Joanne Wyerman v. Michael J Astrue, No. 5:2011cv01876 - Document 17 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jay C. Gandhi. IT IS ORDERED THAT judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits. (rp)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOANNE WYERMAN, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 16 Defendant. 17 ) Case No. ED CV 11-1876 JCG ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 18 Joanne Wyerman ( Plaintiff ) challenges the Social Security Commissioner s 19 20 ( Defendant ) decision denying her application for disability benefits. Three issues 21 are presented for decision here: 1. 22 whether the Administrative Law Judge ( ALJ ) properly held at step 1/ 23 five that Plaintiff can perform the occupations of packing machine operator, 24 security gate guard, and retail sales clerk, (see Joint Stip. at 3-12); 25 26 27 1/ At step five, the ALJ must identify specific jobs existing in substantial 28 numbers in the national economy that a claimant can perform despite his identified limitations. Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). 1 2. whether the ALJ properly assessed Plaintiff s credibility,2/ (see id. at 2 20-24); and 3 3. whether the ALJ properly and fully developed the record. (See id. at 4 17-19.) 5 The Court addresses and rejects Plaintiff s contentions below. 6 A. 7 Plaintiff first complains that the ALJ improperly concluded at step five that The ALJ s Step Five Determination 8 she could perform the duties of a security gate guard. (Joint Stip. at 6-7.) 9 Specifically, Plaintiff argues that this position conflicts with her residual functional 10 capacity prohibiting exposure to extreme temperatures. (Id.; see Administrative 11 Record ( AR ) at 20.) Under the Dictionary of Occupational Titles ( DOT ), the 12 position of security gate guard is partially spent outdoors (e.g., patrolling building 13 grounds and regulating traffic). See DOT 372.667-034. From this, Plaintiff reasons 14 that the position would require exposure to the weather frequently, including when 15 it is hot, cold, snowing, [and] raining and would thus conflict with her limitation 16 against extreme temperatures. (Joint Stip. at 7.) Plaintiff s claim is untenable for at 17 least two reasons. First, Plaintiff s conclusion that the position of security gate guard requires 18 19 exposure to extreme temperatures is contradicted by the very language of the DOT. 20 Under the DOT, the position is described as requiring frequent exposure to the 21 weather, but absolutely no exposure to [e]xtreme [c]old, [e]xtreme [h]eat, 22 [h]umid[ity], or [a]tmospheric [c]ond[itions]. See DOT 372.667-034. Second, as a matter of mostly common, exposure to weather does not 23 24 25 2/ Plaintiff also raises both as part of this issue and as a separate one (see Joint 26 Stip. at 12-14) the question of whether the ALJ properly determined that her activities of daily living establish an ability to perform substantial gainful activity. 27 For the sake of efficiency, the Court will address that daily living issue as part and 28 parcel of its discussion of the ALJ s credibility analysis. 2 1 necessarily imply exposure to extreme temperatures, in and of itself. Granted, 2 exposure to weather is an unavoidable fact of life, but extreme temperatures 3 suggests a much rarer occurrence. It thus appropriate that the DOT would 4 distinguish between the two notions. 5 Thus, Plaintiff s claim here is unconvincing, and the Court finds no error.3/ 6 B. 7 Plaintiff next asserts that the ALJ failed to present adequate reasons to reject Plaintiff s Credibility 8 her credibility. The Court disagrees. An ALJ can reject a plaintiff s credibility only upon (1) finding evidence of 9 10 malingering, or (2) expressing clear and convincing reasons for doing so. Benton 11 ex rel. Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). General findings 12 are insufficient; rather, the ALJ must identify what testimony is not credible and 13 what evidence undermines the claimant s complaints. Lester v. Chater, 81 F.3d 14 821, 834 (9th Cir. 1995). Here, the ALJ provided four clear and convincing reasons in support of his 15 16 credibility determination. First, the ALJ found that the objective medical evidence does not support 17 18 Plaintiff s alleged degree of disability. (AR at 21); see Rollins v. Massanari, 261 19 F.3d 853, 856-57 (9th Cir. 2001) (finding that a lack of supporting medical evidence 20 can be one, but not the only, reason for rejecting a claimant s testimony). 21 Specifically, the ALJ noted that while Plaintiff testified at length about debilitating 22 back pain, the medical evidence does not document any ongoing evaluation or 23 intensive treatment for back pain. (AR at 22; see also, AR at 34-38, 43.) Similarly, 24 25 3/ Plaintiff also asserts and Defendant concedes error regarding the ALJ s 26 finding that Plaintiff could perform the positions of packing machine operator and retail sales clerk. (Joint Stip. at 4-6, 8-9, 11.) But in light of the viability of the 27 security gate guard position, the Court finds the error harmless. See Carmickle v. 28 Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008). 3 1 there is no evidence suggesting the surgery that Plaintiff underwent in 2009 to 2 alleviate her hand pain was unsuccessful. (AR at 21; see AR at 35 (Plaintiff s 3 testimony regarding surgery).) 4 Second, the ALJ himself observed that Plaintiff arrived at the hearing with a 5 quad cane, which naturally would require the ability to grip firmly. (AR at 21; see 6 AR at 36 (Plaintiff s testimony about cane usage)); see also Orn v. Astrue, 495 F.3d 7 625, 639 (9th Cir. 2007) ( ALJ's personal observations may be used . . . in the 8 overall evaluation of the credibility of [a claimant s] statements ). That Plaintiff 9 was able to use such a cane thus discounts the alleged severity of her hand 10 impairments. 11 Third, the ALJ commented that the claims representative noticed no physical 12 problems with Plaintiff after interviewing her. (AR at 22; see AR at 144 (claims 13 representative s notes)); see also Bell v. Astrue, 2011 WL 4374992, at *6 (E.D. Cal. 14 Sept. 19, 2011) (discrediting claimant with observations from agency employee). In 15 particular, the representative remarked that Plaintiff was using orthopedic braces and 16 did not appear to have any difficulty using her hands. (AR at 144.) 17 Fourth, and finally, in light of Plaintiff s claim that she visits her doctor on a 18 monthly basis, the ALJ noted that the most recent medical evidence in the record is 19 dated June 21, 2010 that is, nearly six months before the date of the hearing. (AR 20 at 21; compare AR at 36 (Plaintiff s testimony) with AR at 267-71 (last medical 21 record).) Presumably, if Plaintiff did see her doctor on a monthly basis, one would 22 normally expect records from those six months. Such inconsistencies sully 23 Plaintiff s veracity. See Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) 24 (affirming use of ordinary techniques of credibility evaluation). 25 The Court does note, however, that the ALJ did, in fact, improperly find 26 Plaintiff s activities of daily living to be inconsistent with the alleged severity of her 27 conditions. Of these activities, the ALJ specifically noted Plaintiff driving and 28 caring for her nine-year-old son with Attention Deficit Hyperactivity Disorder. (See 4 1 AR at 21.) But daily activities like taking care of oneself, household tasks, hobbies, 2 school attendance, club activities, or social programs are not typically considered 3 substantial gainful activities. Lewis v. Apfel, 236 F.3d 503, 516 (9th Cir. 2001). 4 Such activities can only discredit a claimant if they are transferable to a work setting 5 and constitute a substantial portion of one s day. Fair v. Bowen, 885 F.2d 597, 603 6 (9th Cir. 1989). The ALJ provided no evidence and the Court cannot find any 7 that would suggest that either is the case here. Thus, there appears to be no basis for 8 discrediting Plaintiff on this ground. However, in light of the numerous valid 9 reasons provided by the ALJ, this error is harmless. See Carmickle, 533 F.3d at 10 1162. 11 Accordingly, for the above reasons, the Court finds that the ALJ provided 12 substantial evidence in support of his determination of Plaintiff s credibility. See 13 Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (the Court may not engage in 14 second-guessing if the ALJ s credibility finding is supported by substantial evidence 15 in the record). 16 C. The ALJ s Duty to Develop the Record 17 Lastly, Plaintiff complains that the ALJ failed to adequately develop the 18 record. (Joint Stip. at 18.) In support of her argument, Plaintiff cites the ALJ s 19 aforementioned statement that, though Plaintiff claims to see her primary care doctor 20 on a monthly basis, the most recent medical evidence in the record is dated June 21, 21 2010. (Id.; compare AR at 36 (Plaintiff s testimony) with AR at 267-71 (last 22 medical record).) According to Plaintiff, the ALJ should have sought additional 23 records upon noticing this discrepancy. (Joint Stip. at 18.) 24 However, an ALJ s duty to develop the record further is triggered only when 25 there is ambiguous evidence or when the record is inadequate to allow for proper 26 evaluation of the evidence. Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 27 2001) (emphasis added). Plaintiff does not allege that either is the case here. 28 Indeed, any such claim would be tenuous, considering that the missing documents, if 5 1 they exist, would constitute only six months worth of medical records (and notably, 2 still could not remedy Plaintiff s credibility which was discounted for three other 3 independent reasons). Hence, and all things considered, these records were not 4 crucial to the resolution of Plaintiff s claims. Accordingly, the Court determines that 5 the ALJ sufficiently fulfilled his duty to develop the record. 6 For the above reasons, the Court finds substantial evidence supported the 7 ALJ s decision that Plaintiff was not disabled. See Mayes, 276 F.3d at 458-59. 8 Based on the foregoing, IT IS ORDERED THAT judgment shall be entered 9 AFFIRMING the decision of the Commissioner denying benefits. 10 11 Dated: October 26, 2012 12 ____________________________________ 13 Hon. Jay C. Gandhi 14 United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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