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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Michael J. Astrue, Commissioner of Social)
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Security,
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Defendant.
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No. CV 11-00919-PHX-FJM

Robert L. Pickering,

ORDER

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We have before us plaintiff's opening brief (doc. 14), defendant's response (doc. 15),

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and plaintiff's reply (doc. 18). Plaintiff filed an application for disability insurance benefits

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on April 3, 2007, alleging onset of disability of March 5, 2007. His application was denied

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initially and upon reconsideration. He then filed a request for a hearing before an

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Administrative Law Judge ("ALJ") and a hearing was held November 12, 2009. The ALJ

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concluded plaintiff was not disabled and denied his application for benefits. The ALJ’s

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decision became the Commissioner’s final decision when the Appeals Council denied

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plaintiff’s request for review. Plaintiff now seeks judicial review.

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I

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We "disturb the denial of benefits only if the decision 'contains legal error or is not

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supported by substantial evidence.'" Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir.

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2008) (citation omitted). "Substantial evidence is such relevant evidence as a reasonable

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mind might accept as adequate to support a conclusion." Id. (internal quotation marks and

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citations omitted). The "evidence must be more than a mere scintilla but not necessarily a

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preponderance." Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). "Where evidence

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is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be

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upheld." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). We must "review the

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administrative record as a whole, weighing both the evidence that supports and that which

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detracts from the ALJ's conclusion." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.

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1995).
II

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Plaintiff was born in 1954. He has been diagnosed with familial adenomatous

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polyposis ("FAP") and Gardner's syndrome. In 1971, he underwent surgery to remove his

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colon and create an ileostomy, an opening in the belly wall used to deliver waste out of the

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body. He had additional surgeries to create ileostomies in 1976 and 2002 and uses an

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ileostomy bag. In 1996, half of plaintiff's stomach and the first section of his small intestine

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were removed.

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Plaintiff has a high school education, no college or vocational training, and worked

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as an electrician until March 2007, when he complained that he was in too much pain to

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continue working. At that time, Dr. Susan Briones opined that plaintiff was limited to sitting,

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standing, and walking for less than three hours each in an 8-hour workday because of FAP

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and uncontrolled hypertension. She also opined that plaintiff's lifting and carrying was

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limited to less than 20 pounds and he could not climb at all. In addition, she found plaintiff

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had severe medication side effects and suffered from moderately severe pain, fatigue,

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dizziness, and cramping. In December 2008, Dr. Briones evaluated plaintiff again and

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opined that he had the same limitations she identified in March 2007 due to FAP and

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uncontrolled diabetes.

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III

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The ALJ followed the required five-step procedure to evaluate whether plaintiff is

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disabled within the meaning of the Social Security Act. See 20 C.F.R. § 416.920(a)(4). At

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step one, the ALJ determined that plaintiff had not engaged in substantial gainful activity
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since the date of his application. At step two, the ALJ found that plaintiff has the following

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severe impairments: familial adenomatous polyposis coli, status-post total proctocolectomy

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and ileostomy; Garner's syndrome, status-post partial gastrectomy and partial

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pancreatectomy, and status-post Whipple procedure with ileostomy; diabetes mellitus; and

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hypertension. Consequently, the ALJ proceeded to step three, where she concluded that

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plaintiff's impairments did not meet or equal one of the listed impairments in 20 CFR Part

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4, Subpart P, Appendix 1.

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To show that an impairment matches a listed impairment, a claimant "must meet all

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of the specified medical criteria." Sullivan v. Zebley, 493 U.S. 521, 530, 110 S. Ct. 885, 891

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(1990). If a claimant has an impairment that meets or equals a listed impairment, he is

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"conclusively presumed to be disabled" regardless of his age, education, or work experience.

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Bowen v. Yuckert, 482 U.S. 137, 141, 107 S. Ct. 2287, 2291 (1987); Marcia v. Sullivan, 900

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F.2d 172, 174 (9th Cir. 1990); 20 C.F.R. § 416.920(a)(4)(iii). Because the ALJ found

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plaintiff did not meet or equal a listed impairment, she assessed plaintiff's residual functional

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capacity and past relevant work at step four and found that plaintiff could perform light work,

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with some specific limitations. Finally, at step five, the ALJ considered plaintiff's residual

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functional capacity, age, education, and work experience and determined plaintiff is not

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disabled because he could perform a reduced range of light work and has skills from past

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relevant work that are transferable to other occupations with jobs existing in significant

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numbers in the national economy. The ALJ determined that plaintiff could work as an

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electrical assembler and therefore plaintiff is not disabled.

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In making the determination at step three, the ALJ found plaintiff's statements

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concerning the intensity, persistence and limiting effects of his alleged symptoms were not

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credible in light of objective medical evidence.

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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.
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Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999) (citations

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omitted). The ALJ concluded that plaintiff's credibility was undermined by objective

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medical evidence, golf outings, a vacation to Mexico, and the fact that his impairments were

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present at the same level of severity prior to the alleged onset date. When weighing

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credibility, the ALJ may consider inconsistencies in plaintiff's testimony or between his

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testimony and his conduct, daily activities, and work record. Thomas v. Barnhart, 278 F.3d

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947, 958-59 (9th Cir. 2002). "If the ALJ's credibility finding is supported by substantial

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evidence in the record, we may not engage in second-guessing." Id. at 959.

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The ALJ found that plaintiff could not perform his past work as of the alleged onset

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date. This appears to preclude the contention that his impairments were equally severe

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before and after that date. Plaintiff's credibility is favorably impacted by the fact that he

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worked as an electrician for thirty years before his alleged onset date. Cf. id. (claimant's

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extremely poor work history negatively affected her credibility regarding her inability to

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work). On the other hand, there are inconsistencies between plaintiff's testimony and notes

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from his doctor's appointments. On March 13, 2007 a physician noted that he had "done

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quite well" and "basically has not had any problem" with his ileostomy. Tr. at 178. On June

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29, 2007, he reported to Dr. Briones that he was "doing alright." Tr. at 242. On November

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29, 2007, he again reported that was "doing alright." Tr. at 248. On August 1, 2008, he

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reported being more bothered by his chronic abdominal pain, and the doctor noted that his

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Vicodin seemed not to be working anymore. Tr. at 313. But on August 29, 2008, he was

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doing well with his abdominal pain and looking forward to a trip to Mexico. Tr. at 312. On

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October 27, 2008, he was "doing well." Tr. at 309. On March 10, 2009 he reported doing

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alright with his pain. Tr. at 304. On November 10, 2009, he reported that he was doing well

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with his present dose of pain medication and had "no complaints." Tr. at 293. These prior

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inconsistent statements provide specific, clear and convincing reasons for rejecting plaintiff's

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testimony about the severity of his symptoms. See Tommasetti v. Astrue, 533 F.3d 1035,

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1039 (9th Cir. 2008) (ALJ may weigh claimant's credibility using many factors, including

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prior inconsistent statements concerning the symptoms).
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Plaintiff also faults the ALJ for assigning limited weight to the opinion of his treating

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physician, Dr. Briones. The ALJ may not reject the contradicted opinion of a treating

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physician without providing specific and legitimate reasons supported by substantial

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evidence in the record. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). In this

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case, the ALJ noted that Dr. Briones' progress notes contained little more than "very general

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statements that the claimant's complaints of abdominal pain are generally controlled with

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medication, and at other times indicate that the claimant's condition is improving." Tr. at 14.

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The ALJ also found Dr. Briones' assessment to be "inconsistent with the bulk of the evidence

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of record" and provided specific examples to support this finding. Tr. at 14.

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While there is some evidence in the record to support plaintiff's contention that he is

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disabled, there is also ample evidence supporting the ALJ's conclusion that he is not. "If the

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evidence can reasonably support either affirming or reversing the Secretary's conclusion, the

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court may not substitute its judgment for that of the Secretary." Reddick v. Chater, 157 F.3d

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715, 720-21 (9th Cir. 1998). We will not second guess the ALJ's conclusion because it is

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supported by substantial evidence in the record.
IV

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The ALJ did not err in finding plaintiff's skills as an electrician are transferable to the

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job of electrical assembler. Transferability is most probable among jobs in which the same

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or a lesser degree of skill is required, the same or similar tools and machines are used, and

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the same or similar raw materials, products, processes, or services are involved. 20 C.F.R.

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§ 404.1568(d)(2). These factors suggest that plaintiff does possess transferable skills.

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Electrician is a skilled job, whereas electrical assembler is semiskilled. Tr. at 45-46. Both

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jobs involve working with tools, and the vocational expert testified that similar tools are

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used. Tr. at 49-50. And both jobs involve working with similar raw materials, namely wires.

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The skills of an electrician are not so specialized that they are not readily usable in other

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industries, jobs, or work settings. The ALJ's finding that plaintiff could adjust to other work

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was not in error.

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V
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Based on the foregoing, we conclude that the ALJ’s determination that plaintiff is not

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disabled, and therefore not eligible for benefits, is supported by substantial evidence in the

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record. Accordingly, IT IS ORDERED AFFIRMING the Commissioner's denial of

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benefits.

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DATED this 22nd day of March, 2012.

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