Durward J Bendt v. Commissioner of Social Security Administration, No. 8:2011cv01609 - Document 14 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. (ca)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 DURWARD J. BENDT, Plaintiff, 11 12 13 14 v. MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) Case No. SA CV 11-1609-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 ) and Supplemental Security Income ( SSI ). 21 He claims that the Administrative Law Judge ( ALJ ) erred when he: 22 (1) relied on the vocational expert s testimony that Plaintiff s 23 former jobs involved light work; (2) found that Plaintiff was not 24 credible; and (3) overlooked Plaintiff s physical and mental 25 impairments. 26 is affirmed. 27 28 For the reasons discussed below, the Agency's decision 1 II. 2 SUMMARY OF PROCEEDINGS In May 2008, Plaintiff applied for DIB and SSI, alleging that he 3 was disabled due to back pain, emotional problems, and blindness in 4 one eye. 5 application was denied initially and on reconsideration. 6 He then requested and was granted a hearing before an ALJ. 7 103.) 8 (AR 36-75.) 9 benefits. 10 (Administrative Record ( AR ) 131-37, 181, 189-96.) 13 (AR 94- On October 21, 2010, the ALJ issued a decision denying (AR 14-24.) Plaintiff appealed the decision to the Appeals Council, which denied review. (AR 1-3, 9.) III. A. (AR 76-84.) On August 13, 2010, he appeared with counsel for the hearing. 11 12 His This action followed. ANALYSIS The Vocational Expert s Testimony The vocational expert identified Plaintiff s former jobs at 14 Orchard Supply Hardware ( OSH ) as light work, though, as Plaintiff 15 explained, some of the duties he performed in those jobs--like 16 stocking 60 pound bags of concrete--entailed heavy lifting. 17 argues that the vocational expert ignored these duties in classifying 18 the jobs at OSH and that the ALJ in turn erred by relying on the 19 vocational expert s testimony to conclude that Plaintiff could work. 20 For the reasons explained below, the Court finds that the vocational 21 expert erred but that the error was harmless. 22 Plaintiff In classifying a claimant s job, a vocational expert is required 23 to consider all of the duties performed by the claimant on that job. 24 See Valencia v. Heckler, 751 F.2d 1082, 1086 (9th Cir. 1985). 25 vocational expert may not consider the least demanding aspects of the 26 job and assess a claimant s ability to perform the job based on those 27 minimally demanding duties. Id. 28 2 A 1 That is what the vocational expert did here. She classified 2 Plaintiff s jobs at OSH as a sales clerk and a retail manager as light 3 work--despite the fact that Plaintiff was required to lift as much as 4 60 pounds at a time in these positions--and concluded that Plaintiff 5 could still perform them. 6 at OSH, all of the employees, regardless of their title, were required 7 to perform all of the duties necessary to run the store, including 8 lifting heavy bags of materials. 9 failure to take this requirement into account in classifying (AR 68-70.) But, as Plaintiff testified, (AR 42-43.) 10 Plaintiff s past relevant work was error. 11 The vocational expert s 1086. 12 See Valencia, 751 F.2d at The vocational expert s error was harmless, however, because the 13 ALJ did not rely on it in determining that Plaintiff was not disabled. 14 (AR 23.) 15 as they are typically performed in the national economy. 16 This, he is allowed to do. 17 (9th Cir. 2001). 18 lists these jobs as light work. 19 DOT 185.167-046 (retail manager). 20 was inconsequential to the ALJ s ultimate determination that Plaintiff 21 could perform his past relevant work as it is generally performed in 22 the national economy and, therefore, the error was harmless. 23 Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).1 Rather, he concluded that Plaintiff could perform these jobs (AR 23.) See Pinto v. Massanari, 249 F.3d 840, 845 And the Dictionary of Occupational Titles ( DOT ) See DOT 290.477-014 (sales clerk); Thus, the vocational expert s error See 24 25 26 27 28 1 Plaintiff does not argue that he is incapable of performing the jobs as generally performed in the national economy. (Joint Stip. at 3-5, 7-9.) Rather, he focuses is on the fact that the vocational expert erred in classifying the work he did perform as light work. 3 1 2 B. The Credibility Finding The ALJ determined that Plaintiff was not credible because: 3 (1) the physical findings by the doctors contradicted Plaintiff s 4 claims of intense pain; (2) Plaintiff s daily activities were 5 inconsistent with his claims of disabling pain; and (3) Plaintiff was 6 able to work, despite his claimed impairments. 7 argues that the ALJ erred in doing so. 8 argument. 9 (AR 22-23.) Plaintiff There is no merit to this ALJs are tasked with judging the credibility of witnesses. In 10 doing so, they may rely on ordinary credibility evaluation techniques. 11 Tommasetti, 533 F.3d at 1039. 12 objective medical evidence of an impairment that reasonably could be 13 expected to produce the alleged symptoms, an ALJ may not discount the 14 testimony without providing specific, clear and convincing reasons. 15 Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). 16 Where, as here, a claimant produces The first reason cited by the ALJ for questioning Plaintiff s 17 credibility was that the intensity of his reported pain was not 18 consistent with the medical findings, particularly Dr. Enriquez s 19 findings. 20 claimant s testimony, see Osenbrock v. Apfel, 240 F.3d 1157, 1165-66 21 (9th Cir. 2001) (upholding ALJ s credibility determination in part 22 because medical evaluations revealed little evidence of disabling 23 abnormality), and is supported by the record. 24 example, Plaintiff testified that, due to problems with his neck and 25 back, he was unable to turn his head to the right. 26 Enriquez s examination of Plaintiff revealed that Plaintiff had no 27 limitation in range of motion in his neck. (AR 21.) This is a valid reason for questioning a 28 4 (AR 265-69.) (AR 58.) For But Dr. (AR 267 ( There is 1 tenderness in the cervical spine area, but no limitation in range of 2 motion. ).2) 3 Plaintiff has a different take on the ALJ s justification. He 4 argues that the ALJ was actually focusing on the fact that Plaintiff 5 did not have medical records to support his complaints, which 6 Plaintiff contends was an improper reason for rejecting his testimony 7 since he could not afford to pay for medical care. 8 11.) 9 rely on lack of medical records to question a claimant s testimony (Joint Stip. at Though the Court would agree that it is improper for an ALJ to 10 where the claimant is indigent and cannot afford to pay for care, see 11 Regennitter v. Comm r of Soc. Sec., 166 F.3d 1294, 1297 (9th Cir. 12 1999), that is not what happened here. 13 his decision that he was not allowed to consider the absence of 14 medical records in assessing Plaintiff s credibility since Plaintiff 15 was indigent and could not afford medical care. 16 review of the ALJ s decision reveals that the ALJ honored that rule. 17 The ALJ explicitly noted in (AR 22-23.) And a The ALJ also questioned Plaintiff s testimony that he was unable 18 to work because it was contradicted by Plaintiff s daily activities. 19 (AR 22.) 20 testimony, Tommasetti, 533 F.3d at 1039, and is supported by the 21 record. 22 meals, washed his clothes, drove, and shopped (three to four times a Again, this is a valid reason for questioning a claimant s Plaintiff testified that he cared for himself, made his own 23 24 25 26 27 28 2 There is an apparent contradiction in Dr. Enriquez s report regarding range of motion in Plaintiff s neck, referred to as the cervical spine by Dr. Enriquez. On page 267, he reports that there is no limitation. On page 268, he reports that there is. Obviously, the doctor made a mistake. Reading the report as a whole, however, the Court concludes that Dr. Enriquez s mistake was on page 268. What he meant to say on page 268 was that there was a limitation in the range of motion of the lumbar spine, which is what he reported on page 267. 5 1 week). 2 perform these activities on a regular basis if he was as impaired as 3 he claimed that he was. 4 (AR 189-96.) It does not make sense that Plaintiff could The ALJ also emphasized the fact that Plaintiff worked during the 5 period that he alleged that he was too incapacitated to work. (AR 6 22.) 7 forays into the working world were merely unsuccessful work attempts, 8 which should not be considered in assessing credibility. 9 at 12.) Plaintiff claims that the ALJ erred in doing so because these (Joint Stip. The record does not support Plaintiff s characterization of 10 this work. Plaintiff regularly and consistently worked for a 11 temporary employment service from 2006 through the first quarter of 12 2008. 13 filled out in June 2008, his regular, daily routine consisted of 14 getting up, eating breakfast, and going to the Temporary Labor office 15 to see if there was work available. 16 worked; if there wasn t, he went to the park. 17 would have been possible if Plaintiff was as impaired as he alleged at 18 the hearing, where he explained: (AR 146-48, 188.) As he explained in a function report that he (AR 189.) If there was, he (AR 189.) None of this 19 I have difficulty even sitting with my head supported. 20 lay in bed I have to, what I do most of the time during the 21 day is I m laying down in the back of the van listening to 22 AM radio, talk radio, I lay on my side, I have a pillow 23 between my legs and that s how I can stay in one place more 24 than 15 to 20 minutes. 25 If I (AR 58.) 26 The contrast between what Plaintiff claimed that he could do in 27 his testimony and function report and what he was actually doing was 28 so sharp that both could not be true. 6 Plaintiff could not be so 1 limited that he could not hold his head up even while sitting in a 2 chair with his head supported and still be able to drive, work two 3 days a week, shop, and wash clothes. 4 determine which version more accurately reflected reality. 5 decision that it was the one in which Plaintiff was not nearly as 6 disabled as he claimed was a valid choice and will not be disturbed on 7 appeal.3 8 (holding ALJ s interpretation of the evidence, if rational, will be 9 upheld even if other interpretations are possible). 10 11 C. It was the ALJ s job to His See Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005) Plaintiff s Mental Impairment Examining psychiatrist Ernest Bagner determined that Plaintiff 12 suffered from a mood disorder and alcohol abuse but that the only 13 impact these ailments would have on him would be a mild to moderate 14 limitation on his ability to handle normal stresses in the workplace. 15 (AR 251.) 16 this limitation. 17 Though the Court sees this as a closer call than Plaintiff s other 18 claims, it finds that there was no error. 19 The ALJ accepted Dr. Bagner s opinion with the exception of (AR 17.) Plaintiff challenges the ALJ s finding. In resolving a claim for social security benefits, ALJs are 20 called upon to evaluate the medical evidence. In doing so, they are 21 empowered to accept a doctor s opinion or reject it. They are also 22 23 3 24 25 26 27 The ALJ found that Plaintiff s claims that he could not walk for more than a mile and could not stand for more than 15 minutes were undermined by the fact that he did not use a cane, a walker, or a wheelchair. (AR 21-22.) The Court questions the logic of this finding. Obviously, not everyone who is unable to walk a mile or stand for 15 minutes requires the use of a cane, a walker, or a wheelchair. Ultimately, however, even ignoring this finding, the ALJ provided enough legitimate reasons to support his credibility finding. 28 7 1 free to accept parts of an opinion and reject other parts of it. 2 e.g., Magallanes v. Bowen, 881 F.2d 747, 753-54 (9th Cir. 1989) 3 (affirming ALJ s decision to accept treating doctor s objective 4 medical findings but reject the doctor s conclusion as to onset date 5 of disability). 6 contradicted by a non-examining doctor s opinion, an ALJ may reject it 7 for specific and legitimate reasons. 8 830-31 (9th Cir. 1995). 9 See, Where, as here, an examining doctor s opinion is Lester v. Chater, 81 F.3d 821, The ALJ rejected Dr. Bagner s view that Plaintiff would have mild 10 to moderate limitations in handling normal work stress because there 11 was no objective support for this finding, it was contradicted by the 12 reviewing psychiatrist, and Dr. Bagner believed that Plaintiff s 13 condition could be resolved in six months if he took medication and 14 avoided alcohol. 15 reasons for questioning a doctor s opinion. 16 242 F.3d 1144, 1149 (9th Cir. 2001) (affirming ALJ s decision to 17 reject treating doctor s opinion because it was not supported by 18 objective evidence); Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 19 1995) (upholding ALJ s rejection of treating doctor s opinion in favor 20 of reviewing doctor s opinion which was supported by evidence); Warre 21 v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) 22 ( Impairments that can be controlled effectively with medication are 23 not disabling for the purpose of determining eligibility for SSI 24 benefits. ). 25 record for the ALJ s finding regarding these points. (AR 17-18.) These are specific and legitimate See Tonapetyan v. Halter, Further, there does seem to be some support in the 26 The only evidence supporting Dr. Bagner s view that Plaintiff 27 would have trouble coping with stress in the workplace was Plaintiff s 28 subjective complaints to Dr. Bagner. 8 There are no reports in the file 1 indicating that Plaintiff ever had such issues. 2 does not appear that Dr. Bagner performed any testing to evaluate 3 Plaintiff s ability to cope with stress in the workplace. 4 51.) 5 (AR 248-51.) And it (AR 248- Further, Dr. Bagner s opinion was contradicted by reviewing 6 doctor Morgan. 7 mental impairment and would have no functional limitations in any 8 areas except for maintaining concentration, persistence, and pace, in 9 which he would be mildly limited. 10 Dr. Morgan opined that Plaintiff did not have a severe (AR 254-64.) Plaintiff argues that the ALJ was not allowed to accept the non- 11 examining doctor s opinion over the examining doctor s opinion, citing 12 Lester. (Joint Stip. at 22.) 13 Lester. In fact, in Lester, the Ninth Circuit noted that it was 14 proper to reject a treating or examining doctor s opinion based, in 15 part, on a non-examining doctor s opinion so long as there was other 16 evidence to support the ALJ s decision. 17 (citing Andrews, 53 F.3d at 1043; and Magallanes, 881 F.2d at 751-55). 18 Plaintiff also contends that the opinion of a non-examining This argument is not supported by Lester, 81 F. 3d at 831 19 doctor cannot amount to substantial evidence. That contention, too, 20 is incorrect. 21 substantial evidence if it is supported by other evidence and is 22 consistent with it. 23 that Plaintiff did not have a severe impairment and was not limited in 24 work-related function was supported by the record. 25 capable of caring for himself and was working before and after he 26 allegedly became disabled. 27 Plaintiff s alleged inability to handle workplace stress ever 28 manifested itself at any of his jobs. The opinion of a non-examining doctor can amount to Andrews, 53 F.3d at 1043. Dr. Morgan s opinion Plaintiff was Further, there is no evidence that 9 1 The third reason relied on by the ALJ to reject Dr. Bagner s 2 opinion was that Dr. Bagner believed that Plaintiff should be 3 significantly better in less than six months if he took medication 4 and avoided alcohol. 5 that can be controlled with medication is not disabling for purposes 6 of determining eligibility for benefits in social security cases. 7 Warre, 439 F.3d at 1006. 8 Bagner s remark- almost in passing--that Plaintiff s condition 9 should improve in six months if he took medication and stayed away (AR 17, 251.) Generally speaking, an impairment It is not clear to the Court that Dr. 10 from alcohol is sufficient to establish that Plaintiff s condition 11 would improve in that period such that any question regarding his 12 ability to cope should be ignored. 13 medication at the time he was seen by Dr. Bagner and it seems that the 14 ALJ put too much emphasis on Dr. Bagner s comment to conclude that 15 there was medication that would resolve any issues Plaintiff might 16 have in six months. 17 other reasons for discounting Dr. Bagner s view are specific and 18 legitimate and are supported by the record. 19 Plaintiff was not taking Overall, however, the Court finds that the ALJ s Plaintiff points out that an Agency employee who interviewed him 20 in connection with his application noted that he had difficulty 21 concentrating and went off on tangents. 22 In Plaintiff s view, this evidence supports his position that he 23 suffers from a severe mental impairment. 24 the employee s observations were consistent with Dr. Bagner s opinion, 25 the ALJ should not have rejected them. 26 The employee was a lay witness. 27 regarding Plaintiff s mental health. 28 the ALJ was empowered to reject them for reasons that were germane to (Joint Stip. at 20, 23-24.) Plaintiff argues that, since Again, the Court disagrees. He is not competent to offer opinions 10 As to any observations he made, 1 the employee. 2 Cir. 2006). 3 observations were inconsistent with Dr. Morgan s and Dr. Bagner s 4 opinions. 5 and assuming that the employee s observations were consistent with Dr. 6 Bagner s, they were contradicted by Dr. Morgan s and that is reason 7 enough to uphold the ALJ s finding on this issue. 8 9 Stout v. Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th The ALJ did so. (AR 18.) (AR 18.) He found that the employee s Even giving Plaintiff the benefit of the doubt In sum, a fair reading of this record demonstrates that Plaintiff had little or no trouble attending to his needs and coping with 10 people. Though he was arrested in 2006 for beating up his girlfriend, 11 Plaintiff explained at the administrative hearing that this was simply 12 a misunderstanding. 13 contrived, Plaintiff pointed out at the hearing that in the 14 intervening four years he was able to stay out of trouble and his 15 conviction for domestic violence was expunged. 16 there is little or no evidence in this record that Plaintiff suffered 17 from a severe mental impairment and, therefore, the ALJ s finding that 18 he did not is affirmed. 19 D. (AR 64.) Even assuming that this explanation was (AR 64-65.) Thus, Plaintiff s Physical Impairment 20 Finally, Plaintiff contends that he has a severe impairment in 21 his hands and arms, as documented by Dr. Enriquez, and that the ALJ 22 erred in failing to recognize this. 23 no support for this argument. 24 (Joint Stip. at 24-25.) There is When Dr. Enriquez examined Plaintiff, he noted bunching in 25 Plaintiff s bicep. 26 not impact Plaintiff s ability to occasionally lift and carry 20 27 pounds, even above his shoulder, and frequently handle, grasp, and 28 finger. (AR 268.) (AR 267.) He concluded, however, that this would Thus, whatever limitation Plaintiff s bunching 11 1 caused, according to Dr. Enriquez, it did not interfere with his 2 ability to perform the functions necessary for light work. 3 this claim is rejected. 4 5 6 IV. As such, CONCLUSION For the reasons set forth above, the Agency s decision is affirmed and the case is dismissed with prejudice. 7 IT IS SO ORDERED. 8 DATED: September 25, 2012 9 10 11 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S:\PJW\Cases-Soc Sec\BENDT, 1609\memo opinion and order.wpd 12
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