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Marcelino Gomez v. Michael J. Astrue


November 22, 2011


The opinion of the court was delivered by: Honorable Jacqueline Chooljian United States Magistrate Judge



On October 15, 2009, plaintiff Marcelino Gomez ("plaintiff") filed a Complaint seeking review of the Commissioner of Social Security's denial of plaintiff's application for benefits. The parties have consented to proceed before a United States Magistrate Judge.

This matter is before the Court on the parties' cross motions for summary judgment, respectively ("Plaintiff's Motion") and ("Defendant's Motion"). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; October 22, 2009, Case Management Order ¶ 5.

Based on the record as a whole and the applicable law, the decision of the Commissioner is AFFIRMED. The findings of the Administrative Law Judge are supported by substantial evidence and are free from material error.*fn1


A. Previously Adjudicated Applications

On December 20, 2001, plaintiff previously filed applications for Supplemental Security Income and Disability Insurance Benefits ("Prior Applications"). (Exhibit B at 1).*fn2

An administrative law judge examined the medical record and heard testimony from plaintiff (who was represented by counsel and assisted by a Spanish language interpreter), Dr. Lowell Sparks, a medical expert ("Dr. Sparks"), and a vocational expert on December 11, 2003 ("2003 Hearing"). (Exhibit A at 1-26).

On June 23, 2004, such administrative law judge issued an unfavorable decision denying benefits based upon the conclusion that plaintiff was not disabled at any time through the date of the decision ("Prior Decision"). (Exhibit B at 1-7).

B. Application In Issue

On July 31, 2006, plaintiff filed an application for Supplemental Security Income benefits ("Application in Issue"). (Administrative Record ("AR") 68,*fn3 199). Plaintiff asserted that he became disabled on June 21, 2006, due to problems with his back, right arm and right hand. (AR 7, 68, 210). A different administrative law judge examined the medical record and heard testimony from plaintiff (who was represented by counsel and assisted by a Spanish language interpreter) on April 16, 2009 ("Pre-Remand Hearing"). (AR 68).

On May 6, 2009, such administrative law judge determined that plaintiff was not disabled through the date of the decision ("Pre-Remand Decision"). (AR 68-75). The Appeals Council denied plaintiff's application for review of the PreRemand Decision. (AR 150).

As noted above, plaintiff filed the instant action on October 15, 2009. On December 17, 2009, pursuant to the parties' stipulation and for good cause shown, this Court remanded the case pursuant to sentence six of 42 U.S.C. § 405(g) for further administrative action; A transcript of the Pre-Remand Hearing could not be prepared because the tape recording of that hearing was entirely blank. (AR 153-55, 158). The Appeals Council, in turn, remanded the case to the current Administrative Law Judge ("ALJ") for a de novo hearing. (AR 156-58).

On August 20, 2010, the ALJ held a post-remand hearing ("Post-Remand Hearing") during which the ALJ heard testimony from plaintiff (who was represented by counsel and assisted by a Spanish language interpreter) and a vocational expert. (AR 19-49).

On October 19, 2010, the ALJ determined that plaintiff was not disabled through the date of the decision ("Post-Remand Decision"). (AR 7-13). Specifically, the ALJ found: (1) plaintiff suffered from the following severe impairments: obesity and degenerative disk disease of the lumbar and cervical spine (AR 10); (2) plaintiff suffered from the following non-severe impairments: hypertension and non-insulin dependent diabetes mellitus (AR 10); (3) plaintiff's impairments, considered singly or in combination, did not meet or medically equal one of the listed impairments (AR 10); (4) plaintiff retained the residual functional capacity to perform the full range of medium work as defined in 20 C.F.R. § 416.967(c) (AR 10); (5) plaintiff could perform his past relevant work as an industrial cleaner and lockstitch machine operator (AR 13); and (6) plaintiff's allegations regarding his limitations were not credible to the extent they were inconsistent with the ALJ's residual functional capacity assessment. (AR 11).

On April 26, 2011, the Court ordered the instant action reopened in accordance with the parties' stipulation. (Docket Nos. 15-16; Plaintiff's Motion at 3).


A. Sequential Evaluation Process

To qualify for disability benefits, a claimant must show that the claimant is unable to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of at least twelve months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the work claimant previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).

In assessing whether a claimant is disabled, an ALJ is to follow a five-step sequential evaluation process:

(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two.

(2) Is the claimant's alleged impairment sufficiently severe to limit claimant's ability to work? If not, the claimant is not disabled. If so, proceed to step three.

(3) Does the claimant's impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is disabled. If not, proceed to step four.

(4) Does the claimant possess the residual functional capacity to perform claimant's past relevant work? If so, the claimant is not disabled. If not, proceed to step five.

(5) Does the claimant's residual functional capacity, when considered with the claimant's age, education, and work experience, allow claimant to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not disabled. If not, the claimant is disabled.

Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920).

The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001) (citing Tackett); see also Burch, 400 F.3d at 679 (claimant carries initial burden of proving disability).

B. Standard of Review

Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of benefits only if it is not supported by substantial evidence or if it is based on legal error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006) (citing Flatten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 (9th Cir. 1995)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)).

To determine whether substantial evidence supports a finding, a court must "'consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.'" Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming or reversing the ALJ's conclusion, a court may not substitute its judgment for that of the ALJ. Robbins, 466 F.3d at 882 (citing Flatten, 44 F.3d at 1457).


A. Plaintiff Is Not Entitled to a Remand on His Claim Relating to Dr. Sparks' 2003 Testimony

1. Additional Pertinent Background

The Prior Decision stated the following with respect to Dr. Sparks' testimony at the 2003 Hearing:

Dr. Sparks . . . opined [that plaintiff] can lift and/or carry 20 pounds occasionally and 10 pounds frequently, stand and/or walk 2 hours out of an 8-hour workday, sit for 6 hours out of an 8-hour workday, must be able to change positions every hour, and his push/pull limitations are consistent with the lifting and carrying limitations. He is limited to occasional climbing of stairs, balancing, bending or stooping, kneeling, crouching, crawling, walking on uneven ground, walking no more than one block at a time, avoid extreme cold and working with vibrating equipment. As Dr. Spark's [sic] opinions appear well reasoned and consistent with objective medical records, they are considered highly probative and are given great weight. (Exhibit B at 4) (citing Exhibit A at 23-25).

During the Post-Remand hearing, the following exchange took place between plaintiff's attorney and the ALJ regarding Dr. Sparks' testimony from the 2003 Hearing:

ATTY: . . . . [L]ooking at the entire file, it appears as though [plaintiff] has consistently been found to be limited to anywhere from a light -- a limited light to a limited medium range of work --

ALJ: Okay.

ATTY: -- activity at all times herein. There's, there's one page that I have, and honestly, I don't know what decision it's from, I suspect it's from one of Judge Varni's decisions, where Dr. Sparks (Phonetic) testified, and I've only got the one page, and Dr. Sparks said basically, [plaintiff] was limited to 10 to 20 pounds, standing or walking only two hours out of an eight-hour day, and change positions every hour, gave a number of limitations [sic]. At any rate, if [plaintiff] were found to be limited to light work -- and I, I believe now, since 2008, we've got pretty significant documentation of a cervical spinal degenerative disc disease problem [sic]. There's an MRI that shows at least moderate levels of, I think, stenosis and so forth in the cervical spine. And [plaintiff] . . . has complained, Your Honor, of, of upper extremity problems, and shoulder problems, and so forth. Let me see if I can find that. It's May, May 15 of '08.

ALJ: The last Varni decision's not severe.

ATTY: Right, I understand. I, I don't know which, I don't know which decision this is from.

ALJ: Well, it's --

ATTY: Maybe it's even older than that.

ALJ: -- it's got to be older than that, because the last one says it's not severe.

ATTY: Right. So, it's either '04 or -- I don't know if that was even Judge Varni in 2004, but, but --

ALJ: Well, see, that one, that one would be moot, because there was no subsequent appeal from that, and --

ATTY: I, I, I understand, and --

ALJ: -- and that one's done.

ATTY: -- my only point is, is that, is that I -- I mean, I know this has been found to be different with subsequent Judge's [sic] decisions, but, but my point --

ALJ: Well, the same Judge.

ATTY: -- my point is, is that there was -- there were significant findings to where at least an ME found at one point that [plaintiff] was limited to less than light work activity.

ALJ: I understand that, I understand that. (AR 22-23).

The ALJ did not include the Prior Decision or the 2003 Hearing transcript as an exhibit in the instant record. Nor did the ALJ reference in the Post-Remand Decision either such document or, more specifically, Dr. Sparks' testimony.

2. Analysis

Plaintiff argues that he is entitled to a reversal or remand because the ALJ failed to consider the opinions expressed by Dr. Sparks at the 2003 Hearing. Implicit in plaintiff's argument, is that the ALJ was obligated to obtain a copy of the 2003 Hearing transcript and include it as an exhibit in the instant case.

The Court disagrees with both propositions.

First, plaintiff cites no legal authority for his suggestion that the ALJ was required to obtain a transcript of Dr. Sparks' 2003 testimony, which, as the ALJ noted at the Post-Remand Hearing, concerned plaintiff's prior application for benefits that had been denied and had not been appealed. (AR 22-23).*fn4

Second, to the extent plaintiff argues that the ALJ was obligated to develop the record by obtaining a transcript of the 2003 Hearing, such an argument lacks merit. An ALJ has an affirmative duty to assist the claimant in developing the record at every step of the sequential evaluation process. Bustamante, 262 F.3d at 954; see also Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (ALJ has special duty fully and fairly to develop record and to assure that claimant's interests are considered). The ALJ's duty is triggered only "when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence." Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) (citation omitted). Here, the ALJ's duty to develop the record further was not triggered. Plaintiff does not argue that the evidence of plaintiff's impairments is ambiguous, or that the record as a whole was inadequate to allow for proper evaluation of the evidence. To the contrary, the record contains reports from two consultative examining physicians on which the ALJ relied to assess plaintiff's residual functional capacity and determine disability. (AR 11) (citing Exhibit 3F [AR 332-36]; Exhibit 16F [AR 437-42]).

Finally, even assuming that the ALJ erroneously failed to obtain and add Dr. Sparks' testimony to the current record of exhibits, any such error was harmless as the ALJ was permitted to disregard such testimony without explanation in the decision. An ALJ must provide an explanation only when he rejects "significant probative evidence." See Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (citation omitted). Here, plaintiff does not demonstrate that the testimony of a medical expert who reviewed plaintiff's medical records in 2003 constitutes significant or probative evidence of plaintiff's limitations and/or medical condition beginning over two years later on June 21, 2006 (i.e., the onset date relevant to the Application in Issue).

In light of the foregoing, a remand or reversal on this basis is not warranted.

B. The ALJ Properly Evaluated Plaintiff's Credibility

Plaintiff contends that the ALJ inadequately evaluated the credibility of his subjective complaints. (Plaintiff's Motion at 6-10). The Court disagrees.

1. Pertinent Law

Questions of credibility and resolutions of conflicts in the testimony are functions solely of the Commissioner. Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006). If the ALJ's interpretation of the claimant's testimony is reasonable and is supported by substantial evidence, it is not the court's role to "second-guess" it. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).

An ALJ is not required to believe every allegation of disabling pain or other non-exertional impairment. Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007) (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). If the record establishes the existence of a medically determinable impairment that could reasonably give rise to symptoms assertedly suffered by a claimant, an ALJ must make a finding as to the credibility of the claimant's statements about the symptoms and their functional effect. Robbins, 466 F.3d 880 at 883 (citations omitted). Where the record includes objective medical evidence that the claimant suffers from an impairment that could reasonably produce the symptoms of which the claimant complains, an adverse credibility finding must be based on clear and convincing reasons. Carmickle v. Commissioner, Social Security Administration, 533 F.3d 1155, 1160 (9th Cir. 2008) (citations omitted). The only time this standard does not apply is when there is affirmative evidence of malingering. Id. The ALJ's credibility findings "must be sufficiently specific to allow a reviewing court to conclude the ALJ rejected the claimant's testimony on permissible grounds and did not arbitrarily discredit the claimant's testimony." Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004).

To find the claimant not credible, an ALJ must rely either on reasons unrelated to the subjective testimony (e.g., reputation for dishonesty), internal contradictions in the testimony, or conflicts between the claimant's testimony and the claimant's conduct (e.g., daily activities, work record, unexplained or inadequately explained failure to seek treatment or to follow prescribed course of treatment). Orn, 495 F.3d at 636; Robbins, 466 F.3d at 883; Burch, 400 F.3d at 680-81; SSR 96-7p. Although an ALJ may not disregard such claimant's testimony solely because it is not substantiated affirmatively by objective medical evidence, the lack of medical evidence is a factor that the ALJ can consider in his credibility assessment. Burch, 400 F.3d at 681.

2. Analysis

Separate and apart from the ALJ's discussion of plaintiff's English language abilities (which plaintiff contends did not provide a clear and convincing reason to discredit plaintiff's subjective complaints), the ALJ here cited several permissible reasons, supported by substantial evidence in the record, for rejecting plaintiff's complaints regarding the severity of his symptoms and limitations.

First, the ALJ properly discredited plaintiff's subjective complaints as inconsistent with plaintiff's daily activities. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002) (inconsistency between the claimant's testimony and the claimant's conduct supported rejection of the claimant's credibility); Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) (inconsistencies between claimant's testimony and actions cited as a clear and convincing reason for rejecting the claimant's testimony). For example, as the ALJ noted, contrary to plaintiff's allegations of alleged extreme pain, plaintiff testified at the post-remand hearing that he (1) did all household chores for his retired parents; (2) did some cooking; (3) had a current driver's license (although he did not drive); (4) did grocery shopping by walking two blocks to grocery stores with a wheeled basket; (5) did his own laundry; (5) attended church services on Saturdays and Sundays, sometimes two hours at a time; (6) attended bible reading classes on Mondays; and (7) would go door to door in his neighborhood as part of his church ministry, visiting ten to fourteen houses a day and spending up to an hour per visit. (AR 32-40).

Second, an ALJ may discredit a plaintiff's subjective symptom testimony in part based on conflicts with objective medical evidence. See Rollins, 261 F.3d at 857 ("While subjective pain testimony cannot be rejected on the sole ground that it is not fully corroborated by objective medical evidence, the medical evidence is still a relevant factor in determining the severity of the claimant's pain and its disabling effects.") (citation omitted). Here, as the ALJ noted, consultative medical evaluations in both 2006 and 2009 reflected normal range of motion in plaintiff's neck without any complaint of pain, and although plaintiff had mild to moderate limitation in lumbar spine motion, plaintiff had negative straight leg raising tests (supine and sitting) and no neurological deficits in the extremities.

(AR 332-36, 437-42). The ALJ reasonably concluded that such findings were inconsistent with an alleged inability to perform any work. (AR 11).

Accordingly, plaintiff is not entitled to a reversal or remand on this basis.


For the foregoing reasons, the decision of the Commissioner of Social Security is affirmed.


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