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Larry Zamarano v. Michael J. Astrue

May 20, 2011


The opinion of the court was delivered by: Patrick J. Walsh United States Magistrate Judge



Plaintiff appeals a decision by Defendant Social Security Administration ("the Agency"), denying his application for Supplemental Security Income ("SSI") benefits. He claims that the Administrative Law Judge ("ALJ") erred when he failed to: (1) take into account a treating physician's opinion that Plaintiff's medication caused side effects; and (2) obtain vocational expert testimony to determine if Plaintiff could work. (Joint Stip. at 2-8, 11-15.) Because the Agency's decision that Plaintiff was not disabled within the meaning of the Social Security Act is supported by substantial evidence, it is affirmed.


Plaintiff applied for SSI on January 31, 2008, alleging that he had been unable to work since June 1, 2007, because of rheumatoid arthritis and gastroesophageal reflux disease. (AR 88, 92.) The Agency denied his application initially and on reconsideration. (AR 37-49.) He then requested and was granted a hearing before an ALJ. (AR 52-53.) Plaintiff appeared with counsel and testified at the hearing on June 10, 2009. (AR 18-36.) On September 1, 2009, the ALJ issued a decision denying benefits. (AR 6-17.) Plaintiff appealed to the Appeals Council, which denied review. (AR 1-5.) He then commenced the instant action.


A. Side Effects

In his first claim of error, Plaintiff contends that the ALJ erred when he failed to consider an April 2009 chart note by treating physician Robert Schmitt that Plaintiff's pain medication caused side effects. (Joint Stip. at 3-7.) Plaintiff contends that this chart note constituted the doctor's opinion and, therefore, the ALJ was required to set forth specific and legitimate reasons for rejecting it, which he failed to do. (Joint Stip. at 3-4.) Alternatively, Plaintiff argues that the ALJ was required to contact Dr. Schmitt and have him explain what he meant by side effects in the chart note. (Joint Stip. at 6-7.) For the following reasons, the Court rejects these arguments.

Although the side effects of medication must be considered by an ALJ in determining disability, 20 C.F.R. § 416.929(c)(3)(iv); see also Social Security Ruling 96-8p, the claimant bears the burden of presenting objective evidence establishing that the side effects are impacting his ability to work. Miller v. Heckler, 770 F.2d 845, 849 (9th Cir. 1985) (holding claimant bears burden of presenting clinical evidence that narcotics use impaired ability to work). Plaintiff has failed to meet his burden.

Plaintiff submitted a disability report with his application for SSI in 2008 in which he stated that Flomax, a prostate medication he was taking, caused a runny nose. (AR 127.) After his application for benefits was initially denied by the Agency, Plaintiff submitted a new report, stating that Flomax made him dizzy.*fn1 (AR 117.)

A progress note from November 2007 states that Plaintiff experienced side effects "with hytrin.," presumably HydrocodoneAcetaminophen, but it does not specify what those side effects were. (AR 138, 141.) Plaintiff did not report any side effects to the consultative examiner, Dr. William Boeck, in May 2008. (AR 150-54.)

In March 2009, Plaintiff reported to his treating physician, Dr. Schmitt, that there were no "adverse effects" from his medications. (AR 179.) Six weeks later, on April 27, 2009, Plaintiff reported to Dr. Schmitt that he was experiencing side effects from his pain medications, though the doctor did not note what the side effects were. (AR 173.) Perhaps in response to this complaint, Dr. Schmitt changed Plaintiff's pain medication from Endocet to Tramadol. (AR 175.) The April 2009 note is the last note from Dr. Schmitt in the medical record.

Six weeks later, in June 2009, Plaintiff testified at the administrative hearing that he had taken Tramadol, Hydrocodone, and Oxycodone in the past and that he was currently taking Vicodin, Norco, Flomax, and Prilosec. (AR 26-28.) He did not claim to be experiencing any side effects from these medications or claim that side effects impaired his ability to work. (AR 24-35.) When specifically asked what symptoms, other than pain and lethargy, prevented him from working, Plaintiff testified that it was gastroesophogeal reflux. (AR 29.)

Plaintiff now claims that the ALJ erred when he did not adopt Dr. Schmitt's "opinion" that Plaintiff's side effects interfered with his ability to work. The record simply does not support Plaintiff's argument. The record of side effects is scant, at best. In 61 pages of medical records, side effects are mentioned three times: once in November 2007, when Plaintiff reported unspecified side effects; once in March 2009, when Plaintiff reported no side effects; and once six weeks later, in April 2009, when Plaintiff again reported unspecified side effects. (AR 173, 179.) To characterize these entries as doctors' opinions is simply misguided. Further, even if they were, they were grounded in Plaintiff's subjective claims, which the ALJ found were not credible. Thus, the ALJ was not required to credit Plaintiff's claimed side effects. See, e.g., Thomas v. Barnhart, 278 F.3d 947, 960 (9th Cir. 2002) (affirming ALJ's rejection of claimant's alleged side effects because claimant was not credible and the only evidence of side effects was her statements that they existed). For these reasons, the ALJ's failure to treat these cryptic entries as a treating physician's opinion was not error. See Osenbrock v. Apfel, 240 F.3d 1157, ...

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