Otoniel Leanos v. Michael J Astrue, No. 5:2011cv00121 - Document 15 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. 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 OTONIEL LEANOS, Plaintiff, 11 12 13 14 15 v. MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 11-121-PJW MEMORANDUM OPINION AND ORDER 16 17 18 I. INTRODUCTION Plaintiff appeals a decision by Defendant Social Security 19 Administration ( the Agency ), denying his application for Disability 20 Insurance benefits ( DIB ). 21 Judge ( ALJ ) erred when he concluded that Plaintiff was not credible 22 and that he could sit or stand for more than an hour. 23 discussed below, the Agency s decision is affirmed. 24 25 II. He claims that the Administrative Law For the reasons SUMMARY OF PROCEEDINGS In 2007, Plaintiff applied for DIB, alleging that he was disabled 26 due to a hernia, pain throughout his body, and depression. 27 strative Record ( AR ) 118-22, 146-47.) 28 application initially and on reconsideration. (Admini- The Agency denied the Plaintiff then 1 requested and was granted a hearing before an ALJ. 2 Plaintiff appeared with counsel and testified at the hearing on 3 November 16, 2009. 4 decision denying benefits. 5 Appeals Council, which denied review. 6 this action. (AR 33-71.) 8 9 The ALJ subsequently issued a (AR 13-25.) 7 III. A. (AR 85-86, 88-89.) Plaintiff appealed to the (AR 1-6.) He then commenced ANALYSIS The Credibility Finding The essence of Plaintiff s testimony was that he was unable to 10 work due to pain. 11 not credible. 12 doing so. 13 (AR 41-45.) ALJ did not err. (AR 19-20.) The ALJ found that this testimony was Plaintiff argues that the ALJ erred in For the reasons explained below, the Court finds that the 14 ALJs are tasked with judging the credibility of witnesses. 15 a claimant has produced objective medical evidence of an impairment 16 which could reasonably be expected to produce the symptoms alleged and 17 there is no evidence of malingering, an ALJ can only reject the 18 claimant s testimony for specific, clear, and convincing reasons. 19 Smolen v. Chater, 80 F.3d 1273, 1283-84 (9th Cir. 1996). 20 credibility determination, the ALJ may take into account ordinary 21 credibility evaluation techniques. 22 Where In making a Id. at 1284. The ALJ cited numerous reasons for questioning Plaintiff s 23 credibility. (AR 20.) He noted that Plaintiff testified at the 24 administrative hearing that he could not communicate in English but 25 communicated with one of the examining doctors in English and told 26 that doctor that he could read and write in English. 27 583, 586.) 28 testimony, Perez v. Astrue, 247 Fed. App x 931, 934 (9th Cir. 2007) (AR 20, 23, 38, This is a legitimate reason to question a claimant s 2 1 (upholding ALJ s discounting of claimant s alleged inability to speak 2 English based on observation of claimant at administrative hearing and 3 record evidence supporting finding claimant could speak English), and 4 is supported by the record. 5 The ALJ also questioned Plaintiff s testimony because he 6 complained that he suffered from diarrhea six or seven times a month 7 and, at the same time, alleged that his medications, which he took 8 daily, caused constipation. 9 reason to question the testimony and is supported by the record. 10 11 (AR 20.) Again, this is a legitimate (AR 47, 53.) The ALJ found that Plaintiff was not forthcoming with the 12 doctors, representing to one that a knee injury was work related 13 though the evidence contradicted that claim. 14 supports the ALJ s finding (AR 797) and is a legitimate basis for 15 discounting Plaintiff s testimony. 16 failed to disclose to examining psychiatrist Donald Feldman that he 17 was working. 18 (AR 739, 749) and is a legitimate reason for questioning Plaintiff s 19 testimony. (AR 20.) (AR 20.) The record The ALJ also noted that Plaintiff This finding, too, is supported by the record 20 The ALJ pointed out that Plaintiff: 21 [A]ppears to have a tendency to exaggerate the alleged 22 severity of his symptoms, as documented by clinical evidence 23 of Waddell s signs shown on clinical examinations, his 24 refusal to take medications or otherwise comply with 25 treatment instructions; progress notes making reference to 26 minimal objective findings and/or an absence of subjective 27 28 3 1 complaints elsewhere and within the same time[]frame alleged 2 as present. 3 (AR 20.) 4 These findings are supported by the evidence. Plaintiff was 5 examined by orthopedic surgeon Henry Bruce in December 2007. 6 93.) 7 debilitating pain were not supported by the objective medical 8 evidence. 9 Waddell signs, meaning his impairments were non-organic. (AR 583- In a nutshell, Dr. Bruce found that Plaintiff s complaints of (AR 20, 23.) He noted that Plaintiff exhibited positive (AR 588, 10 591.) 11 sit for a half hour but that he reported sitting for an hour to help 12 his kids with their homework and that he could drive for one-and-a- 13 half hours. 14 sitting for a half hour to give the doctor his history. 15 also explained that Plaintiff s constant complaints of pain and 16 difficulty performing various movements during the examination were 17 inconsistent with the ease in which he was able to perform these same 18 movements with other doctors. 19 Plaintiff participated in the examination rather reluctantly. 20 587.) 21 Dr. Bruce pointed out that Plaintiff claimed that he could only (AR 586.) The doctor noted that Plaintiff had no problem (AR 591.) (AR 588.) He Dr. Bruce reported that (AR The ALJ also relied on the fact that the treating and examining 22 doctors concluded that Plaintiff was capable of performing medium 23 level work, which contradicted Plaintiff s claims of impairment. 24 20.) 25 307-18, 331-39, 348, 583-93.) 26 refused to comply with treatment, another reason the ALJ questioned 27 Plaintiff s claims. 28 therapy because he stopped going after his first appointment. This finding, too, is supported by the evidence. (AR 20.) (AR (AR 259-78, So, too, is the finding that Plaintiff Plaintiff was discharged from physical 4 (AR 1 542.) 2 psychiatric impairment. 3 questioning Plaintiff s testimony and are supported by the record. 4 See Carmickle v. Comm r, Soc. Sec., 533 F.3d 1155, 1161 (9th Cir. 5 2008) ( Contradiction with the medical record is a sufficient basis 6 for rejecting the claimant's subjective testimony. ). 7 And he refused to take medication to treat his alleged (AR 566.) These are legitimate reasons for Finally, the ALJ noted that Plaintiff claimed at times that he 8 had a 12th-grade education but told one of his doctors that he had a 9 Bachelor s degree in electronics. (AR 23.) The record supports this 10 factual finding (AR 547, 586) and supports the ALJ s questioning of 11 Plaintiff s testimony. 12 Plaintiff disagrees. He argues, it seems, that, since the ALJ 13 did not conclude that Plaintiff was malingering, he was not empowered 14 to reject the testimony. 15 simply wrong. 16 claimant s testimony for specific, clear, and convincing reasons. 17 Smolen, 80 F.3d at 1283-84. 18 ability to speak English was not material to his disability claim and 19 because he did not earn any money in the job he neglected to disclose 20 to the examining psychiatrist, the ALJ should not have considered 21 these issues in the credibility analysis. 22 miss the point. 23 English in a proceeding to determine whether he can work -where an 24 inability to speak English impacts the number of jobs that he can 25 perform -is relevant to the credibility finding. 26 that a claimant has worked since his alleged disability onset date and 27 withholds that information from the professionals who are assessing (Joint Stip. at 25-26, 31-33.) Plaintiff is Assuming no malingering, an ALJ can still reject a Plaintiff also argues that, because his These arguments completely The fact that a claimant feigns an inability to speak 28 5 Likewise, the fact 1 whether he can work undermines the claimant s testimony. 2 arguments to the contrary are rejected. 3 Plaintiff s Under a separate argument regarding credibility, Plaintiff argues 4 that the ALJ erred when he determined that Plaintiff s reported daily 5 activities, like making a sandwich, driving his kids to school, and 6 reading the Bible, suggest that he could work. 7 35.) 8 Plaintiff is mixing up two arguments here. 9 that the ALJ rejected his testimony that he was disabled because he Again, the Court disagrees. (Joint Stip. at 34- In the first place, it appears that He seems to be arguing 10 could perform a limited number of daily activities. 11 not find that the ALJ rested his credibility determination on the fact 12 that Plaintiff can perform a limited number of daily activities. 13 Rather, the ALJ based the credibility finding on the laundry list of 14 inconsistencies catalogued above. 15 in part on these daily activities and that reliance had been 16 erroneous, the Court would still uphold the credibility finding for 17 the other reasons cited by the ALJ. 18 63 (explaining ALJ s reliance on invalid reason to question claimant s 19 testimony is harmless error if other, valid reasons for questioning 20 credibility amount to substantial evidence). 21 The Court does Further, even if the ALJ had relied See Carmickle, 533 F.3d at 1162- The second part of Plaintiff s argument is that the ALJ 22 incorrectly assumed that Plaintiff s ability to perform limited 23 activities showed that he could perform the various functions 24 necessary to work. Again, the Court does not find that that is what 25 the ALJ was saying. Nor, assuming that it was, was such a finding 26 critical to his credibility analysis. 27 arguments are rejected. 28 6 For these reasons, these 1 B. The ALJ s Finding That Plaintiff Can Sit And Stand For More Than 2 One Hour 3 The ALJ determined that Plaintiff could perform light work, 4 without any limitation on sitting or standing. 5 claims that the ALJ erred in reaching this conclusion. 6 at 10-12.) 7 an hour and stand for ten minutes. 8 that, with these limitations, he is unable to perform light work. 9 (AR 18.) Plaintiff (Joint Stip. He points out that he testified that he can only sit for (Joint Stip. at 10-11.) He argues The only evidence supporting Plaintiff s claimed inability to sit 10 and stand is Plaintiff s testimony, which the ALJ found was not 11 credible, a finding this Court has upheld. 12 evidence supporting Plaintiff s contention here. 13 reading of the medical record suggests that Plaintiff was not 14 restricted in sitting or standing. 15 592, 595, 628-30, 781, 788.) 16 17 18 (AR Thus, there is no credible In fact, a fair 269, 272, 316-18, 336-37, For this reason, this claim is rejected. IV. CONCLUSION For the reasons set forth above, the Agency s decision is affirmed. 19 IT IS SO ORDERED. 20 DATED: November 17, 2011. 21 22 23 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 S:\PJW\Cases-Soc Sec\LEANOS, 121\memo opinion and order.wpd 7
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