue here, which plaintiff must meet or medically equal for step three purposes, is Listing 1.02, which describes major dysfunctions of a joint under the category of musculoskeletal impairments. 2 On further questioning, the medical expert observed that no treating physician had prescribed a cane and the clinical evidence did not indicate internal derangement, but he nonetheless believed a cane would be “indicated” based on plaintiff’s subjective perception of instability. (A.R. 543-44.) 8 1 chondromalacia; a small right knee effusion; and very small Baker’s 2 cyst. 3 which included a limitation that plaintiff “is precluded from . . . 4 walking on uneven terrain.” (A.R. 256.) Plaintiff further relies on the ALJ’s RFC finding, (A.R. 14.) 5 6 Plaintiff’s assertion that the ALJ’s step three analysis was 7 “perfunctory,” and that the ALJ failed to evaluate the evidence at step 8 three, 9 plaintiff’s is misguided. counsel, The made ALJ at expressly the noted hearing, that the contention plaintiff’s of knee 10 osteoarthritis meets Listing 1.02 due to plaintiff’s inability to 11 ambulate effectively secondary to instability, pain, stiffness, and 12 decreased range of motion. (A.R. 13.) The ALJ concluded, however, that 13 “the severity of claimant’s impairments does not meet or medically equal 14 the requirements of any listed impairment based on the objective 15 evidence and claimant’s activities, as discussed below.” 16 drawing that conclusion, the ALJ relied on: 17 testimony that plaintiff’s impairment does not meet or equal a listing; 18 the fact that, while plaintiff may have a subjective belief that he 19 needs to use a cane due to instability, there is no medical evidence of 20 record supporting such a need; his review of the medical evidence of 21 record relating to plaintiff’s back and extremity impairments, which was 22 the same evidence on which the medical expert relied in rendering his 23 opinion; and the evidence regarding plaintiff’s activities. (Id. and at 24 15-16.) (Id.) In the medical expert’s 25 26 The opinion of a non-examining medical expert may constitute 27 substantial evidence, upon which the ALJ may rely, when it is consistent 28 with independent medical evidence of record. 9 See, e.g., Thomas v. 1 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Tonapetyan v. Halter, 242 2 F.3d 1144, 1148 (9th Cir. 2001); see also Saelee v. Chater, 94 F.3d 520, 3 522 4 nonexamining physician can amount to substantial evidence, so long as 5 other evidence in the record supports those findings”). 6 shows that the medical expert considered the medical evidence of record 7 (including the MRI interpretation by Dr. Carl Jansen on which plaintiff 8 now relies). 9 evidence shows that plaintiff: (9th Cir. 1996)(noting that “the findings of a nontreating, The record At the hearing, the medical expert acknowledged that the has experienced degenerative changes in 10 his right knee (as found by Dr. Jansen); has chondromalacia (as found by 11 Dr. Jansen); has a tear of the medial meniscus (as found by Dr. Jansen); 12 has undergone two arthroscopic procedures; experiences chronic joint 13 pain 14 experiences a feeling of instability. 15 expert concluded that this evidence was not sufficient to show that 16 plaintiff meets or equals the musculoskeletal listing. and stiffness, as well as limitation of motion; and subjectively (A.R. 540-43.)3 The medical (A.R. 540.) 17 18 The record plainly shows that the ALJ actually considered the step 19 three issue in the light of the medical evidence of record and the 20 medical expert’s opinion. 21 satisfied. 22 disagreement with the medical expert’s conclusion, on which the ALJ 23 relied. The ALJ concluded that Listing 1.02 was not Plaintiff’s first issue, essentially, is premised on his Plaintiff, however, fails to point to any inconsistent medical 24 25 26 27 28 3 Plaintiff’s first hearing, scheduled for October 5, 2007, was stayed until July 2, 2008, to allow both the ALJ and the medical expert to consider 162 pages of additional medical evidence supplied by plaintiff. (A.R. 2, 531, 537.) This fact will be more fully discussed infra, in addressing plaintiff’s second issue. 10 of record.4 1 evidence 2 physicians supplied an opinion contrary to that of the medical expert 3 regarding whether any of plaintiff’s impairments met or equaled a 4 listing. 5 activities during the period of disability and objective medical records 6 more thoroughly discussed below, are consistent with the expert’s 7 opinion. 8 the step three issue, thus, constituted substantial evidence upon which 9 the ALJ was entitled to, and did, rely. None of plaintiff’s treating or examining Additional evidence in the record, such as plaintiff’s (See A.R. 16, 374, 385, 410.) The medical expert’s opinion on Accordingly, the ALJ’s 10 determination that plaintiff did not meet or equal a listed impairment 11 is supported by substantial evidence and does not constitute reversible 12 error. 13 14 II. The ALJ Properly Developed The Record. 15 16 Although a claimant bears the burden of proving disability, the ALJ 17 in a social security case has an independent “‘duty to fully and fairly 18 develop the record and to assure that the claimant’s interests are 19 considered.’” Tonapetyan, 242 F.3d at 1150 (quoting Smolen v. Chater, 20 21 22 23 24 25 26 27 28 4 Instead, plaintiff professes to be “confound[ed]” by the ALJ’s inclusion, in his RFC assessment, of limitations regarding operating pedal controls and walking on uneven terrain. Plaintiff argues that the inclusion of such limitations necessarily means that plaintiff meets Listing 1.02, because Listing 1.00B2b purportedly states that an inability to walk on uneven terrain equates to an inability to ambulate effectively. (Joint Stip. at 5.) In fact, Listing 1.00B2b cites as an example of “ineffective ambulation” “the inability to walk a block at a reasonable pace on rough or uneven surfaces,” and thus, it includes distance and temporal components. The fact that the ALJ adopted the medical expert’s recommendation of these two limitations (A.R. 542) does not establish that plaintiff is unable to ambulate effectively. Plaintiff’s attempt to bootstrap the ALJ’s imposition of limitations for purposes of the RFC assessment to the step three analysis is unpersuasive. 11 1 80 F.3d 1273, 1288 (9th Cir. 1996)). “This duty extends to the 2 represented as well as to the unrepresented claimant.” 3 F.3d at 1150. 4 “must be especially diligent in exploring for all the relevant facts.” 5 Id. 6 that social security hearings are not adversarial in nature. 7 Barnhart, 2005 WL 2387702, *3 (C.D. Cal. 2005); see also Sims v. Apfel, 8 530 U.S. 103, 111, 120 S. Ct. 2080, 2085 (2000)(“It is the ALJ’s duty to 9 investigate the facts and develop the arguments both for and against Tonapetyan, 242 When a claimant is not represented by counsel, an ALJ The ALJ’s duty to develop the record extends from the basic premise Orcutt v. 10 granting benefits”). “The ALJ’s duty to supplement a claimant’s record 11 is triggered by ambiguous evidence, the ALJ’s own finding that the 12 record is inadequate or the ALJ’s reliance on an expert’s conclusion 13 that the evidence is ambiguous.” 14 (9th Cir. 2005). Webb v. Barnhart, 433 F.3d 683, 687 15 16 As part of this duty, the ALJ has an obligation to take reasonable 17 steps to ensure that issues and questions raised by medical evidence, 18 particularly evidence from treating physicians, are addressed, so that 19 the 20 evidentiary record, whether favorable or unfavorable to the claimant. 21 See Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1999); Cox v. 22 Califano, 587 F.2d 988, 991 (9th Cir. 1978); see also 20 C.F.R. §§ 23 404.1527(c)(3) and 416.927(c)(3) (providing steps to obtain additional 24 evidence when medical evidence is insufficient to determine whether 25 claimant 26 (providing measures for obtaining additional information from treating 27 doctors). 28 disability issue, the duty to develop the record may require consulting disability is determination disabled); 20 can C.F.R. be fairly §§ made 404.1512(e) on a and sufficient 416.912(e) When it is necessary to enable the ALJ to resolve a 12 1 a medical expert or ordering a consultative examination. See 20 C.F.R. 2 §§ 404.1519a and 416.919a; Armstrong v. Comm’r, 160 F.3d 587, 590 (9th 3 Cir.1998)(when the record indicated that there were diagnoses of mental 4 disorders prior to the date of disability, as well as evidence of the 5 existence of those disorders even prior to the diagnoses, the ALJ was 6 required to call a medical expert to assist in determining when the 7 plaintiff’s impairments became disabling); Pearson v. Bowen, 866 F.2d 8 809, 812 (5th Cir. 1989)(recognizing ALJ’s “duty of ‘full inquiry’ under 9 20 C.F.R. § 416.1444”). 10 11 On the other hand, an ALJ is not obliged to undertake the 12 independent exploration of every conceivable condition or impairment a 13 claimant might suffer. An ALJ does not fail in his or her duty to 14 develop not 15 examination or consultation regarding a physical or mental impairment if 16 no medical evidence indicates that such an impairment exists. 17 Pearson, 866 F.2d at 812 (requiring that claimant must “‘raise a 18 suspicion concerning such an impairment’” before an ALJ is required to 19 discharge 20 examination)(citation omitted); Breen v. Callahan, 56 Soc. Sec. Rep. 21 Ser. 340, 1998 WL 272998, *3 (N.D. Cal. May 22, 1998)(noting that, in 22 the Ninth Circuit, the ALJ’s obligation to develop the record is 23 triggered by “the presence of some objective evidence in the record 24 suggesting the existence of a condition which could have a material 25 impact on the disability decision”). the record his duty by of full seeking inquiry evidence by or ordering ordering a further See consultative 26 27 Plaintiff contends that “the ALJ failed to properly develop the 28 record regarding Plaintiff’s inability to effectively ambulate.” (Joint 13 1 Stip. at 14.) Citing Dr. Carl Jansen’s above-described interpretation 2 of plaintiff’s MRI results and the medical expert’s above-described 3 hearing 4 plaintiff asserts that the ALJ erred in failing to find that plaintiff’s 5 knee impairment meets or equals a listed impairment and speculates that 6 the reason for the 7 that the ALJ found this evidence ambiguous; plaintiff then argues that 8 “[i]f the ALJ had any doubts about” plaintiff’s ability to ambulate 9 effectively, given his knee issues, the ALJ was obligated to develop the 10 record further, including by continuing the hearing and requesting 11 additional treating source records. 12 attempt to manufacture an ambiguity in the evidence, premised solely on 13 his disagreement with the ALJ’s step three determination, is unavailing. testimony regarding plaintiff’s claimed knee condition, ALJ’s allegedly erroneous step three finding was (Joint Stip. at 12.) Plaintiff’s 14 15 As discussed infra, in finding that plaintiff did not meet or equal 16 a listing based on his knee impairment, the ALJ relied on “the objective 17 evidence and claimant’s activities,” as well as the testimony of the 18 medical expert who “did not see [in the record] where there would be 19 [evidence to support] either a meeting or equaling of musculo-skeletal 20 impairment.” 21 of activities that plaintiff has performed during the relevant period, 22 including digging a hole with a pick, walking for three miles, and 23 driving a large SUV, and observed that these activities indicate that 24 plaintiff’s level of functioning may be much greater than the RFC 25 assessed. 26 the medical expert, that “there is no medical opinion in the record (A.R. 13, 16, 540.) The ALJ specifically noted a number (A.R. 16, 374, 385, 410, 507.) 27 28 14 The ALJ also noted, as did (A.R. 13.)5 1 regarding claimant’s need to use a cane.” 2 nor the medical expert indicated that they perceived there to be any 3 ambiguity in the evidence or inadequacy of the record with respect to 4 plaintiff’s ability to ambulate effectively. 5 earlier, the medical expert expressly noted the medical evidence on 6 which plaintiff now relies and unequivocally concluded that there was no 7 basis for finding that plaintiff meets or equals the relevant Listing. Neither the ALJ Indeed, as discussed 8 9 Moreover, plaintiff ignores the fact that the ALJ continued the 10 hearing to permit plaintiff to submit additional medical evidence and 11 both 12 evidence. 13 allow himself and the medical expert adequate time to consider 120 pages 14 of medical records submitted by plaintiff’s counsel on September 28, 15 2007. 16 hearing for July 2, 2008. 17 submitted 25 additional pages of medical records. 18 June 19, 2008, plaintiff submitted 15 additional pages of medical 19 records. the ALJ and the medical expert to consider such additional The ALJ continued the hearing set for October 5, 2007, to (A.R. 358, 531-33.) (A.R. 505-20.)6 On April 3, 2008, the ALJ rescheduled the (A.R. 19.) On May 1, 2008, plaintiff (A.R. 479-504.) On Although plaintiff’s counsel stated, at the 20 21 22 23 24 25 26 27 28 5 Again, although the medical expert stated that the use of a cane would be an “appropriate” limitation, he clarified that the objective medical evidence did not indicate a basis for finding instability and that he based his cane limitation on only plaintiff’s subjective perception of instability. 6 At the July 2, 2008 hearing, the medical expert stated that he had received the additional evidence submitted in September 2007, as well as the 25 additional pages of records submitted on May 1, 2008, but he had not received the 15 additional pages submitted on June 19, 2008. (A.R. 538.) Plaintiff’s attorney then summarized the 15 additional pages on the record (which consisted of emergency room records for a car accident plaintiff had), stated that they did not provide “much new information regarding the chronic problems that [plaintiff] had,” and waived having the medical expert review them. (A.R. 538-39.) The 15 1 July 2, 2008 hearing, that he would send the ALJ a one-page memorandum 2 within 10 days regarding counsel’s argument that plaintiff met or 3 equaled 4 plaintiff’s counsel did so (A.R., passim). Listing 1.02 (A.R. 549-51), there is no evidence that 5 6 Plaintiff has not identified any ambiguity or inadequacy in the 7 record with respect to his assertion that he cannot ambulate 8 effectively. 9 evidence bearing on this issue that the ALJ allegedly would have adduced He also has failed to identify any additional medical 10 had he developed the record further. There is no basis for finding that 11 the ALJ failed to meet his duty with respect to developing the record, 12 much less for finding reversible error. 13 14 III. The ALJ Did Not Commit Error With Respect To Consideration Of 15 The Type, Dosage, And Side Effects Of Plaintiff’s Medications. 16 17 Pursuant to SSR 96-7p, an ALJ must consider the “type, dosage, 18 effectiveness, and side effects of any medication the individual takes 19 or has taken to alleviate pain or other symptoms.” 20 only consider those medication side effects that have a “‘significant 21 impact on an individual’s ability to work.’” 22 F.3d 813, 817-18 (9th Cir. 1993)(citation omitted). The “claimant bears 23 the burden of proving that a medication’s side effects are disabling.” 24 Short v. Astrue, 648 F. Supp. 2d 1185, 1191 (C.D. Cal. 2009); see also However, an ALJ need Erickson v. Shalala, 9 25 26 27 28 medical expert then observed that the medical records he possessed included these same emergency room records. (A.R. 539.) In fact, the 16 additional pages submitted on June 19, 2008, are duplicative of the additional records submitted on May 1, 2008, and thus, they were before the medical expert, as well as the ALJ, prior to the hearing. (Compare A.R. 483-95, 498, 520 with A.R. 506-20.) 16 1 Thomas, 278 F.3d at 960 (rejecting claim that administrative law judge 2 improperly excluded the side effects of medication, because there was no 3 objective evidence that the claimant’s medications caused the side 4 effects she alleged and her testimony in this respect properly was found 5 not 6 1985)(rejecting challenge to administrative law judge’s finding that 7 claimant’s medications did not preclude him from working, when claimant 8 did not produce any “clinical evidence showing that narcotics use 9 impaired his ability to work,” and thus, he did not meet his burden of credible); Miller v. Heckler, 770 F.2d 845, 849 (9th Cir. 10 proving that his claimed impairment was disabling). The ALJ is not 11 obligated to consider a claimant’s allegations of side effects when the 12 claimant has “provided no evidence to support this claim other than a 13 statement in his daily activities questionnaire.” 14 227 Fed. Appx. 656, 2007 WL 1120146, *1 (9th Cir. 2007). 15 because “‘a claimant’s self-serving statements may be disregarded to the 16 extent they are unsupported by objective findings.’” Id. (quoting Nyman 17 v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985)). 18 of side effects” in some medical records would be insufficient in the 19 absence of evidence of side effects “severe enough to interfere with [a 20 claimant’s] ability to work.” 21 (9th Cir. 2001). Hopkins v. Astrue, This is so Even “passing mentions Osenbrock v. Apfel, 240 F.3d 1157, 1164 22 23 Plaintiff observes that, in two progress notes, there is an 24 indication that he takes four medications -- Citalopram, Glipizide, 25 Diclofenac, and Omeprazole. 26 He complains that “the ALJ totally failed to discuss or even mention the 27 type, dosage and side effects of” these four prescribed medications. 28 (Id.) Plaintiff, however, fails to identify any adverse side effects he (Joint Stip. at 16, citing A.R. 282, 375.) 17 1 experiences from taking these four medications and to establish that any 2 such side effects are severe enough to interfere with his ability to 3 work. 4 5 At the hearing, plaintiff was not asked, and did not testify, that 6 he experiences any side effects from medications, and his counsel did 7 not make any such argument. 8 Disability Report, plaintiff stated that: 9 but when taken with another medication (Vicodin), causes him to be 10 “hyper” and unable to sleep; and Omeprazole makes him drowsy. Plaintiff 11 did not list Citalopram (an anti-depressant) and Glipizide (a blood 12 glucose regulator) among the medications he was taking, although he did 13 list Glyburide (another blood glucose regulator) and assert that he must 14 avoid excessive and prolonged exposure to direct or artificial sunlight. 15 (A.R. 187.) 16 indicated that Diclofenac makes him tired and that he experiences no 17 side effects from Omeprazole. 18 among 19 experiences 20 Amitriptyline (an antidepressant). 21 Disability Report, plaintiff identified several medications he takes. 22 He indicated: 23 experiences from Omeprazole; and upset stomach and a “little” dizziness 24 from 25 medications he was taking, but he indicated that Glyburide “sometimes” 26 causes him to have low blood sugar. 27 September 2006, plaintiff reported to his treating physicians that he 28 was not experiencing any adverse side effects from his medications the (A.R. 547-49.) In an unsigned and undated Diclofenac makes him drowsy, In a December 28, 2005 Disability Report, plaintiff medications no side he He did not list Citalopram and Glipizide was effects taking, from but did indicate Glyburide and is (A.R. 129-30.) made that he tired by In a March 2006 “none” when asked to identify any side effects he Diclofenac. He did not list 18 Citalopram and (A.R. 120-21.) Glipizide as In July and 1 (including Citalopram), was “happy” with his medication regimen, and 2 described his energy level as fair to good. (A.R. 416-19. 436.) 3 4 Plaintiff’s argument devolves to a contention that, because there 5 is objective medical evidence that he takes medications, the ALJ was 6 required to address the “side effects” of such medications. 7 however, has not shown that there is any objective medical evidence 8 establishing, or tending to establish, that he actually does experience 9 adverse side effects from his medications, much less side effects Plaintiff, 10 sufficiently severe to impair his ability to work. 11 contains only his own self-serving statements set forth above. 12 discussed earlier, these mere self-serving statements are insufficient 13 to satisfy plaintiff’s burden to “prov[e] that a medication’s side 14 effects are disabling.” 15 240 F.3d at 1164; Hopkins, 2007 WL 1120146, at *1; Nyman, 779 F.2d at 16 531. At most, the record As Short, 648 F. Supp. 2d at 1191; see Osenbrock, 17 18 Plaintiff did not meet his burden, in the proceedings before the 19 Social Security Administration, of showing that he suffers from adverse 20 side effects severe enough to that have a significant impact on his 21 ability to work, and he has not established any such disabling effects 22 here. 23 asserted failure to consider properly the type, dosage, and side effects 24 of plaintiff’s medications. Accordingly, no reversible error can be found based on the ALJ’s 25 26 CONCLUSION 27 28 For all of the foregoing reasons, the Court finds that neither 19 1 reversal of the ALJ’s decision nor remand is warranted. Accordingly, IT 2 IS ORDERED that Judgment shall be entered affirming the decision of the 3 Commissioner of the Social Security Administration and dismissing this 4 case with prejudice. 5 6 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 7 copies of this Memorandum Opinion and Order and the Judgment on counsel 8 for Plaintiff and for Defendant. 9 10 LET JUDGMENT BE ENTERED ACCORDINGLY. 11 12 DATED: September 10, 2010 13 14 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20
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