Nicole Leon v. Michael J. Astrue, No. 5:2010cv00915 - Document 21 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. For the reasons set forth above, the Agency's decision is affirmed. IT IS SO ORDERED. **PLEASE REVIEW DOCUMENT FOR FULL AND COMPLETE DETAILS** (ca)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 NICOLE LEON, Plaintiff, 11 12 13 14 15 v. MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 10-915 PJW MEMORANDUM OPINION AND ORDER 16 17 18 I. INTRODUCTION Plaintiff appeals a decision of Defendant Social Security 19 Administration ( the Agency ), denying her application for Disability 20 Insurance benefits ( DIB ) and Supplemental Security Income ( SSI ). 21 She claims that the Administrative Law Judge ( ALJ ) erred when he 22 concluded that she could work as a cashier and when he rejected her s 23 and her mother s testimony. 24 Agency s decision is affirmed. 25 II. For the reasons discussed below, the SUMMARY OF PROCEEDINGS 26 In 2005, Plaintiff applied for DIB and SSI, alleging that she was 27 disabled due to fibromyalgia, chronic fatigue, chronic pain, irritable 28 bowel syndrome, and depression. (Administrative Record ( AR ) 100-03, 1 108, 112, 116, 132-50.) The Agency denied the applications initially 2 and on reconsideration. (AR 40-41, 59-63, 66-70.) 3 and was granted a hearing before an ALJ. 4 appeared with counsel and testified at the hearing on October 15, 5 2007. 6 benefits. 7 which granted review, vacated the ALJ s decision, and remanded the 8 case to the ALJ for further proceedings. 9 2009, the ALJ held a second hearing. (AR 331-56.) She then requested (AR 39, 93-94.) Plaintiff The ALJ subsequently issued a decision denying (AR 48-58.) Plaintiff appealed to the Appeals Council, (AR 45-47.) (AR 357-90.) On July 20, Thereafter, he 10 issued a second decision, again denying benefits. 11 Plaintiff appealed to the Appeals Council, which denied review. 12 4-8.) III. A. (AR She then commenced this action. 13 14 (AR 9-21.) ANALYSIS The Credibility Findings 15 i. Plaintiff 16 The gist of Plaintiff s testimony was that she was, in essence, 17 physically incapacitated as a result of pain and had difficulty 18 thinking clearly because of her mental/emotional impairments. 19 132-59, 335-51.) 20 working at any job. The ALJ found that her testimony was not 21 credible. Plaintiff argues that the ALJ erred in doing so. 22 For the reasons explained below, the Court finds that the ALJ did not 23 err. 24 (AR As a result, in her view, she was incapable of (AR 20.) ALJ s are tasked with judging the credibility of witnesses. 25 Where a claimant has produced objective medical evidence of an 26 impairment which could reasonably be expected to produce the symptoms 27 alleged and there is no evidence of malingering, she can only reject 28 the claimant s testimony for specific, clear, and convincing reasons. 2 1 Smolen v. Chater, 80 F.3d 1273, 1283-84 (9th Cir. 1996). 2 credibility determination, the ALJ may take into account ordinary 3 credibility evaluation techniques as well as the claimant s daily 4 activities. 5 In making a Id. at 1284. The ALJ cited several reasons for questioning Plaintiff s 6 credibility. 7 was inconsistent with the medical record. 8 that, while Plaintiff alleged constant pain throughout her body and an 9 inability to sit for more than an hour-and-a-half, she elected to fly 10 (AR 20.) He spoke in general terms of how her testimony (AR 20.) for hours upon hours to Jamaica for vacation. 11 He explained (AR 20.) This appears to be a specific, clear, and convincing reason for 12 questioning Plaintiff s testimony. 13 question the testimony of a claimant who claims that she was incapable 14 of sitting for more than an hour-and-a-half yet chose to sit for hours 15 on an airplane to go on vacation. 16 Plaintiff disagrees. It seems reasonable for an ALJ to She argues that the ALJ was exaggerating 17 when he found that the plane ride lasted hours and hours, since, as 18 she testified, it lasted only five-and-a-half hours. 19 15.) 20 time she was on the airplane and that she got up every 30 minutes to 21 stretch. 22 (Joint Stip. at She points out further that she did not have to sit the whole (Joint Stip. at 15, citing AR 347.) The Court does not find the ALJ s analysis lacking. The Court 23 cannot say that the ALJ s use of the term hours and hours as opposed 24 to five-and-a-half hours mischaracterized the evidence. 25 though Plaintiff claims that she got up every 30 minutes, the ALJ was 26 not required to accept that testimony and clearly, he did not. 27 relevant point is that the ALJ was skeptical about Plaintiff s claims 28 that she could not sit for an hour-and-a-half when he learned that she 3 Further, The 1 flew for five-and-a-half hours to go on vacation in Jamaica. 2 was allowed to consider this in evaluating Plaintiff s testimony and 3 the Court cannot say that he erred in doing so. 4 v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (holding ALJ properly 5 inferred from claimant s ability to travel to Venezuela that he was 6 not as physically limited as he purported to be); Smolen, 80 F.3d 7 1283-84 (explaining ALJ can rely on ordinary credibility evaluation 8 techniques in assessing claimant s credibility). 9 The ALJ See, e.g., Tommasetti The ALJ also questioned Plaintiff s testimony when he learned 10 that she spent time on the beach in Jamaica. 11 that was inconsistent with her claim that she constantly suffered from 12 disabling pain. 13 doing so because, as was explained at the hearing, the purpose of her 14 going in the ocean was to see if the water would help ease her pain. 15 (Joint Stip. at 16.) 16 (AR 20.) (AR 20.) In his view, Plaintiff argues that the ALJ erred in The Court does not find error here, either. According to 17 Plaintiff, her pain is so debilitating that she is unable to walk more 18 than 10-15 feet without resting for 20-40 minutes. 19 were true, it would seem that she would be incapable of going to the 20 beach and spending time in the ocean in Jamaica. 21 seem that she would shy away from such a trip, knowing that it would 22 require her to do things that she was not capable of doing. 23 e.g., Tommasetti, 533 F.3d at 1040. 24 (AR 137.) If this Further, it would See, The ALJ also questioned Plaintiff s testimony based on the fact 25 that her mother claimed that she experienced terrible side effects 26 from her medication and the medical record did not support such a 27 claim. 28 reason to question Plaintiff s credibility. (AR 20.) The Court does not find this to be a compelling 4 Even assuming that the 1 mother s testimony was exaggerated, or worse, that is not a reason to 2 question Plaintiff s testimony without something more. 3 never alleged that she experienced terrible side effects and there is 4 no evidence that she told her mother to say that she did. 5 connection between the mother s and the daughter s testimony, the 6 Court cannot find that the mother s exaggeration is a valid reason for 7 questioning Plaintiff s testimony. 8 9 Plaintiff Absent some The ALJ found that Plaintiff s testimony was also undermined by her father s testimony. (AR 20.) Here, the Court agrees. Plaintiff 10 lived with her father and the record discloses that he was present and 11 involved in her life. 12 all day. 13 the 2007 and the 2009 hearings that she never watches T.V. 14 370.) 15 who is trying to look more deserving of benefits and casts a shadow of 16 doubt on her testimony. 17 (AR 381.) According to her father, Plaintiff watches T.V. This contradicts Plaintiff s testimony in both (AR 345, Though this may be a small point, it is indicative of someone In addition, Plaintiff testified that she tried to kill herself 18 countless times. 19 taken for emergency care in 2006 after a suicide attempt. 20 Plaintiff testified that her father knew to a certain extent about 21 her suicide attempts. 22 testified that they had taken her to the emergency room on just one 23 occasion because they thought something terrible had happened to 24 her. 25 kill herself at all, never mind countless times. 26 there are no medical records for treatment following a suicide 27 attempt. 28 also support the ALJ s credibility finding. (AR 386.) (AR 366.) She claimed, in fact, that she had been (AR 378.) (AR 367.) Plaintiff s father, however, He did not seem to have any idea that she tried to (AR 386.) Further, These contradictions in the testimony and the medical record 5 1 Though not delineated as credibility findings, the ALJ also 2 pointed out discrepancies between what Plaintiff claimed that she 3 could and could not do and statements she made to various doctors. 4 (AR 16.) 5 and at other times admitted that she could and, in fact, had driven 6 herself to her medical appointments. 7 contradictions, too, support the ALJ s overall finding that Plaintiff 8 was not credible. For example, she claimed at times that she could not drive (AR 308-09, 318.) These 9 Though another ALJ might have viewed this evidence differently, 10 the Court s task is not to evaluate all possible outcomes and choose 11 the one it thinks is best. 12 did and where, as here, the ALJ s credibility finding is specific, 13 clear, and convincing, it must be upheld. 14 see also Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005) 15 (explaining reviewing court must uphold the ALJ s decision where the 16 evidence is susceptible to more than one rational interpretation. ). Rather, its task is to review what the ALJ Smolen, 80 F.3d at 1283-84; 17 ii. Plaintiff s Mother 18 The ALJ also questioned the veracity of Plaintiff s mother s 19 testimony, which was contained in a report she filled out and 20 submitted to the Agency. 21 was inconsistent with the medical evidence. 22 further that the mother alleged that Plaintiff suffered terrible side 23 effects from her medications but the record did not support these 24 alleged side effects. 25 was not supported by the record. 26 contends that there was no error here. 27 Court sides with the Agency. (AR 123-31.) (AR 20.) He found that her testimony (AR 20.) He noted Plaintiff argues that this finding (Joint Stip. at 27.) 28 6 The Agency For the following reasons, the 1 Lay testimony is competent evidence, which an ALJ is required to 2 consider in determining if a claimant is disabled. 3 100 F.3d 1462, 1467 (9th Cir. 1996) (citing Dodrill v. Shalala, 12 4 F.3d 915, 919 (9th Cir. 1993)). 5 ALJ need only provide reasons that are germane to the witness. 6 Dodrill, 12 F.3d at 919. 7 Nguyen v. Chater, In order to reject it, however, the Plaintiff s mother noted that doctors had prescribed various 8 medications for Plaintiff but none has really helped and [they] 9 create terrible side effects. (AR 130.) The ALJ found that there 10 was no evidence of terrible side effects and that this called into 11 question the mother s testimony. 12 pages 212 and 214-15 of the medical record there is evidence that she 13 suffered from side effects from her medication. 14 27.) 15 on these pages listing side effects such as vomiting and nausea. 16 212, 214-15.) 17 evidence, the ALJ s finding that there was no evidence of terrible 18 side effects is valid and whether it is enough to discount 19 Plaintiff s mother s testimony. 20 Plaintiff is right. (AR 20.) Plaintiff argues that at (Joint Stip. at 26- There are notations in the medical charts (AR The question that remains is whether, in light of this Arguably, nausea and vomiting are not terrible side effects of 21 medication. And the medical record, as a whole, supports the ALJ s 22 ultimate finding that these side effects were not so severe. 23 more than 100 pages of medical records and reports, side effects are 24 barely mentioned or discussed. 25 medications Plaintiff was taking at the time, she noted that the only 26 side effects she was experiencing were drowsiness and headaches. 27 165.) 28 Plaintiff was not experiencing terrible side effects from her In the In an April 2006 form listing five (AR Thus, the Court cannot say that the ALJ erred in finding that 7 1 medication and that her mother s statement that she was undermined her 2 testimony. 3 testimony and is supported by the evidence in the record. 4 will be upheld.1 5 B. This was a germane reason to question the mother s As such, it The ALJ s Finding That Plaintiff Can Perform Her Past Work 6 As A Cashier 7 The ALJ determined that Plaintiff was limited to performing 8 simple, repetitive tasks. (AR 17.) 9 perform her past work as a cashier. He also concluded that she could (AR 21.) The job of a cashier 10 requires the ability to reason at Level 3, meaning that a worker must 11 be able to: 12 Apply commonsense understanding to carry out instructions 13 furnished in written, oral, or diagrammatic form. Deal with 14 15 16 1 17 18 19 20 21 22 23 24 25 26 27 28 In addition to his specific finding that Plaintiff s mother s testimony was not to be believed because of her reference to terrible side effects, the ALJ also relied, it seems, on a general finding that her testimony was inconsistent with the medical evidence. (AR 20.) It is not clear whether a generalized finding that lay testimony is inconsistent with the medical record is a sufficient reason for rejecting it. One line of cases suggests that it is. See Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) ( One reason for which an ALJ may discount lay testimony is that it conflicts with medical evidence. ); see also Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) ( An ALJ need only give germane reasons for discrediting the testimony of lay witnesses. Inconsistency with medical evidence is one such reason. ) (citations omitted). Another line of cases suggests that it is not. See Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009) ( Nor under our law could the ALJ discredit her lay testimony as not supported by medical evidence in the record. ) (citing Smolen, 80 F.3d at 1289). The Court need not resolve this issue here in light of the fact that it is upholding the ALJ s finding that the mother s testimony was undermined by her claim that Plaintiff suffered terrible side effects from her medications when she in fact did not. 8 1 problems involving several concrete variables in or from 2 standardized situations. 3 Dictionary of Occupational Titles ( DOT ) 211.462-010. 4 Plaintiff contends that a restriction to simple, repetitive work 5 is inconsistent with an ability to reason at Level 3. 6 6.) 7 classified as unskilled work and that someone with Plaintiff s 8 background, i.e., a high school graduate with some college who had 9 worked in skilled positions in the past, is capable of performing it. 10 11 The Agency disagrees. (Joint Stip. at It argues that the cashier job is (Joint Stip. at 9, 11.) There is not a lot of guidance for the Court to follow on this 12 issue. There is no Ninth Circuit precedent. The Seventh Circuit has 13 found that someone limited to simple, repetitive work can perform 14 Reasoning Level 3 work. 15 2009) (finding ALJ did not err in concluding that claimant limited to 16 simple work can perform job requiring Level 3 reasoning). 17 Circuit has issued arguably conflicting decisions on the issue, but 18 most recently has determined that a claimant limited to simple, 19 concrete instructions can perform work as a cashier requiring Level 3 20 reasoning. 21 Cir. 2007); but see Clay v. Barnhart, 417 F.3d 922, 931 (8th Cir. 22 2005) (recognizing potential inconsistency between an ability to 23 perform work as cashier and a limitation to work involving simple, 24 concrete instructions). 25 reasoning is inconsistent with a limitation on simple and routine work 26 and is, instead, more consistent with Level 2 reasoning. 27 v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005). Terry v. Astrue, 580 F.3d 471, 478 (7th Cir. The Eighth See Hillier v. Soc. Sec. Admin., 486 F.3d 359, 367 (8th The Tenth Circuit has concluded that Level 3 28 9 See Hackett 1 As the parties point out, there is a conflict between the 2 decisions of the district courts within this district and within this 3 state on this issue. 4 reasoning is incompatible with simple, repetitive work, while others 5 have found the opposite. 6 governing social security cases or the DOT that clearly instructs one 7 way or the other. 8 9 Some district courts have found that Level 3 And there is nothing in the regulations In the absence of controlling authority, the Court takes a different approach. First, it notes that the vocational expert 10 testified that her testimony was consistent with the DOT. (AR 387.) 11 She testified that, despite a restriction to simple, repetitive work, 12 Plaintiff could perform her former job as a cashier. 13 Plaintiff s counsel did not object to this testimony. 14 did he ask any follow-up questions to inquire into the point he now 15 raises in this appeal. 16 four reasons. 17 expert s testimony that Plaintiff could perform this job despite her 18 limitations. 19 conclusion that Plaintiff could perform her past work as a cashier was 20 a step-four finding. 21 establishing that she could not perform this job. 22 Astrue, 622 F.3d 1228, 1233-34 (9th Cir. 2010). 23 present any evidence or argument at the administrative hearing that 24 she was precluded from performing this job because it was beyond her 25 mental capabilities. 26 conflicted with the DOT, Plaintiff s counsel had an obligation to say 27 so at the hearing and not wait more than two years to raise the issue. 28 Had he done so, the issue could have been resolved back then or, at (AR 388.) (AR 388.) Nor The Court finds these facts significant for First, the ALJ was entitled to rely on the vocational See Bayliss, 427 F.3d at 1217-18. Second, the ALJ s At step four, Plaintiff had the burden of See Berry v. Yet, she did not Third, if the vocational expert s testimony 10 1 least, the record could have been better developed for review in this 2 court.2 3 Level 3 reasoning suggests that a person with three or four years of 4 college, like Plaintiff (AR 335)--even one who is impaired somewhat 5 due to mental impairments stemming from depression--would have the 6 ability to apply commonsense understanding and deal with problems 7 involving concrete variables to work as a cashier. 8 F.3d at 367 (finding claimant limited to simple, concrete instructions 9 who previously worked as cashier can work as cashier despite these Fourth, and finally, a plain reading of the definition of 10 limitations). 11 See Hillier, 486 For these reasons, the Court concludes that the ALJ did not err here. 12 13 14 IV. CONCLUSION For the reasons set forth above, the Agency s decision is affirmed. 15 IT IS SO ORDERED. 16 DATED: November 7, 2011. 17 18 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 19 20 21 S:\PJW\Cases-Soc Sec\LEON, N 915\memo.opinion and order.wpd 22 23 2 24 25 26 27 28 Plaintiff was represented by the same law firm that now represents her in the district court, though other lawyers from the firm appeared on her behalf in the administrative hearings. (AR 7173, 331, 357.) The Court takes notice of the fact that social security lawyers, including lawyers from this firm, are routinely awarded fees in excess of $500 per hour in these cases, sometimes more than $1,000 per hour. Clearly, lawyers commanding these types of fees can be expected to be experts in their field and also expected to vigorously advocate on behalf of their clients. 11
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