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Carl Cribbs v. Michael J. Astrue

September 16, 2012

CARL CRIBBS,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THE COURT AFFIRM DENIAL OF BENEFITS AND ORDER JUDGMENT FOR COMMISSIONER

Plaintiff Carl Cribbs, by his attorneys, Law Offices of Jeffrey Milam, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits (DIB) under Title II of the Social Security Act and for supplemental security income ("SSI") pursuant to Title XVI of the Social Security Act (42 U.S.C. § 301 et seq.) (the "Act"). The matter is currently before the Court on the parties' cross-briefs, which were submitted, without oral argument, to the Honorable Sandra M. Snyder, United States Magistrate Judge. Following a review of the complete record and applicable law, the undersigned recommends that the Court affirm the Commissioner's denial of benefits.

I. Administrative Record

A. Procedural History

Plaintiff was insured under the Act through December 31, 2011. On November 7, 2007, Plaintiff applied for disability insurance benefits pursuant to Title II and supplemental security income ("SSI") under Title XVI. Plaintiff alleged disability beginning January 30, 2007. His claims were initially denied on March 6, 2008, and upon reconsideration, on July 24, 2008. On August 20, 2008, Plaintiff filed a timely request for a hearing. Plaintiff appeared and testified at a hearing on January 11, 2010. On January 29, 2010, Administrative Law Judge James P. Berry denied Plaintiff's applications. The Appeals Council denied review on February 23, 2011. On April 22, 2011, Plaintiff filed a complaint seeking this Court's review.

B. Administrative Record

Plaintiff's testimony. Plaintiff (born May 4, 1950) completed high school and attended truck driving school. He drove trucks in eleven western states for seventeen or eighteen years until he lost his license in 2007 because of high blood pressure and diabetes. He did not load or unload the trucks that he drove. Plaintiff thought he could have kept driving a truck if he had not failed the physical, but he also questioned whether he would be able to pull himself up to the seat. He did not think he could drive for a full eight-hour day or tarp a truck. Plaintiff expressed fear that his medication would cause him to fall asleep behind the wheel.

Plaintiff testified that he had breathing problems and that his legs, feet, and back hurt. Sometimes he felt dizzy when he stood up, causing him to fall on several occasions. He did not see well but thought he simply needed glasses. He attributed his foot pain to diabetes. Propping up his feet relieved the discomfort. His feet began to swell about twenty minutes after he began sitting in a chair with his feet down.

Plaintiff thought he had emphysema, based on a comment made by the surgeon who had removed his gallbladder a year and a half earlier. Walking fifteen feet into the kitchen required him to rest and catch his breath before he could eat.

Plaintiff testified that he could walk three blocks to the store but would have to rest on the way back. He could carry five or ten pounds at most. He thought that he could stand up for twenty minutes three or four times in a work day, but he could sit a lot, even if he did not elevate his feet.

Plaintiff spent his entire day in a recliner, watching television in a dark room. He lived with his niece and her husband, who performed most of the house and yard work. He occasionally washed dishes, but "it just [hurt] too long standing there." AR 38. He did his own laundry, sitting down while the clothes were in the washer and dryer. Plaintiff did not interact with his niece and her husband, stating that he preferred to be by himself. He denied experiencing crying spells. His only source of support was food stamps.

Adult disability report. Plaintiff reported that he was five feet, nine inches tall and weighed 290 pounds. His ability to work was limited by diabetes and shortness of breath. His current medications included Amben (high blood pressure), Glipizide (diabetes), and Metformin (diabetes). Side effects included sleepiness, dry mouth, and diarrhea.

Plaintiff later updated his report, adding that he experienced depression with poor concentration starting January 1, 2008, and that he had developed numbness in his hands and feet.

Attorney-prepared questionnaires. On December 8, 2007, Plaintiff completed a fatigue questionnaire on a form apparently prepared by his attorney. He indicated that his fatigue began when he started taking blood pressure medication. Plaintiff need to take breaks every ten minutes while walking. He napped about three hours each day. Despite his fatigue, Plaintiff could maintain concentration and attention to finish tasks.

At the same time, Plaintiff reported details of his fatigue on an exertional daily activities questionnaire prepared by his attorney. He added that his shortness of breath mandated frequent breaks and that his chronic diarrhea kept him close to the bathroom. Walking to the end of the block left him light-headed. He did his own grocery shopping and lifted grocery bags once or twice a week; vacuumed floors for one-half hour; and could drive about one-half hour. Plaintiff reported that he worked for ten minutes, then took a twenty-minute break. He slept twelve hours daily, including three one-hour naps.

Third-party adult function report. Plaintiff's niece, Jody Ellis, reported that Plaintiff washed dishes, watched television, took her dog outside, and helped with her eight-year-old grandson. On days that the child did not attend school, Plaintiff watched him and prepared a soup or sandwich lunch. Plaintiff frequently went outdoors and to the store. Although he could count change, Plaintiff was easily confused about money.

Plaintiff needed to be reminded to bathe. He became breathless easily. His impairments affected his ability to lift, squat, bend, walk, kneel, climb stairs, complete tasks, concentrate, understand, and follow instructions. Plaintiff had difficulty handling stress and was confused by changes in routine. He got along well with authority figures.

Adult function report. On April 24, 2008, Plaintiff reported that his daily activities included watching television, washing dishes, and taking the dog out. Sometimes he had trouble sleeping. He had no problem with personal care but needed to be reminded to shower. His cooking abilities had not changed. He went outside three times daily and drove a car. He was able to pay bills and count change. The only change in his activities was that he no longer drove a truck. On March 13, 2009, Plaintiff completed a substantially similar report.

Medical records. The Tulare Community Health Clinic provided continuing medical care for Plaintiff at regular intervals from April 4 through November 29, 2007. Ravi Kumar, M.D., diagnosed Plaintiff with morbid obesity, hypertension, metabolic syndrome, uncontrolled diabetes mellitus type 2, abnormal liver function tests, and dyslipoproteinemia, and prescribed glipizide, metformin, amlodipine and benazepril, and enteric-coated aspirin. Dr. Kumar also directed Plaintiff to follow an 1800-calorie ADA diet and get regular exercise. He noted that Plaintiff had uncontrolled diabetes and was noncompliant with his treatment. Random blood sugar tests at Plaintiff's follow-up appointments ranged from 144 to 269. In the course of treatment, Plaintiff stopped smoking. On April 4, 2007, Dr. Kumar noted that Plaintiff's truck driver's license had been suspended due to his hypertension.

An ultrasound performed on June 12, 2007, confirmed that Plaintiff had gallstones.

On February 19, 2008, agency consultant Emmanuel Fabella, M.D., administered a pulmonary function test.*fn1 He noted that Plaintiff had no obstructive lung disease and no evidence of restrictive lung disease.

On March 5, 2008, agency consultant Charles A. Fracchia, M.D., opined that Plaintiff could lift or carry fifty pounds occasionally and 25 pounds frequently; could sit, stand, or walk six hours in an eight-hour workday; and had unlimited ability to push and pull. In an associated case analysis, Dr. Fracchia opined that Plaintiff's major functional problem was obesity, but that he was capable of medium work.

On or about March 12, 2008, Plaintiff began treatment at Hillman Health Center, where he was treated by Chi Nguyen, M.D., and physician's assistant Christina Erwin. Erwin noted extreme obesity and blood sugar of 113. On March 26, 2008, after Plaintiff complained of depression, Dr. Nguyen prescribed Effexor, an antidepressant. Plaintiff's random blood sugar was 109. On August 13, 2009, Dr. Nguyen, who consistently noted that Plaintiff needed to reduce his weight, observed that Plaintiff needed to lose 130 pounds.

On May 1, 2008, Ms. Erwin completed a questionnaire prepared by Plaintiff's attorney. She indicated that Plaintiff's diagnoses included diabetes, depression, and high blood pressure. Erwin opined that Plaintiff could sit for eight hours, and stand or walk for two hours, in an eight-hour workday. Plaintiff was totally restricted from working in temperature extremes. Erwin opined that Plaintiff was not disabled and was capable of sedentary work.

On July 14, 2008, agency psychologist A. Middleton, Ph.D., performed the psychiatric review technique. He rejected Plaintiff's claim of disabling depression since Plaintiff's diagnosis was less than twelve months before. On an associated case analysis, Roger Fast, M.D. opined that Plaintiff's claims of shortness of breath lacked credibility in that they were attributable to his deconditioning and lack of compliance with diabetes treatment.

On September 2, 2008, surgeon Cesar Ramos, M.D., removed Plaintiff's gall bladder and repaired his umbilical hernia.

On June 4, 2009, Prudence Smith, M.D., evaluated the MRI administered after Plaintiff complained of back pain following a fall. Dr. Smith identified some degenerative spurring and mild disk space narrowing at L5-S1, but found no evidence of compression fracture or listhesis.

Vocational expert. Vocational expert Thomas Dachelet testified that, as listed in the DOT, truck driving was medium, semiskilled work, SVP 4. As Plaintiff performed his prior work, he was required to lift 100 pounds, making his prior job heavy work as Plaintiff had performed it.

For the first hypothetical question, the ALJ directed Dachelet to assume a 59-year-old individual with a twelfth grade education and Plaintiff's relevant work experience. The individual had a combination of severe impairments but retained the ability to lift and carry fifty pounds occasionally and 25 pounds frequently, and to stand, sit, and walk six hours each in an eight-hour work day. Dachelet opined that the hypothetical individual could perform the work of truck driving as described in the DOT but not as Plaintiff had previously performed it.

For the second hypothetical question, the ALJ directed Dachelet to assume the same individual described in question one except that the individual now retained the capacity to lift and carry a maximum of five to ten pounds, to stand and sit for a maximum total of eighty minutes, and to walk approximately three blocks. The hypothetical individual needed to elevate his lower extremities, became drowsy during the day, and needed to take a break or nap. The individual also had difficulty relating to and interacting with others. Dachelet opined that such a person could not perform Plaintiff's prior job or any other work.

II. Legal Standards

To qualify for benefits, a claimant must establish that he or she is unable to engage in substantial gainful activity because of a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 1382c (a)(3)(A). A claimant must demonstrate a physical or mental impairment of such severity that he or she is not only unable to do his or her previous work, but cannot, considering age, education, and work experience, engage in any other substantial gainful work existing in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989).

To encourage uniformity in decision making, the Commissioner has promulgated regulations prescribing a five-step sequential process for evaluating an alleged disability. 20 C.F.R. §§ 404.1520 (a)-(f); 416.920 (a)-(f). The process requires consideration of the following questions:

Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.

Step two: Does the claimant have a "severe" impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate.

Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is automatically determined disabled. If not, proceed to step four.

Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five.

Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled.

Lester v. Chater, 81 F.3d 821, 828 n. 5 (9th Cir. 1995).

The ALJ found that Plaintiff had not engaged in substantial gainful activity since the alleged onset date of January 30, 2007. His severe impairments were obesity and diabetes mellitus. Neither of these impairments met or medically equaled one of the impairments listed in 20 C.F.R. Part 404, Subpart P, App. 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926). Plaintiff had the residual functional ability to lift and carry 50 pounds occasionally and 25 pounds frequently, and to sit, stand, and walk six hours in an eight-hour work day. He was able to perform his past relevant work as a truck driver. Accordingly, the ALJ concluded that Plaintiff was not disabled.

III. Scope of Review

Congress has provided a limited scope of judicial review of the Commissioner's decision to deny benefits under the Act. In reviewing findings of fact with respect to such determinations, a court must determine whether substantial evidence supports the Commissioner's decision. 42 U.S.C. § 405(g). Substantial evidence means "more than a mere scintilla" (Richardson v. Perales, 402 U.S. 389, 402 (1971)), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir. 1975). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. The record as a whole must be considered, weighing both the evidence that supports and the evidence that detracts from the Commissioner's decision. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).

In weighing the evidence and making findings, the Commissioner must apply the proper legal standards. See, e.g., Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the ALJ's determination that the claimant is not disabled if the ALJ applied the proper legal standards, and if the ALJ's findings are supported by substantial evidence. See Sanchez v. Secretary of Health and Human Services, 812 F.2d 509, 510 (9th Cir. 1987). "Where the evidence as a whole can support either outcome, we may not substitute our judgment for the ALJ's." Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985).

As the Commissioner points out, the sparse record in this case provides little evidence to support Plaintiff's claim that he is disabled. Even the assistant to Plaintiff's own treating physician opined that he was not disabled. The medical records that Plaintiff submitted to the agency document a series of routine visits to Plaintiff's primary care physicians for ongoing care of common and treatable disorders: type 2 diabetes, high blood pressure, and obesity.

IV. Plaintiff's Credibility

In a disorganized and rambling discussion, Plaintiff asserts nine reasons why the ALJ erred in finding his testimony not fully credible. The Commissioner counters that Plaintiff's arguments have no merit. This Court agrees with the Commissioner.

An ALJ is not "required to believe every allegation of disabling pain" or other non-exertional requirement. Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007), quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). But if he or she decides to reject a claimant's testimony after a medical impairment has been established, the ALJ must make specific findings assessing the credibility of the claimant's subjective complaints. Ceguerra v. Secretary of Health and Human Services, 933 F.2d 735, 738 (9th Cir. 1991). See also Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991). "[T]he ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints." Lester, 81 F.3d at 834, quoting Varney v. Secretary of Health and Human Services, 846 F.2d 581, 584 (9th Cir. 1988). He or she must set forth specific reasons for rejecting the claim, explaining why the testimony is unpersuasive. Orn, 495 F.3d at 635. See also Robbins v. Social Security Administration, 466 F.3d 880, 885 (9th Cir. 2006). The credibility findings must be "sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit claimant's testimony." Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002).

When weighing a claimant's credibility, the ALJ may consider the claimant's reputation for truthfulness, inconsistencies in claimant's testimony or between her testimony and conduct, claimant's daily activities, claimant's work record, and testimony from physicians and third parties about the nature, severity and effect of claimant's claimed symptoms. Light v. Social Security Administration, 119 F.3d 789, 792 (9th Cir. 1997). The ALJ may consider "(1) ordinary techniques of credibility evaluation, such as 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; and (3) the claimant's daily activities." Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008), quoting Smolen v. Chater, 80 F.3d 1273 (9th Cir. 1996). If the ALJ's finding is supported by substantial evidence, the Court may not second-guess his or her decision. Thomas, 278 F.3d at 959.

The Ninth Circuit has summarized the applicable standard:

[T]o discredit a claimant's testimony when a medical impairment has been established, the ALJ must provide "'specific cogent reasons for the disbelief.'" Morgan, 169 F.3d [595,] 599 [9th Cir. 1999] (quoting Lester, 81 F.3d at 834). The ALJ must "cit[e] the reasons why the [claimant's] testimony is unpersuasive." Id. Where, as here, the ALJ did not find "affirmative evidence" that the claimant was a malingerer, those "reasons for rejecting the claimant's testimony must be clear and convincing." Id. Social Security Administration rulings specify the proper bases for rejection of a claimant's testimony . . . An ALJ's decision to reject a claimant's testimony cannot be supported by reasons that do not comport with the agency's rules. See 67 Fed.Reg. at 57860 ("Although Social Security Rulings do not have the same force and effect as the statute or regulations, they are binding on all components of the Social Security Administration, . . . and are to be relied upon as precedent in adjudicating cases."); see Daniels v. Apfel, 154 F.3d 1129, 1131 (10th Cir. 1998) (concluding the ALJ's decision at step three of the disability determination was contrary to agency rulings and therefore warranted remand). Factors that an ALJ may consider in weighing a claimant's credibility include reputation for truthfulness, inconsistencies in testimony or between testimony and conduct, daily activities, and "unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment." Fair, 885 F.2d at 603; see also Thomas, 278 F.3d at 958-59.

Orn, 495 F.3d at 635.

Judge Berry found that Plaintiff's impairments could reasonably be considered to cause Plaintiff's alleged symptoms, but that Plaintiff's testimony about the intensity, persistence, and limiting effects of his symptoms were not fully credible. In a lengthy discussion at AR 21-22, the ALJ carefully documented medical evidence in the record that revealed (1) Plaintiff's repeated failure to monitor his blood sugar despite repeated direction by his physicians and repeatedly being provided with blood sugar meters and test strips; (2) Plaintiff's failure to exercise, watch his diet, and lose weight; (3) MRI evidence establishing only minor disc space narrowing in Plaintiff's back; (4) a pulmonary function test that revealed no obstructive lung disease nor restrictive lung disease; and (5) repeated medical notes that Plaintiff's lungs were not obstructed. The ALJ accepted Plaintiff's April 2008 adult function report. He wrote:

A careful review of the record does not support the severity of Plaintiff's alleged limitations. During testimony, the claimant admitted that he could have continued as a truck driver in 2007 if he had passed his physical examination and obtained DMV approval to keep his Class A driver's license. In addition, his testimony that he takes his medications to control his diabetes as required is contradicted by numerous medical records documenting his non-compliance with prescribed medications and treatment from at least November 2007 through November 2009, even though he was continually advised of the importance of compliance for his overall health. Further, records and the claimant's own testimony do not support his ...


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