Robert Gordon Hughes v. Carolyn W. Colvin

Filing 20

MEMORANDUM OPINION AND ORDER by Magistrate Judge Ralph Zarefsky. (ib)

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O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 ROBERT GORDON HUGHES, ) ) Plaintiff, ) ) vs. ) ) CAROLYN W. COLVIN, Acting ) Commissioner of Social Security, ) ) Defendant. ) ____________________________________) Case No. CV 14-03631 RZ MEMORANDUM OPINION AND ORDER 17 Plaintiff Robert Gordon Hughes previously was found not disabled by the 18 Social Security Commissioner. On appeal, this Court remanded for determination of 19 whether Plaintiff had performed substantial gainful activity as a telephone solicitor, the 20 past relevant work that the Administrative Law Judge had said he could perform. 21 Hughes v. Astrue, CV 11-9608-RZ (C.D. Cal. 2012). [AR 532-35] While the case was 22 on remand, the Commissioner adjudicated a later application, and found that Plaintiff 23 had become disabled as of November 2011.1 What remained from the first court case 24 therefore was the period from the onset date that Plaintiff originally asserted in that 25 case, July 2009, to the date after which the Commissioner concedes Plaintiff became 26 27 28 1 The Administrative Law used the date of May 12, 2012, which appears to be the date that disability payments actually began. The date that disability itself was found appears to be November 19, 2011, the date used by the parties before the Court. 1 disabled. The present appeal concerns that period; the Administrative Law Judge found 2 that Plaintiff had not been disabled prior to November 2011, and Plaintiff again appeals 3 to this court. 4 The Administrative Law Judge found that Plaintiff had a variety of severe 5 impairments related to problems with his heart. [AR 469] He addressed the issue 6 raised by this Court on the prior review, by finding that Plaintiff had not performed 7 substantial gainful activity in his past relevant work as a telephone solicitor. [AR 474] 8 However, he found that Plaintiff had performed substantial gainful activity in his past 9 work as a commodities seller, which the Administrative Law Judge found was distinct 10 from Plaintiff’s other past telephone solicitation work. 11 Plaintiff retained the capacity to perform such work, the Administrative Law Judge 12 concluded that Plaintiff was not disabled for the closed period at issue in this case. [AR 13 474-75] [Id.] Further finding that 14 Plaintiff contends that the Administrative Law Judge wrongly evaluated 15 the medical evidence from the treating physician Dr. Wyner. He also contends that the 16 Administrative Law Judge should have considered certain medical evidence from 17 another doctor, Dr. Banayan, which came after the period at issue in the present case. 18 Finally, Plaintiff contends that the Administrative Law Judge should have considered 19 Plaintiff’s supposed mental impairment. The Court finds none of these arguments 20 persuasive. 21 Dr. Wyner presented differing analyses of Plaintiff’s capacity. Plaintiff 22 now points to one such analysis, in which Dr. Wyner found that Plaintiff’s residual 23 functional capacity was quite low, below the level for sedentary work. [AR 444-48] 24 Plaintiff acknowledges the existence of a different, 20-months-earlier, analysis by 25 Dr.Wyner, in which Dr. Wyner found that Plaintiff’s capacity was greater, particularly 26 with respect to the ability to stand for two hours and to sit for a longer period of time, 27 generally consistent with the requirements for sedentary work. [AR 347-48] The 28 Administrative Law Judge discussed both assessments [AR 471-73], together with his - 2 - 1 evaluation of the other medical evidence, and Plaintiff’s own contributions to his 2 difficulties, including not being compliant with medication requirements and not 3 seeking medical treatment promptly when needed. [AR 471-74] It may be that a 4 different administrative law judge might have reached different conclusions in assessing 5 this evidence. However, the assessment made by this administrative law judge was not 6 unreasonable, and the Court is obligated to uphold it if, as here, the evidence is 7 susceptible to more than one interpretation. Batson v. Commissioner, 359 F.3d 1190, 8 1196 (9th Cir. 2004); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002); Mayes v. 9 Massanari, 276 F.3d 453, 459 (9th Cir. 2001). 10 Plaintiff also asserts that the Administrative Law Judge erred in not 11 considering the opinion of Dr. Banayan who, in August 2012, opined that Plaintiff had a 12 working capacity of less than four hours per day. The Administrative Law Judge did 13 not accept this opinion, because it was rendered after Plaintiff already had been 14 determined to be disabled. [AR 472] Medical evidence after a period of disability can 15 be considered by the Commissioner, because symptoms often bespeak a problem that 16 arose before the patient saw a doctor. Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 17 1998). This was not such a situation, however. Here, Dr. Banayan was opining on 18 Plaintiff’s capacity as of the time that he stated his opinion. The Administrative Law 19 Judge was correct that the opinion, while it was consistent with the decision that already 20 had been made that Plaintiff was disabled, did not shed light on Plaintiff’s capacity to 21 work before he was determined to have become disabled. 22 Plaintiff’s last argument is that the Administrative Law Judge failed to 23 consider a colorable claim that Plaintiff suffered a mental impairment. The claim was 24 based mostly on Plaintiff’s own testimony as to his levels of stress, not on medical 25 evidence. Severity is a measure of functionability, 20 C.F.R. §§ 404.1521, 416.921; 26 Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988); Smolen v. Chater, 80 F.3d 1273, 27 1290 (9th Cir. 1996), and the Administrative Law Judge was justified in concluding that 28 - 3 - 1 Plaintiff did not adduce substantial evidence that any mental impairment qualified as 2 severe. 3 4 In accordance with the foregoing, the decision of the Commissioner is affirmed. 5 IT IS SO ORDERED. 6 DATED: March 09, 2015 7 8 9 ____________________________________ RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 4 -

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