Pickering v. Astrue

Filing 19

ORDER AFFIRMING the Commissioner's denial of benefits. Signed by Judge Frederick J Martone on 3/22/12. (DMT)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 ) ) ) Plaintiff, ) ) vs. ) ) Michael J. Astrue, Commissioner of Social) ) Security, ) ) Defendant. ) ) No. CV 11-00919-PHX-FJM Robert L. Pickering, ORDER 16 We have before us plaintiff's opening brief (doc. 14), defendant's response (doc. 15), 17 and plaintiff's reply (doc. 18). Plaintiff filed an application for disability insurance benefits 18 on April 3, 2007, alleging onset of disability of March 5, 2007. His application was denied 19 initially and upon reconsideration. He then filed a request for a hearing before an 20 Administrative Law Judge ("ALJ") and a hearing was held November 12, 2009. The ALJ 21 concluded plaintiff was not disabled and denied his application for benefits. The ALJ’s 22 decision became the Commissioner’s final decision when the Appeals Council denied 23 plaintiff’s request for review. Plaintiff now seeks judicial review. 24 I 25 We "disturb the denial of benefits only if the decision 'contains legal error or is not 26 supported by substantial evidence.'" Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 27 2008) (citation omitted). "Substantial evidence is such relevant evidence as a reasonable 28 mind might accept as adequate to support a conclusion." Id. (internal quotation marks and 1 citations omitted). The "evidence must be more than a mere scintilla but not necessarily a 2 preponderance." Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). "Where evidence 3 is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be 4 upheld." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). We must "review the 5 administrative record as a whole, weighing both the evidence that supports and that which 6 detracts from the ALJ's conclusion." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 7 1995). II 8 9 Plaintiff was born in 1954. He has been diagnosed with familial adenomatous 10 polyposis ("FAP") and Gardner's syndrome. In 1971, he underwent surgery to remove his 11 colon and create an ileostomy, an opening in the belly wall used to deliver waste out of the 12 body. He had additional surgeries to create ileostomies in 1976 and 2002 and uses an 13 ileostomy bag. In 1996, half of plaintiff's stomach and the first section of his small intestine 14 were removed. 15 Plaintiff has a high school education, no college or vocational training, and worked 16 as an electrician until March 2007, when he complained that he was in too much pain to 17 continue working. At that time, Dr. Susan Briones opined that plaintiff was limited to sitting, 18 standing, and walking for less than three hours each in an 8-hour workday because of FAP 19 and uncontrolled hypertension. She also opined that plaintiff's lifting and carrying was 20 limited to less than 20 pounds and he could not climb at all. In addition, she found plaintiff 21 had severe medication side effects and suffered from moderately severe pain, fatigue, 22 dizziness, and cramping. In December 2008, Dr. Briones evaluated plaintiff again and 23 opined that he had the same limitations she identified in March 2007 due to FAP and 24 uncontrolled diabetes. 25 III 26 The ALJ followed the required five-step procedure to evaluate whether plaintiff is 27 disabled within the meaning of the Social Security Act. See 20 C.F.R. § 416.920(a)(4). At 28 step one, the ALJ determined that plaintiff had not engaged in substantial gainful activity -2- 1 since the date of his application. At step two, the ALJ found that plaintiff has the following 2 severe impairments: familial adenomatous polyposis coli, status-post total proctocolectomy 3 and ileostomy; Garner's syndrome, status-post partial gastrectomy and partial 4 pancreatectomy, and status-post Whipple procedure with ileostomy; diabetes mellitus; and 5 hypertension. Consequently, the ALJ proceeded to step three, where she concluded that 6 plaintiff's impairments did not meet or equal one of the listed impairments in 20 CFR Part 7 4, Subpart P, Appendix 1. 8 To show that an impairment matches a listed impairment, a claimant "must meet all 9 of the specified medical criteria." Sullivan v. Zebley, 493 U.S. 521, 530, 110 S. Ct. 885, 891 10 (1990). If a claimant has an impairment that meets or equals a listed impairment, he is 11 "conclusively presumed to be disabled" regardless of his age, education, or work experience. 12 Bowen v. Yuckert, 482 U.S. 137, 141, 107 S. Ct. 2287, 2291 (1987); Marcia v. Sullivan, 900 13 F.2d 172, 174 (9th Cir. 1990); 20 C.F.R. § 416.920(a)(4)(iii). Because the ALJ found 14 plaintiff did not meet or equal a listed impairment, she assessed plaintiff's residual functional 15 capacity and past relevant work at step four and found that plaintiff could perform light work, 16 with some specific limitations. Finally, at step five, the ALJ considered plaintiff's residual 17 functional capacity, age, education, and work experience and determined plaintiff is not 18 disabled because he could perform a reduced range of light work and has skills from past 19 relevant work that are transferable to other occupations with jobs existing in significant 20 numbers in the national economy. The ALJ determined that plaintiff could work as an 21 electrical assembler and therefore plaintiff is not disabled. 22 In making the determination at step three, the ALJ found plaintiff's statements 23 concerning the intensity, persistence and limiting effects of his alleged symptoms were not 24 credible in light of objective medical evidence. 25 26 27 28 Without affirmative evidence showing that the claimant is malingering, the Commissioner's reasons for rejecting the claimant's testimony must be clear and convincing. If an ALJ finds that a claimant's testimony relating to the intensity of his pain and other limitations is unreliable, the ALJ must make a credibility determination citing the reasons why the testimony is unpersuasive. The ALJ must specifically identify what testimony is credible and what testimony undermines the claimant's complaints. -3- 1 Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999) (citations 2 omitted). The ALJ concluded that plaintiff's credibility was undermined by objective 3 medical evidence, golf outings, a vacation to Mexico, and the fact that his impairments were 4 present at the same level of severity prior to the alleged onset date. When weighing 5 credibility, the ALJ may consider inconsistencies in plaintiff's testimony or between his 6 testimony and his conduct, daily activities, and work record. Thomas v. Barnhart, 278 F.3d 7 947, 958-59 (9th Cir. 2002). "If the ALJ's credibility finding is supported by substantial 8 evidence in the record, we may not engage in second-guessing." Id. at 959. 9 The ALJ found that plaintiff could not perform his past work as of the alleged onset 10 date. This appears to preclude the contention that his impairments were equally severe 11 before and after that date. Plaintiff's credibility is favorably impacted by the fact that he 12 worked as an electrician for thirty years before his alleged onset date. Cf. id. (claimant's 13 extremely poor work history negatively affected her credibility regarding her inability to 14 work). On the other hand, there are inconsistencies between plaintiff's testimony and notes 15 from his doctor's appointments. On March 13, 2007 a physician noted that he had "done 16 quite well" and "basically has not had any problem" with his ileostomy. Tr. at 178. On June 17 29, 2007, he reported to Dr. Briones that he was "doing alright." Tr. at 242. On November 18 29, 2007, he again reported that was "doing alright." Tr. at 248. On August 1, 2008, he 19 reported being more bothered by his chronic abdominal pain, and the doctor noted that his 20 Vicodin seemed not to be working anymore. Tr. at 313. But on August 29, 2008, he was 21 doing well with his abdominal pain and looking forward to a trip to Mexico. Tr. at 312. On 22 October 27, 2008, he was "doing well." Tr. at 309. On March 10, 2009 he reported doing 23 alright with his pain. Tr. at 304. On November 10, 2009, he reported that he was doing well 24 with his present dose of pain medication and had "no complaints." Tr. at 293. These prior 25 inconsistent statements provide specific, clear and convincing reasons for rejecting plaintiff's 26 testimony about the severity of his symptoms. See Tommasetti v. Astrue, 533 F.3d 1035, 27 1039 (9th Cir. 2008) (ALJ may weigh claimant's credibility using many factors, including 28 prior inconsistent statements concerning the symptoms). -4- 1 Plaintiff also faults the ALJ for assigning limited weight to the opinion of his treating 2 physician, Dr. Briones. The ALJ may not reject the contradicted opinion of a treating 3 physician without providing specific and legitimate reasons supported by substantial 4 evidence in the record. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). In this 5 case, the ALJ noted that Dr. Briones' progress notes contained little more than "very general 6 statements that the claimant's complaints of abdominal pain are generally controlled with 7 medication, and at other times indicate that the claimant's condition is improving." Tr. at 14. 8 The ALJ also found Dr. Briones' assessment to be "inconsistent with the bulk of the evidence 9 of record" and provided specific examples to support this finding. Tr. at 14. 10 While there is some evidence in the record to support plaintiff's contention that he is 11 disabled, there is also ample evidence supporting the ALJ's conclusion that he is not. "If the 12 evidence can reasonably support either affirming or reversing the Secretary's conclusion, the 13 court may not substitute its judgment for that of the Secretary." Reddick v. Chater, 157 F.3d 14 715, 720-21 (9th Cir. 1998). We will not second guess the ALJ's conclusion because it is 15 supported by substantial evidence in the record. IV 16 17 The ALJ did not err in finding plaintiff's skills as an electrician are transferable to the 18 job of electrical assembler. Transferability is most probable among jobs in which the same 19 or a lesser degree of skill is required, the same or similar tools and machines are used, and 20 the same or similar raw materials, products, processes, or services are involved. 20 C.F.R. 21 § 404.1568(d)(2). These factors suggest that plaintiff does possess transferable skills. 22 Electrician is a skilled job, whereas electrical assembler is semiskilled. Tr. at 45-46. Both 23 jobs involve working with tools, and the vocational expert testified that similar tools are 24 used. Tr. at 49-50. And both jobs involve working with similar raw materials, namely wires. 25 The skills of an electrician are not so specialized that they are not readily usable in other 26 industries, jobs, or work settings. The ALJ's finding that plaintiff could adjust to other work 27 was not in error. 28 V -5- 1 Based on the foregoing, we conclude that the ALJ’s determination that plaintiff is not 2 disabled, and therefore not eligible for benefits, is supported by substantial evidence in the 3 record. Accordingly, IT IS ORDERED AFFIRMING the Commissioner's denial of 4 benefits. 5 DATED this 22nd day of March, 2012. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-

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