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Dagmar Gloutak v. Michael J. Astrue

April 26, 2012

DAGMAR GLOUTAK, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Robert N. Block United States Magistrate Judge

ORDER AFFIRMING DECISION OF COMMISSIONER

The Court now rules as follows with respect to the five disputed issues listed in the Joint Stipulation.*fn1 //

A. Reversal is not warranted based on the ALJ's alleged failure to make a proper adverse credibility determination with respect to plaintiff (Disputed Issue No. 1).

Disputed Issue No. 1 is directed to the ALJ's adverse credibility determination with respect to plaintiff. (See Jt Stip at 3-16, 19-20.)

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). 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 v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc).

Here, one of the ALJ's findings was that plaintiff's medically determinable impairment (i.e., reactive airway disease) could reasonably be expected to cause the alleged symptoms; however, plaintiff's statements concerning the intensity, persistence and limiting effects of these symptoms were not credible to the extent they were inconsistent with the ALJ's assessment of plaintiff's residual functional capacity ("RFC"). (See AR 16.) *fn2

In support of this adverse credibility determination, the ALJ proffered several reasons. First, the ALJ noted that no treating or examining physician imposed more limitations than those accounted for in the ALJ's RFC assessment. (See AR 16.) Specifically, Dr. Potkin had written, consistent with the ALJ's RFC assessment, that plaintiff should have work restrictions precluding her from exposure to noxious fumes, dusts, and chemicals. (See AR 16, 473.) Moreover, although Dr. Hirsch had written that plaintiff was "temporarily totally disabled" from performing her usual and customary occupation as a hazardous materials specialist because it exposed her to pulmonary irritants, he had never opined that she was disabled from performing other work. (See AR 16, 506.) Dr. Kodama had also written that although plaintiff had a positive result on a methylcholine test indicating asthma and reactive airway disease, her test results were otherwise normal and that "specialists are having a difficult time understanding her disease process." (See AR 16, 461.) This first reason constituted a legally sufficient reason on which the ALJ could properly rely in support of his adverse credibility determination. See Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) (ALJ properly discounted subjective pain allegations where no doctor "expressed the opinion that [plaintiff] was totally disabled" nor implied that plaintiff "was precluded from all work activity") (emphasis in original).

The ALJ also noted that, although plaintiff had stated that she used a cane, no physician had prescribed it. (See AR 16, 136, 504.) This reason also constituted a legally sufficient reason on which the ALJ could properly rely in support of his adverse credibility determination. See Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) (ALJ may properly consider conflict between plaintiff's alleged need for cane and fact that none of his doctors had indicated that he needed an assistive device to walk).

Another reason cited by the ALJ in support of his adverse credibility determination was his observation that plaintiff, despite her complaints of shortness of breath and troubles with speaking, was able to testify fully and articulately at the administrative hearing. (See AR 17.) This fourth reason also constituted a legally sufficient reason on which the ALJ could properly rely in support of his adverse credibility determination. See Drouin v. Sullivan, 966 F.2d 1255, 1259 (9th Cir. 1992) (ALJ may properly rely on his own observations at the administrative hearing as one factor in support of an adverse credibility determination); see also Verduzco, 188 F.3d at 1090 (inclusion of ALJ's personal observations of plaintiff during hearing did not render the decision improper).

The next reason cited by the ALJ was the fact that plaintiff's activities of daily living included driving, some yard work, household chores, errands, and occasional cooking. (See AR 17; 136-38.) Under Ninth Circuit jurisprudence, this reason also constituted a legally sufficient reason, supported by the evidence of record, on which the ALJ could properly rely. See, e.g., Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002) (ALJ may properly rely on inconsistencies between claimant's testimony and claimant's daily activities); Morgan, 169 F.3d at 600 (ALJ may properly rely on contradictions between claimant's reported limitations and claimant's daily activities); Curry v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1991) (ability to take care of personal needs, prepare easy meals, do light housework and shop for some groceries "may be seen as inconsistent with the presence of a condition which would preclude all work activity"); see also Fair v. Bowen, 885 F.2d 597, 604 n.5 (9th Cir. 1989) (ordinary techniques of credibility evaluation apply in social security cases).

Finally, the ALJ noted that, although plaintiff had pointed to a 2006 pulmonary function report as indicating serious lung problems, the report in fact showed only that plaintiff had a positive methylcholine test indicating asthma and/or reactive airway disease, but that plaintiff was asymptomatic after taking albuterol. (See AR 17, 492.) This inconsistency between plaintiff's testimony and the objective medical evidence of record also constituted a legally sufficient reason on which the ALJ could properly rely in support of his adverse credibility determination. See, e.g., Morgan v. Comm'r of Soc. Sec., 169 F.3d 595, 600 (9th Cir. 1999) (ALJ may properly consider conflict between claimant's testimony of subjective complaints and objective medical evidence in the record); Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1998) (ALJ may properly rely on weak objective support for the claimant's subjective complaints); Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (ALJ may properly rely on lack of objective evidence to support claimant's subjective complaints); Nyman, 779 F.2d at 531 (noting that "a claimant's self-serving statements may be disregarded to the extent they are unsupported by objective findings").

The Court therefore finds and concludes that the ALJ did provide reasons in support of his adverse credibility determination here that were supported by substantial evidence in the record and were sufficiently specific to permit the Court to conclude that the ALJ did not arbitrarily discredit plaintiff's subjective testimony.*fn3

B. Reversal is not warranted based on the ALJ's alleged error in his severity determination (Disputed Issue No. 2).

Although the ALJ found that plaintiff had a "severe" impairment (i.e., reactive airway disease) at Step Two of the Commissioner's sequential evaluation process, plaintiff contends that the ALJ also should have found that her hoarseness, cough, and pain were severe impairments. (See Jt Stip at 20-23, 24-25.) However, it appears from the record that plaintiff's hoarseness, cough, and pain were merely symptoms of her reactive airway disease. (See AR 255, 433-35, 477-79.) Although the ALJ is required to consider these symptoms in determining the severity of plaintiff's reactive airway disease, see Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996), plaintiff has not even purported to cite objective ...


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