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Mason v. Astrue

May 11, 2009


The opinion of the court was delivered by: Honorable Oswald Parada United States Magistrate Judge


The Court*fn1 now rules as follows with respect to the disputed issues listed in the Joint Stipulation ("JS").*fn2


As reflected in the Joint Stipulation, the disputed issues which Plaintiff is raising as the grounds for reversal and/or remand are as follows:

1. Whether the ALJ properly assessed Plaintiff's credibility;

2. Whether the ALJ properly rejected Plaintiff's medication side effects;*fn3

3. Whether the ALJ's residual functional capacity ("RFC") finding is supported by substantial evidence;

4. Whether the ALJ failed to consider Plaintiff's obesity in assessing his functional limitations;*fn4

5. Whether the ALJ properly determined that Plaintiff could perform his past relevant work; and

6. Whether the ALJ properly developed the record concerning Plaintiff's mental and vision impairments.*fn5

(JS at 2.)


Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether the Commissioner's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means "more than a mere scintilla" but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed. 2d 842 (1971); Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (citation omitted). The Court must review the record as a whole and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, the Commissioner's decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).


A. The ALJ Properly Evaluated Plaintiff's Credibility

Plaintiff contends the ALJ failed to properly assess Plaintiff's credibility by failing to provide clear and convincing reasons for rejecting his subjective pain testimony. (JS at 11-12, 16-17.) Specifically, Plaintiff claims the ALJ improperly rejected Plaintiff's testimony regarding his deteriorating vision, disabling knee pain, and difficulty to stand. (Id.)

1. Applicable Law

An ALJ's credibility finding must be properly supported by the record and sufficiently specific to ensure a reviewing court that the ALJ did not arbitrarily reject a claimant's subjective testimony. Bunnell v. Sullivan, 947 F.2d 341, 345-47 (9th Cir. 1991). An ALJ's assessment of pain severity and claimant credibility is entitled to "great weight." Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1986). When, as here, an ALJ's disbelief of a claimant's testimony is a critical factor in a decision to deny benefits, the ALJ must make explicit credibility findings. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981); see also Albalos v. Sullivan, 907 F.2d 871, 874 (9th Cir. 1990) (an implicit finding that claimant was not credible is insufficient).

Under the "Cotton test," where the claimant has produced objective medical evidence of an impairment which could reasonably be expected to produce some degree of pain and/or other symptoms, and the record is devoid of any affirmative evidence of malingering, the ALJ may reject the claimant's testimony regarding the severity of the claimant's pain and/or other symptoms only if the ALJ makes specific findings stating clear and convincing reasons for doing so. See Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986); see also Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993); Bunnell, 947 F.2d at 343.

To determine whether a claimant's testimony regarding the severity of his symptoms is credible, the ALJ may consider, inter alia, the following evidence:

(1) ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; (3) the claimant's daily activities; and (4) testimony from physicians and third parties concerning the nature, severity, and effect of the claimant's symptoms. Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); see also Smolen, 80 F.3d at 1284.

Social Security Ruling ("SSR") 96-7p further provides factors that may be considered to determine a claimant's credibility such as: 1) the individual's daily activities; 2) the location, duration, frequency, and intensity of the individual's pain and other symptoms; 3) factors that precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms; 5) treatment, other than medication, the individual receives or has received for relief of pain or other symptoms; 6) any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and 7) any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms. SSR 96-7p.

2. Analysis

Here, the ALJ discounted Plaintiff's subjective complaints based on his daily activities and the lack of medical evidence or treatment in the record. (Administrative Record ("AR") at 21.) Specifically, the ALJ found that Plaintiff's reported daily activities were inconsistent with his allegations of disabling pain. (Id.) As the ALJ noted in the body of his decision, Plaintiff described a "wide variety of daily activities" to the consultative examiner, Dr. Rocely Ella-Tamayo.*fn6 (AR at 21, 163-68.) Dr. Ella-Tamayo considered Plaintiff to be a "good historian." (Id. at 163.) Regarding Plaintiff's daily activities, Dr. Ella-Tamayo stated, "He takes the bus to go out. He does housework, cooking and cleaning, goes to the store, does yard work and rests in between, listens to the radio and goes to the doctor." (Id. at 164.) Additionally, in an "Exertional Daily Activities Questionnaire," Plaintiff confirmed that on an average day, he does "shopping, cleaning, cooking, [and] yard work." (Id. at 99.) The Court finds that the ALJ could properly rely on Plaintiff's daily activities, such as, inter alia, completing household chores, yard work, cooking, cleaning, and shopping, to support his adverse credibility determination. See, e.g., Thomas, 278 F.3d at 958-59 (ALJ may properly consider inconsistencies between claimant's testimony and claimant's daily activities); Morgan v. Apfel, 169 F.3d 595, 599-600 (9th Cir. 1999) (ALJ may properly rely on contradictions between claimant's reported limitations and claimant's daily activities); Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1998) (daily activities inconsistent with total disability undermined subjective testimony of disabling pain); Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (ALJ may properly rely on claimant's daily activities, including ability to drive); Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989)(ALJ may properly rely on daily activities inconsistent with claim of disabling pain); SSR 96-7p.

Notably, Plaintiff reported that he experienced difficulty with his vision and high blood pressure while performing his daily activities. (AR at 99.) Additionally, at the hearing, Plaintiff testified that he became unable to work at his previous job due to knee pain and his inability to stand and walk up stairs. (Id. at 191, 207.) Plaintiff further stated that he can only sit for twenty to thirty minutes before he needs to straighten his legs out. (Id. at 199-201). As to his vision, Plaintiff testified that he could only see blurry objects in his right eye. (Id. at 196-97.) In his left eye, Plaintiff stated that his vision was worsening as he is unable to read fine print or see far away. (Id. at 196-98, 213-15.) While Plaintiff provided testimony describing his knee pain and vision problems, Plaintiff never stated that his daily activities were more limited than what he described in his daily activities questionnaire or conveyed to Dr. Ella-Tamayo. Moreover, the ALJ opined, "[Plaintiff's daily] activities involve significant amounts of physical and mental functioning. Certainly, if the claimant suffered from disabling symptoms, he would not be able to perform all these activities." (Id. at 21.) Accordingly, the ALJ properly found that Plaintiff's daily activities were inconsistent with his allegations of disabling pain. (Id.)

Next, the ALJ based his adverse credibility determination on the findings of the medical sources*fn7 and the lack of medical treatment in the record. (Id.) To substantiate this finding, the ALJ relied in part on an ophthalmological examination performed by Dr. Dang at La Palma Ophthalmology on July 22, 2005. (AR at 20, 129-32.) Dr. Dang concluded that Plaintiff has Duane Retraction Syndrome in his right eye. (Id. at 132.) Dr. Dang indicated that Plaintiff would require glasses and suggested that Plaintiff schedule a follow-up visit at the ophthalmology clinic. (Id.) Based upon Dr. Dang's findings, Plaintiff's treating physician, Dr. Joe Caceres, noted that Plaintiff did not require surgery for his vision problems but should visit the ophthalmological clinic for a follow-up visit. (Id. at 145.) Additionally, Dr. Ella-Tamayo found that Plaintiff had blindness of the right eye with limited extraocular muscle movement. (Id. at 165, 167.) Despite the above findings, there is no evidence in the medical record suggesting Plaintiff ever visited the ophthalmological clinic. Moreover, Drs. Dang, Ceceres, and Ella-Tamayo did not provide any other visual limitations on Plaintiff's functional abilities. Additionally, on September 16, 2005, Dr. Chiang-Chien completed a consultation request and found that Plaintiff had no constriction of his visual fields. (Id. at 147-48.) Dr. Chiang-Chien stated, "Based on what we have, the claimant has no significant functional limitation." (Id. at 148.) Finally, a visual ...

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