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Vincent J. Moore v. Michael J. Astrue


February 14, 2013


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


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


As reflected in the Joint Stipulation, the disputed issue raised by Plaintiff as the ground for reversal and/or remand is whether the Administrative Law Judge ("ALJ") properly considered Plaintiff's testimony. (JS at 4.)


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." Perales, 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's Findings.

The ALJ found that Plaintiff has the following severe impairments: chronic left shoulder pain with impingement secondary to torn rotator cuff, hypertension, obesity, chronic obstructive pulmonary disease ("COPD"), hepatitis C, and edema. (Administrative Record ("AR") at 24.)

The ALJ concluded that Plaintiff retains the residual functional capacity ("RFC") to perform a range of light work with the following limitations: lift and/or carry twenty pounds occasionally and ten pounds frequently; stand and/or walk six hours of an eight-hour workday with normal breaks; sit for six hours of an eight-hour workday, with normal breaks; occasionally bend, stoop, crawl, balance, and climb ramps and stairs; never climb ladders, ropes, and scaffolds; never raise his left upper extremity above shoulder level; avoid unprotected heights, excessive hot or cold temperature change, and excessive exposure to air pollution; and have only occasional interaction with co-workers, supervisors, and the public. (Id. at 25.)

To determine the extent to which Plaintiff's limitations eroded his ability to perform the unskilled light occupational base, the ALJ asked the vocational expert ("VE") whether jobs exist in the national economy for an individual with Plaintiff's age, education, work experience, and RFC. (Id. at 21.) Based on the testimony of the VE, the ALJ determined Plaintiff could make a successful adjustment to other work that exists in significant numbers in the national economy such as toy assembler (Dictionary of Occupational Titles ("DOT") No. 731.678-034; and cleaner II (DOT No. 323.687-014). (AR at 29.) Thus, the ALJ determined that Plaintiff has not been under a disability as defined by the Social Security Act. (Id.)

B. The ALJ Properly Evaluated Plaintiff's Credibility.

Plaintiff asserts that the ALJ failed to provide clear and convincing reasons for rejecting his subjective complaints, did not specifically identify the testimony he found not to be credible, and improperly relied only on the fact that the medical evidence failed to support Plaintiff's allegations. (JS at 7-14.) The Court disagrees.

1. Legal Standard.

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).

Once a claimant has presented medical evidence of an underlying impairment which could reasonably be expected to cause the symptoms alleged, the ALJ may only discredit the claimant's testimony regarding subjective pain by providing specific, clear, and convincing reasons for doing so. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). 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 may properly consider "testimony from physicians . . . concerning the nature, severity, and effect of the symptoms of which [claimant] complains," and may properly rely on inconsistencies between claimant's testimony and claimant's conduct and daily activities. See, e.g., Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002) (citation omitted). An ALJ also may consider "[t]he nature, location, onset, duration, frequency, radiation, and intensity" of any pain or other symptoms; "[p]recipitating and aggravating factors"; "[t]ype, dosage, effectiveness, and adverse side-effects of any medication"; "[t]reatment, other than medication"; "[f]unctional restrictions"; "[t]he claimant's daily activities"; "unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment"; and "ordinary techniques of credibility evaluation," in assessing the credibility of the allegedly disabling subjective symptoms. Bunnell, 947 F.2d at 346-47; see also Soc. Sec. Ruling 96-7p; 20 C.F.R. 404.1529 (2005); Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) (ALJ may properly rely on plaintiff's daily activities, and on 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, lack of treatment, daily activities inconsistent with total disability, and helpful medication); Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995) (ALJ may properly rely on the fact that only conservative treatment had been prescribed); Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (ALJ may properly rely on claimant's daily activities and the lack of side effects from prescribed medication).

2. Analysis.

As stated by the ALJ, Plaintiff alleged his impairments "caused difficulty with standing and walking due to shortness of breath and edema in his legs; that the pain caused difficulty concentrating and focusing and a poor work history; and he had no stamina." (AR at 26 (citations omitted).)

In his decision, the ALJ generally discounted Plaintiff's credibility as follows:

After careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment. (Id.)

The ALJ then provided additional clear and convincing reasons for the discounting of Plaintiff's subjective complaints.

First, with regard to Plaintiff's hypertension, the ALJ noted that the impairment was "treated successfully with medications." (Id. at 26 (citations omitted).) He also noted that according to the treating physician, Plaintiff's prognosis for that impairment was "excellent in 2007." (Id. (citation omitted).) The ALJ also commented that Plaintiff's edema and COPD were both under control with medications, with "occasional flare ups that would not cause the claimant . . . more than minimal limitations in the ability to perform basic work activities." (Id. (citations omitted).). As such, because Plaintiff's hypertension, edema, and COPD could be controlled effectively with medication, his complaints that his COPD and edema caused more than minimal limitations with regard to standing and/or walking were properly discounted. Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (impairments that can be controlled effectively with medication are not disabling for purposes of eligibility for benefits); Odle v. Heckler, 707 F.2d 439, 440 (9th Cir. 1983) (where claimant's multiple impairments were controllable by medication or other forms of treatment, ALJ did not err by finding impairments did not significantly limit claimant's exertional capabilities).

Similarly, with regard to Plaintiff's hepatitis C, the ALJ found no evidence in the medical record or from Plaintiff's testimony that his hepatitis C caused any limitations. Morgan, 169 F.3d at 600 (a conflict between subjective complaints and objective medical evidence in the record is a sufficient reason that undermines a claimant's credibility).

The ALJ next considered Plaintiff's left shoulder pain. The ALJ noted that Plaintiff appeared not to consider this a "main complaint" and "did not testify that the shoulder pain limited him from all types of work or activities." (AR at 26-27.) The ALJ also noted that Plaintiff's treating physician did not place any restrictions. (Id. at 27.) In fact, the treating physician noted that Plaintiff was capable of lifting ten pounds frequently and twenty pounds occasionally, consistent with his RFC for a range of light work. (Id. at 384-86.) Nevertheless, the ALJ gave Plaintiff the benefit of the doubt with regard to his shoulder pain and also limited him to not raising his left upper extremity above shoulder level, as well as finding other postural and environmental limitations. (Id. at 25.)

The ALJ also discounted Plaintiff's complaints because Plaintiff "stopped working for reasons not related to the allegedly disabling impairments." (Id. at 27.) The ALJ stated that Plaintiff testified he had been working as a prep cook "in 2001, just prior to the alleged disability onset date," but quit after he "had a disagreement" with the chef when he was expected to do the work of more than three men. (Id. at 27, 63.) Generally, the fact that a claimant left his job for a reason other than pain is a clear and convincing reason for discounting his testimony. See Drouin v. Sullivan, 966 F.2d 1255, 1258-59 (9th Cir. 1992). In this case, however, the Court believes the ALJ misstated the date Plaintiff left this job, as there was no testimony at the hearing about the date, and other records indicate he left this job in 1999. two years prior to the alleged onset date of February 1, 2001. (AR at 248, 298.) As a result, this reason for discounting*fn3 Plaintiff's credibility although clear, is not convincing. However, because the ALJ provided other valid reasons for discounting Plaintiff's credibility, any error was harmless. See Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162, 1163 (9th Cir. 2008) (finding an error by the ALJ with respect to one or more factors in a credibility determination may be harmless if there "remains substantial evidence supporting the ALJ's conclusions" in that regard); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (upholding the ALJ's reasons for discounting claimant's credibility where one reason was invalid but other reasons supported the ALJ's analysis).

The ALJ also noted that the "allegedly limited daily activities" testified to by Plaintiff were not supported by the record "in view of the relatively weak medical evidence and other factors discussed" in the decision. (AR at 27.) The ALJ further noted that Plaintiff attributed his limited daily activities to reasons "not related to his physical impairments." (Id.) These are clear and convincing reasons for discounting Plaintiff's credibility. Morgan, 169 F.3d at 600 (ALJ may properly rely on plaintiff's daily activities, and on conflict between claimant's testimony of subjective complaints and objective medical evidence in the record); Tidwell, 161 F.3d at 602 (ALJ may properly rely on weak objective support, lack of treatment, daily activities inconsistent with total disability, and helpful medication); Orteza, 50 F.3d at 750 (ALJ may properly rely on claimant's daily activities and the lack of side effects from prescribed medication).

Finally, the ALJ also carefully considered the medical opinion evidence from multiple sources. (AR at 27-28.) To the extent the ALJ relied on the fact that the objective medical evidence does not support Plaintiff's alleged severity of symptoms, although a lack of objective medical evidence may not be the sole reason for discounting a plaintiff's credibility, it is nonetheless a legitimate and relevant factor to be considered. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Here, the ALJ found that the records of Plaintiff's treating physician showed Plaintiff had no restrictions. (AR at 27.) However, the ALJ also considered the functional limitations found by the independent medical expert, Arnold Ostrow, M.D., who testified at the hearing; State agency physician, L. Naiman, M.D., who assessed Plaintiff on June 30, 2009; and the consultative examination by internist John Godes, M.D., on June 17, 2009, each of whom did indicate some functional limitations. (Id. at 27-28.)

The ALJ gave "significant weight" to the opinion of the medical expert, Dr. Ostrow, which the ALJ found to be consistent with Plaintiff's testimony and the "longitudinal medical record of evidence as a whole." (Id. at 27.) Dr. Ostrow's opinion and findings were used to develop Plaintiff's RFC. The ALJ gave some discounted weight to the opinions of Dr. Naiman and Dr. Godes, but found that neither of them considered Plaintiff's exertional, postural, and environmental limitations, to which the ALJ gave Plaintiff "the benefit of the doubt." (Id. at 27, 28.)

Based on the foregoing, the Court finds the ALJ's credibility finding was supported by substantial evidence and was sufficiently specific to permit the Court to conclude that the ALJ did not arbitrarily discredit Plaintiff's subjective testimony. Thus, there was no error.

IV. ORDER Based on the foregoing, IT IS THEREFORE ORDERED, that judgment be entered affirming the decision of the Commissioner of Social Security and dismissing this action with prejudice.

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