Mario Gutierrez v. Michael J Astrue, No. 5:2010cv01401 - Document 20 (C.D. Cal. 2011)
Court Description: MEMORANDUM AND OPINION AND ORDER by Magistrate Judge Sheri Pym: IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits, and dismissing this action with prejudice. (am)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MARIO GUTIERREZ, 12 13 14 15 16 17 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security Administration, Defendant. ) Case No. ED CV 10-1401-SP ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 18 19 I. 20 INTRODUCTION 21 On September 15, 2010, plaintiff Mario Gutierrez filed a complaint against 22 defendant Michael J. Astrue, seeking a review of a denial of disability insurance 23 benefits ( DIB ), and supplemental security income ( SSI ). Docket No. 1. Both 24 plaintiff and defendant have consented to proceed for all purposes before the 25 Magistrate Judge pursuant to 28 U.S.C. § 636(c). Docket Nos. 15, 16. 26 Pursuant to a September 17, 2010 case management order, the parties 27 submitted a detailed, 20-page joint stipulation for decision on May 17, 2011. Docket 28 No. 19. The court deems the matter suitable for adjudication without oral argument. 1 In sum, having carefully studied, inter alia, the parties joint stipulation and 2 the administrative record, the court concludes that, as detailed herein, there is 3 substantial evidence in the record, taken as a whole, to support the decision of the 4 Administrate Law Judge ( ALJ ). Therefore, the court affirms the Commissioner s 5 decision denying benefits. 6 II. 7 FACTUAL AND PROCEDURAL BACKGROUND 8 Plaintiff, who was sixty years old on the date of his November 20, 2009 9 administrative hearing, has a high school education and a law degree from Mexico. 10 See Administrative Record ( AR ) at 25, 28, 142, 160. His past relevant work 11 includes employment as a truck driver. Id. at 29, 156, 202. 12 On February 20, 2008, plaintiff filed applications for DIB and SSI, alleging 13 that he has been disabled since February 2, 2007 due to rectal fistula. See AR at 15, 14 46, 135-39, 155. Plaintiff s applications were denied initially and upon 15 reconsideration, after which he filed a request for a hearing. Id. at 42, 43, 44, 45, 4616 50, 51, 52-56, 57. 17 On November 20, 2009, plaintiff, represented by counsel, appeared and 18 testified at a hearing before the ALJ. AR at 25, 28-39, 41. On January 5, 2010, the 19 ALJ denied plaintiff s request for benefits. Id. at 15-24. 20 Applying the well-known five-step sequential evaluation process, the ALJ 21 found, at step one, that plaintiff has not engaged in substantial gainful activity since 22 his alleged onset date of disability. AR at 17. 23 At step two, the ALJ found that plaintiff suffers from severe impairments 24 consisting of impairments of the gastrointestinal and musculoskeletal systems. 25 AR at 17 (emphasis omitted). 26 At step three, the ALJ determined that the evidence does not demonstrate that 27 plaintiff s impairments, either individually or in combination, meet or medically 28 2 1 equal the severity of any listing set forth in the Social Security regulations.1/ AR at 2 19. The ALJ then assessed plaintiff s residual functional capacity2/ ( RFC ) and 3 4 determined that he can perform medium work. Specifically, the ALJ found that 5 plaintiff can: lift and/or carry 25 pounds frequently and 50 pounds occasionally ; 6 and occasionally perform postural activities including bending, stooping, squatting, 7 crouching, crawling, and kneeling from one-third to two-third in a normal eight-hour 8 workday. AR at 19 (emphasis omitted). The ALJ found, at step four, that plaintiff is capable of performing past 9 10 relevant work as a truck driver. AR at 23. Thus, the ALJ concluded that plaintiff 11 was not suffering from a disability as defined by the Act. Id. at 15, 24. Plaintiff filed a timely request for review of the ALJ s decision, which was 12 13 denied by the Appeals Council. AR at 1-3, 7. The ALJ s decision stands as the final 14 decision of the Commissioner. 15 III. 16 STANDARD OF REVIEW This court is empowered to review decisions by the Commissioner to deny 17 18 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 19 Administration must be upheld if they are free of legal error and supported by 20 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). 21 But if the court determines that the ALJ s findings are based on legal error or are not 22 23 24 1/ See 20 C.F.R. pt. 404, subpt. P, app. 1. 2/ Residual functional capacity is what a claimant can still do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 26 n.5 (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 assesses the claimant s 27 residual functional capacity. Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 28 2007). 3 1 supported by substantial evidence in the record, the court may reject the findings and 2 set aside the decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 1035 3 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001). 4 Substantial evidence is more than a mere scintilla, but less than a 5 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such relevant 6 evidence which a reasonable person might accept as adequate to support a 7 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d 8 at 459. To determine whether substantial evidence supports the ALJ s finding, the 9 reviewing court must review the administrative record as a whole, weighing both 10 the evidence that supports and the evidence that detracts from the ALJ s 11 conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be affirmed 12 simply by isolating a specific quantum of supporting evidence. Aukland, 257 F.3d 13 at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the 14 evidence can reasonably support either affirming or reversing the ALJ s decision, 15 the reviewing court may not substitute its judgment for that of the ALJ. Id. 16 (quoting Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). 17 IV. 18 ISSUES PRESENTED 19 Two disputed issues are presented for decision here: 20 (1) whether the ALJ properly considered all of the relevant medical evidence 21 of record in this case; and 22 (2) whether the ALJ properly considered plaintiff s subjective complaints and 23 properly assessed plaintiff s credibility. Joint Stipulation ( JS ) at 3, 3-13, 13-18. 24 V. 25 DISCUSSION 26 A. The ALJ Properly Evaluated the Medical Evidence 27 Plaintiff contends that the ALJ, in determining that plaintiff is not disabled, 28 erred by fail[ing] to properly consider the relevant medical evidence of record. JS 4 1 at 4. Specifically, plaintiff argues that the medical records show that he has been 2 experiencing rectal/anal problems since his alleged date of onset of February 2, 3 2007, including pain and bleeding consistently through the decision date. Id. 4 Plaintiff maintains that the medical evidence demonstrates he suffers from a 5 combination of . . . physical impairments that render him disabled, namely, 6 rectal/anal impairments, severe lumbar spinal degenerative disc disease and 7 degenerative joint disease, and . . . severe vision impairment due to glaucoma. Id. 8 at 4, 7. 9 10 1. Pertinent Law In evaluating medical opinions, Ninth Circuit case law and Social Security 11 regulations distinguish among the opinions of three types of physicians: (1) those 12 who treat the claimant (treating physicians); (2) those who examine but do not treat 13 the claimant (examining physicians); and (3) those who neither examine nor treat the 14 claimant (nonexamining physicians). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 15 1996); see also 20 C.F.R. §§ 404.1527(d), 416.927(d) (prescribing the respective 16 weight to be given the opinion of treating sources and examining sources). 17 As a general rule, more weight should be given to the opinion of a treating 18 source than to the opinion of doctors who do not treat the claimant. Lester, 81 F.3d 19 at 830; accord Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1036 (9th Cir. 20 2003). This is so because a treating physician is employed to cure and has a greater 21 opportunity to know and observe the patient as an individual. Sprague v. Bowen, 22 812 F.2d 1226, 1230 (9th Cir. 1987). The opinion of an examining physician is, in 23 turn, entitled to greater weight than the opinion of a nonexamining physician. 24 Lester, 81 F.3d at 830. 25 Where the treating physician s opinion is not contradicted by another doctor, 26 it may be rejected only for clear and convincing reasons. Benton, 331 F.3d at 27 1036; see also Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) ( While the 28 ALJ may disregard the opinion of a treating physician, whether or not controverted, 5 1 the ALJ may reject an uncontroverted opinion of a treating physician only for clear 2 and convincing reasons. ). Even if the treating doctor s opinion is contradicted by 3 another doctor, the [ALJ] may not reject this opinion without providing specific and 4 legitimate reasons supported by substantial evidence in the record. Lester, 81 F.3d 5 at 830 (internal quotation marks and citation omitted); accord Reddick, 157 F.3d at 6 725. The ALJ can meet the requisite specific and legitimate standard by setting out 7 a detailed and thorough summary of the facts and conflicting clinical evidence, 8 stating his interpretation thereof, and making findings. Magallanes v. Bowen, 881 9 F.2d 747, 751 (9th Cir. 1989) (internal quotation marks and citation omitted). 10 11 2. Dr. Javier R. Rios The ALJ properly rejected the opinion of Javier R. Rios, M.D. for two 12 reasons. First, the ALJ properly rejected Dr. Rios s opinion because it was not 13 supported by the objective evidence. See Burkhart v. Bowen, 856 F.2d 1335, 133914 40 (9th Cir. 1988) (ALJ properly rejected treating physician s opinion which was 15 unsupported by medical findings, personal observations, or test reports); Batson v. 16 Comm r, 359 F.3d 1190, 1195 (9th Cir. 2004) (ALJ may discredit treating 17 physician s opinions that are conclusory, brief, and unsupported by the record as a 18 whole, or by objective medical findings). Here, the ALJ considered [Dr. Rios s 19 opinion that] the claimant [is] permanently disabled due to rectal fistula, but the 20 ALJ found that this conclusion was contrary to the medical evidence which shows 21 that plaintiff s medically determinable impairment of rectal fistula healed 100%. 22 AR at 23. Further, the objective medical record supports the ALJ s conclusion. For 23 instance, plaintiff was initially prescribed ointments and suppositories (see id. at 24 255-56, 257, 258, 259, 260, 261-62, 263, 264, 265) to treat his anal fissure, and by 25 June 14, 2007, Edward Steven Tyau, M.D. reported that the [f]issure appears to be 26 completely healed. Id. at 556. Plaintiff began complaining of anal pain again in 27 September 2007 (id. at 271), and on October 25, 2007 plaintiff underwent anal 28 fistulotomy without complications. Id. at 275; see id. at 276 (On November 5, 2007, 6 1 following the surgery, Dr. Tyau noted on examination that the area is healing well 2 . . . [with] rawness to the edges [but] . . . [h]e should be back to normal duties. ), 3 277 (On November 28, 2007, Dr. Tyau noted on examination that the fistulotomy 4 site is well healing and almost 90 % healed. ), 279 (On January 28, 2008, Dr. Tyau 5 noted on examination that the fistulotomy site is 90% healed, and plaintiff was 6 advised that he may have [continued] discomfort even after it heals, as his 7 discomfort may be chronic as opposed to his hemorrhoids and/or fistula ), 283 (On 8 February 21, 2008, Dr. Tyau noted that the rectal exam revealed external 9 hemorrhoid, internal hemorrhoid, and tenderness to the fistulotomy site but it is 10 healed 100 % now ). In March 2008, Ngoc Van Nguyen, M.D. discovered a large 11 broad-based anal lesion/ulcer and in June 2008 plaintiff underwent a 12 sphincterotomy. Id. at 286, 313. On July 22, 2008, Dr. Nguyen noted that the area 13 is about 85 % healed and opined that plaintiff s pain is not from [the] perianal 14 area anymore but [rather is] more musculoskeletal pain. Id. at 471. 15 The ALJ also considered Dr. Rios s finding that plaintiff is totally and 16 permanently disabled due to severe degenerative disease in the lumbar spine and 17 fractures resulting in persistent pain. AR at 23 (citing id. at 399). The ALJ likewise 18 rejected this opinion because it was contrary to the medical evidence. Although 19 plaintiff suffered from degenerative changes in his lower back (id. at 22, 389-91, 20 619-23), consultative examining physician Bunsri T. Sophon, M.D. found that 21 plaintiff possessed full range of motion of the cervical . . . [and] lumbar spine (id. 22 at 409), and does not have significant physical impairment or functional 23 limitations. Id. at 411. Dr. Sophon s opinion was based on a physical examination, 24 plaintiff s medical history, and review of the medical record. Id. at 407-12; see 25 Magallanes, 881 F.2d at 751 (examining physician s opinion may constitute 26 substantial evidence if the nontreating physician relies on independent clinical 27 findings that differ from the findings of the treating physician (internal quotation 28 marks and citation omitted)). 7 1 Second, although Dr. Rios opined that plaintiff is totally and permanently 2 disabled (AR at 399), a treating physician s non-medical opinion on whether the 3 claimant is disabled is not entitled to special significance. Boardman v. Astrue, 4 286 Fed. App x 397, 399 (9th Cir. 2008) ( The ALJ is correct that a determination 5 of a claimant s ultimate disability is reserved to the Commissioner, and that a 6 physician s opinion on the matter is not entitled to special significance. ); see 20 7 C.F.R. §§ 404.1527(e)(1), 416.927(e)(1). In other words, Dr. Rios s non-medical 8 opinion that plaintiff is unable to work is not binding on the Commissioner. See 9 Ukolov v. Barnhart, 420 F.3d 1002, 1004 (9th Cir. 2005) ( Although a treating 10 physician s opinion is generally afforded the greatest weight in disability cases, it is 11 not binding on an ALJ with respect to the existence of an impairment or the ultimate 12 determination of disability. (internal quotation marks and citation omitted)); 20 13 C.F.R. § 404.1527(e)(1) ( We are responsible for making the determination or 14 decision about whether you meet the statutory definition of disability . . . . A 15 statement by a medical source that you are disabled or unable to work does not 16 mean that we will determine that you are disabled. ); 20 C.F.R. § 416.927(e)(1) 17 (same). Indeed, under the regulations, opinions on ultimate disability arguably do 18 not constitute a valid medical opinion. See 20 C.F.R. § 404.1527(e) ( Opinions on 19 some issues, such as [that you are unable to work ], are not medical opinions, . . . 20 but are, instead, opinions on issues reserved to the Commissioner because they are 21 administrative findings that are dispositive of a case; i.e., that would direct the 22 determination or decision of disability. ); 20 C.F.R. § 416.927(e) (same). Therefore, 23 the ALJ was not required to explicitly detail his reasons for rejecting Dr. Rios s 24 opinion on plaintiff s ultimate disability. See Nyman v. Heckler, 779 F.2d 528, 531 25 (9th Cir. 1986) (Because opinions by medical experts regarding the ultimate 26 question of disability are not binding[,] . . . [the Commissioner] was not obliged to 27 explicitly detail his reasons for rejecting the [treating physician s] opinion. ). 28 / / / 8 1 2 3. Diego H. Sevilla, P.A.-C The ALJ properly discounted the opinion of Diego H. Sevilla, P.A.-C a 3 physician s assistant at the same clinic as Dr. Rios. See AR at 23, 433 (on a 4 prescription note, dated February 18, 2008, PA Sevilla opined that plaintiff is 5 permanently disabled because of rectal fistula). A physician s assistant is not an 6 acceptable medical source for establishing a medically determinable impairment. 7 See 20 C.F.R. §§ 404.1513(a), 416.913(a). Because physician s assistants are not 8 acceptable medical sources, their opinions are not entitled to the standard of 9 review afforded physicians; instead, the opinions of physician s assistants are 10 reviewed under the same standard afforded lay witnesses. See Turner v. Comm r, 11 613 F.3d 1217, 1223-24 (9th Cir. 2010). Thus, if an ALJ wishes to discount such 12 opinions, the ALJ must give reasons that are germane to each witness for doing so. 13 Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993); see infra Part V.B.3. Here, the 14 ALJ did, in fact, provide reasons germane to PA Sevilla for rejecting his opinion. 15 First, the ALJ correctly found that PA Sevilla is not . . . an acceptable medical 16 source, and thus properly gave his opinion less weight than other qualifying 17 medical source opinions. AR at 23. The ALJ also found that PA Sevilla s opinion 18 suffered the same defect as Dr. Rios s opinion namely, that it is conclusory on the 19 ultimate issue of disability which is reserved for the Commissioner. Id. Thus, the 20 ALJ did not err in discounting PA Sevilla s opinion. 21 22 4. Dr. Edward Steven Tyau and Dr. Ngoc Van Nguyen Plaintiff contends that although the ALJ mentioned some of [the medical 23 reports by Dr. Tyau and Dr. Nguyen] in his unfavorable decision, the ALJ 24 completely misstates the medical evidence by finding that [p]laintiff s anal/rectal 25 problem was completely healed in early 2008, and thus was non severe in that it 26 lasted less than 12 months. JS at 6 (citing AR at 18). Plaintiff s argument lacks 27 merit for two reasons. First, the ALJ is not required to discuss at length medical 28 evidence that he did not reject. See Howard ex rel. Wolff v. Barhart, 341 F.3d 1006, 9 1 1012 (9th Cir. 2003). Instead, the ALJ must provide an explanation only when he 2 rejects significant probative evidence. See Vincent ex rel. Vincent v. Heckler, 739 3 F.2d 1393, 1394-95 (9th Cir. 1984) (per curiam) (citation omitted). Here, the ALJ 4 properly considered and adopted the findings of Dr. Tyau and Dr. Nguyen in his 5 decision. See, e.g., AR at 17 (adopting Dr. Tyau s opinion, the ALJ stated that [b]y 6 November 2007, the claimant appeared to be healing well and was informed he 7 would be able to return to normal duties shortly ). 8 Second, contrary to plaintiff s contention, the ALJ did not misstate the 9 medical evidence and his findings were consistent with the objective evidence. For 10 example, the ALJ s finding that plaintiff s anal/rectal condition was completely 11 healed by early February 2008 is wholly consistent with Dr. Tyau s February 21, 12 2008 report. See AR at 283 (Dr. Tyau reported that there is tenderness to [the] 13 [fistulotomy] site but it is healed 100% now ). In addition, the objective medical 14 evidence corroborates the ALJ s finding that plaintiff s condition was not 15 continuous and did not last twelve months or more. Indeed, the medical record 16 documents three distinct periods of anal complications lasting no more than twelve 17 months or more at a time: (1) the first period of anal pain lasted approximately four 18 months plaintiff first complained of rectal fistula in February 2, 2007, but by June 19 14, 2007 the fissure was completely healed after ointment and suppository 20 treatments (id. at 556); (2) even assuming plaintiff began experiencing anal pain 21 again in June 2007, the second period of anal pain lasted no more than five months 22 the fistula was rectified by October 25, 2007 after anal fistulotomy (id. at 271, 276); 23 and (3) the third period of anal complications lasted approximately four months on 24 March 25, 2008, Dr. Nguyen diagnosed plaintiff with anal ulcer, but by July 22, 25 2008, after sphincterotomy, Dr. Nguyen noted that the area is 85% healed and 26 opined that plaintiff s pain is not from [the] perianal area anymore but [rather is] 27 more musculoskeletal pain (id. at 471). Thus, the ALJ did not err in assessing the 28 opinions of Dr. Tyau and Dr. Nguyen, and substantial evidence supports the ALJ s 10 1 finding that plaintiff s anal complications did not last continuously for twelve 2 months or more. 3 4 5. Dr. Leslie Bruce-Lyle Plaintiff argues that the ALJ erred by finding that [p]laintiff s glaucoma is 5 non-severe , despite the fact that [Leslie Bruce-Lyle, M.D.] . . . stated [in the Vision 6 Impairment Questionnaire] very clearly that [p]laintiff s vision problem impairs his 7 night driving ability. JS at 7 (internal citations omitted). However, the ALJ read 8 and properly considered the totality of the Vision Impairment Questionnaire 9 completed by Dr. Bruce-Lyle. See AR at 18. Notwithstanding the effect plaintiff s 10 glaucoma has on his ability to drive at night (id. at 643), Dr. Bruce-Lyle found that 11 plaintiff has 20/20 corrected visual acuity in both eyes (id. at 640) and his prognosis 12 is good for both eyes (id. at 639-40). Thus, the ALJ properly assessed Dr. Bruce13 Lyle s opinion and did not err in finding plaintiff s glaucoma to be non-severe. 14 Accordingly, the court finds that the ALJ s evaluation of the medical evidence 15 is free from legal error and is supported by substantial evidence. 16 B. The ALJ Properly Assessed Plaintiff s Credibility 17 Plaintiff argues that the ALJ failed to properly consider his subjective 18 complaints and properly assess his credibility. See JS at 13-16. Specifically, 19 plaintiff maintains that the ALJ failed to properly consider his subjective statements 20 of record . . . as well as those of [his] wife. Id. at 13, 16. 21 22 23 1. The ALJ Must Provide Clear and Convincing Reasons for Discounting Plaintiff s Subjective Complaints Plaintiff carries the burden of producing objective medical evidence of his or 24 her impairments and showing that the impairments could reasonably be expected to 25 produce some degree of the alleged symptoms. Benton, 331 F.3d at 1040. But once 26 a plaintiff meets that burden, medical findings are not required to support the alleged 27 severity of pain. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc); 28 see also Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) ( [A] claimant 11 1 need not present clinical or diagnostic evidence to support the severity of his pain. ). 2 Under these circumstances, an ALJ can then reject a plaintiff s subjective 3 complaint only upon (1) finding evidence of malingering, or (2) expressing clear 4 and convincing reasons for doing so. Benton, 331 F.3d at 1040. The ALJ may 5 consider the following factors in weighing a plaintiff s credibility: (1) his or her 6 reputation for truthfulness; (2) inconsistencies either in the plaintiff s testimony or 7 between the plaintiff s testimony and his or her conduct; (3) his or her daily 8 activities; (4) his or her work record; and (5) testimony from physicians and third 9 parties concerning the nature, severity, and effect of the symptoms of which she 10 complains. Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). 11 Here, the ALJ did not find evidence of malingering. See generally AR at 15- 12 24. Thus, the ALJ s basis for rejecting plaintiff s credibility must rest on clear and 13 convincing reasons. See Benton, 331 F.3d at 1040. 14 15 2. The ALJ Properly Rejected Plaintiff s Subjective Complaints The court is persuaded that the ALJ provided clear and convincing reasons for 16 rejecting plaintiff s credibility. Four reasons guide the court s determination. 17 First, the ALJ found that the objective medical evidence does not support 18 plaintiff s alleged degree of disability. AR at 21-23. Apart from the unsubstantiated 19 opinion of Dr. Rios that plaintiff is permanently disabled due to rectal fistula and 20 severe degenerative disease of the lumbar spine (id. at 399) plaintiff cannot 21 identify any objective evidence that supports his claims of total disability. See 22 generally JS at 4-7, 13-16. The ALJ properly rejected Dr. Rios s opinion because 23 the medical records indicate that plaintiff s rectal fistula/fissure problems were 24 rectified by surgery. AR at 32; see supra Part V.A.2; Batson, 359 F.3d at 1195. 25 Furthermore, the objective evidence does not support Dr. Rios s statement that 26 plaintiff is totally and permanently disabled due to fractures and severe degenerative 27 disease in the lumbar spine. AR at 23, 399. Although plaintiff suffered from 28 degenerative changes in his lower back (id. at 22, 389-91, 619-23), Dr. Sophon 12 1 found that plaintiff possessed full range of motion of the cervical . . . [and] lumbar 2 spine (id. at 409), and does not have significant physical impairment or 3 functional limitations. Id. at 411. Dr. Sophon s opinion was based on a physical 4 examination, plaintiff s medical history, and review of the medical record. Id. at 5 407-12; see Magallanes, 881 F.2d at 751 (examining physician s opinion may 6 constitute substantial evidence if the nontreating physician relies on independent 7 clinical findings that differ from the findings of the treating physician (internal 8 quotation marks and citation omitted)). Certainly, a lack of objective evidence 9 supporting plaintiff s symptoms cannot be the sole reason for rejecting plaintiff s 10 testimony. Rollins v. Massanari, 261 F.3d 853, 856-57 (9th Cir. 2001). But it can 11 be one of several factors used in evaluating the credibility of plaintiff s subjective 12 complaints. Id. 13 Second, the ALJ properly discounted plaintiff s asserted limitations based 14 upon his inconsistent statements regarding his abilities. See Tonapetyan, 242 F.3d at 15 1148 (ALJ may engage in ordinary techniques of credibility evaluation, such as 16 considering inconsistencies in claimant s testimony). In this case, the ALJ found 17 plaintiff s insist[ence] on the use of a Spanish interpreter at the hearing to be 18 inconsistent with his ability to speak and understand English. AR at 20. The ALJ 19 found plaintiff incredible because: (1) plaintiff has reported earnings in the United 20 States as far back as 1970 and plaintiff admitted living in the United States 21 continuously since 1994; (2) plaintiff took and passed all of the naturalization tests 22 in English; and (3) plaintiff stated at the time of the initial filing that he can speak, 23 read, and write English. Id. Thus, this was a proper reason for rejecting plaintiff s 24 credibility, as the record is replete with evidence indicating that plaintiff s English is 25 not limited and plaintiff was not in need of an interpreter. See id. at 34, 37, 150, 26 154, 161. 27 Third, the ALJ rejected plaintiff s statements based upon Dr. Sophon s 28 observation during the examination on October 1, 2009 that plaintiff exaggerated his 13 1 symptoms of pain. AR at 22. This is a clear and convincing reason. See 2 Tonapetyan, 242 F.3d at 1148 (ALJ properly discredited claimant s subjective 3 complaints based on her tendency to exaggerate her symptoms). Here, the ALJ 4 noted Dr. Sophon s observation that plaintiff did not use full effort in performing 5 the grip strength test on the right. AR at 22, 409. Further, although plaintiff 6 complained of severe pain in his back and lower extremity, Dr. Sophon noted that 7 plaintiff [sat] and [stood] with normal posture ; there is no evidence of tilt or list ; 8 plaintiff [sat] comfortably during the examination ; plaintiff use[d] no assistive 9 devices to ambulate and [was] able to get on and off the examining table without 10 difficulty ; plaintiff s gait is normal ; and plaintiff was able to rise[] from a chair 11 without difficulty. Id. 12 Fourth, the ALJ properly discredited plaintiff s subjective complaints as 13 inconsistent with plaintiff s daily activities. See Reddick, 157 F.3d at 722 ( Only if 14 the level of activity were inconsistent with Claimant s claimed limitations would 15 these activities have any bearing on Claimant s credibility. ). Here, the ALJ found 16 that despite [plaintiff s] impairments, he has engaged in a somewhat normal level 17 of daily activities and interaction. Id. at 21. Further, the ALJ stated that plaintiff 18 described everyday activities that included walking, reading, being on the 19 computer, driving, shopping, watching television, and socializing (id. at 20), and 20 noted that the physical and mental capabilities requisite to performing [these] tasks 21 . . . as well as the social interactions replicate those necessary for obtaining and 22 maintaining employment. Id. at 21; see Gonzalez v. Sullivan, 914 F.2d 1197, 1201 23 (9th Cir. 1990) (holding that daily activities may not be relied upon to support an 24 adverse credibility determination unless the ALJ makes an explicit finding to the 25 effect that plaintiff s ability to perform those activities translated into the ability to 26 perform appropriate work activities on an ongoing and daily basis). Assuming, 27 however, that the ALJ erred by failing to specifically indicate how plaintiff s daily 28 activities translated to his ability to perform work activities, such error was harmless. 14 1 See Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1991) (harmless error rule 2 applies to review of administrative decisions regarding disability). As discussed 3 above, there remains substantial evidence supporting the ALJ s conclusions on . . . 4 credibility and the error does not negate the validity of the ALJ s ultimate 5 [credibility] conclusion. Carmickle v. Comm r, 533 F.3d 1155, 1162 (9th Cir. 6 2008) (citation omitted). 7 Accordingly, the court finds that the ALJ provided clear and convincing 8 reasons, supported by substantial evidence, for discounting plaintiff s subjective 9 complaints of pain and limitation. 10 11 3. The ALJ Properly Rejected Plaintiff s Wife s Statements Plaintiff argues that the ALJ failed to properly consider the statements made 12 by his wife ( Mrs. Gutierrez ) in a third-party function report on June 17, 2008. JS 13 at 13, 16. 14 [L]ay testimony as to a claimant s symptoms or how an impairment affects 15 ability to work is competent evidence and therefore cannot be disregarded without 16 comment. Stout v. Comm r, 454 F.3d 1050, 1053 (9th Cir. 2006) (internal 17 quotation marks, ellipses, and citation omitted); see Smolen v. Chater, 80 F.3d 1273, 18 1288 (9th Cir. 1996); see also 20 C.F.R. § 404.1513(d)(4) (explaining that 19 Commissioner will consider evidence from non-medical sources[,] including 20 spouses, parents and other caregivers, siblings, other relatives, friends, neighbors, 21 and clergy[,] in determining how a claimant s impairments affect his or her ability 22 to work); 20 C.F.R. § 416.913(d)(4) (same). The ALJ may only discount the 23 testimony of lay witnesses if he provides specific reasons that are germane to each 24 witness. Dodrill, 12 F.3d at 919; accord Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 25 2001) ( Lay testimony as to a claimant s symptoms is competent evidence that an 26 ALJ must take into account, unless he or she expressly determines to disregard such 27 testimony and gives reasons germane to each witness for doing so. ). 28 Here, the court finds, for two reasons, that the ALJ properly rejected Mrs. 15 1 Gutierrez s statements in the third-party function report. First, the ALJ properly 2 discounted Mrs. Gutierrez s statements based upon the fact that her statements are 3 not supported by the clinical or diagnostic medical evidence. AR at 21; see Bayliss 4 v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (inconsistency with medical 5 evidence constitutes germane reason); Lewis, 236 F.3d at 511 ( One reason for 6 which an ALJ may discount lay testimony is that it conflicts with medical evidence. 7 (citation omitted)); Vincent, 739 F.2d at 1395 ( The ALJ properly discounted lay 8 testimony that conflicted with the available medical evidence. ); but see Bruce v. 9 Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009) (improper to discredit testimony of 10 claimant s wife as not supported by medical evidence in record).3/ Second, because 11 the ALJ provided clear and convincing reasons for not finding plaintiff s statements 12 entirely credible (see supra Part V.B.2), the ALJ s rejection of Mrs. Gutierrez s 13 similar statements was proper. In particular, the ALJ discounted Mrs. Gutierrez s 14 statements because her answers are almost identical to [plaintiff s] answer[s] in his 15 function report. AR at 21; see Valentine v. Comm r, 574 F.3d 685, 694 (9th Cir. 16 17 18 19 20 21 22 23 24 25 26 27 28 3/ In so holding, the Ninth Circuit in Bruce relied on its prior decision in Smolen, which held that the ALJ improperly rejected the testimony of the claimant s family on the basis that medical records did not corroborate the claimant s symptoms because, in doing so, the ALJ violated the Commissioner s directive to consider the testimony of lay witnesses where the claimant s alleged symptoms are unsupported by her medical records. Bruce, 557 F.3d at 1116 (citing Smolen, 80 F.3d at 1289). The Ninth Circuit, however, did not address its earlier decisions in Bayliss, Lewis, and Vincent, in which, as discussed above, it expressly held that [o]ne reason for which an ALJ may discount lay testimony is that it conflicts with medical evidence. Lewis, 236 F.3d at 511 (citing Vincent, 739 F.2d at 1995); see also Bayliss, 427 F.3d at 1218. Accordingly, although Bruce is the Ninth Circuit s most recent pronouncement on this issue, given that no mention of Bayliss, Lewis, or Vincent was made in that case, and that none of the holdings in those earlier decisions concerning this issue were expressly reversed, it is unclear whether discounting lay witness evidence on the basis that it is not supported by the objective medical evidence in the record is no longer allowed. According, the court shall treat those earlier holdings as still being good law. 16 1 2009) (if an ALJ provides clear and convincing reasons for rejecting the claimant s 2 own subjective complaints, then the ALJ may properly discount similar statements 3 made by lay witnesses). 4 VI. 5 CONCLUSION 6 IT IS THEREFORE ORDERED that Judgment shall be entered 7 AFFIRMING the decision of the Commissioner denying benefits, and dismissing 8 this action with prejudice. 9 10 DATED: October 17, 2011 11 ______________________________________ 12 HON. SHERI PYM UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17
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