Pascual Leos Cervantes v. Carolyn W. Colvin

Filing 23

MEMORANDUM OPINION AND ORDER by Magistrate Judge Ralph Zarefsky. The decision of the Administrative Law Judge is affirmed. (mz)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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PASCUAL LEOS CERVANTES,
Plaintiff,

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vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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CASE NO. CV 14-04659 RZ
MEMORANDUM OPINION
AND ORDER

Plaintiff Pascual Leos Cervantes seeks review of the Social Security

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Commissioner’s decision denying his application for disability benefits.

The

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Administrative Law Judge found that, although impaired, Plaintiff could perform jobs that

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exist in plentiful quantities in the economy, and hence was not disabled. [AR 20-29]

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Plaintiff challenges that determination on three grounds.

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Plaintiff first argues that the Administrative Law Judge failed to give

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appropriate weight to the treating physicians, Drs. Gailuinas and Sargeant. As for

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Dr. Sargeant, any error would be harmless because, as the Commissioner notes in this

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Court, Dr. Sargeant only opined that Plaintiff could not perform his then-current work, and

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this is essentially the same finding the Administrative Law Judge made here, when the

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Administrative Law Judge found that Plaintiff could not perform his past relevant work.

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[AR 27] Accordingly, the Administrative Law Judge’s assessment of Dr. Sargeant does

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not provide any basis for overturning the Commissioner’s decision.

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For his part, Dr. Gailuinas filled out a residual functional capacity

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questionnaire, after the hearing in this case had been held. [AR 25] In that questionnaire,

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Dr. Gailuinas concluded that Plaintiff was so impaired that he could barely function. [AR

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547] The Administrative Law Judge rejected Dr. Gailuinas’ conclusions. He found

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inconsistencies between what Dr. Gailuinas said and what the Plaintiff himself said; he

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found a lack of correspondence between what Dr. Gailuinas said and what the objective

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record showed; and he found that Dr. Gailuinas opined on matters that he had neither

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treated Plaintiff for, nor had formed part of his diagnosis. [AR 25]

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As the Commissioner notes in this Court, there is some question as the extent

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to which Dr. Gailuinas should be considered a treating physician, inasmuch as he treated

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Plaintiff only a few times, even though Plaintiff claimed to have suffered from his

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impairments for many years. Dr. Gailuinas did work for the same outfit where Plaintiff had

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received medical services, even if he himself had not provided them; but in reviewing the

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records, if he did so, he stands in no greater position than any other doctor reviewing them.

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As the Commissioner notes, the consultative physicians also reviewed those records, and

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reached conclusions that Plaintiff was capable of performing much greater functions.

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Even if Dr. Gailuinas is considered a treating physician, however, the

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Administrative Law Judge gave specific and legitimate reasons for rejecting his opinion

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of Plaintiff’s ability to function. Plaintiff quibbles with the reasons that the Administrative

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Law Judge gave, but the evidence is susceptible to his interpretation and, if so, the Court

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must respect it, even if it is also susceptible to a different interpretation. Mayes v.

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Massanari, 276 F.3d 453, 459 (9th Cir. 2001). For instance, Plaintiff objects to the

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Administrative Law Judge’s comparison of Plaintiff’s testimony on his ability to lift to

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Dr. Gailuinas’ restriction on his lifting; Plaintiff did testify that he could lift a greater

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amount than Dr. Gailuinas found. [AR 27] It is also true that, as Plaintiff asserts here, that

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Plaintiff also testified that if he frequently lifted 15-20 pounds that he would be “unusable”
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the following day [id.], but that does not belie the fact that his testimony was inconsistent

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with Dr. Gailuinas’ statement that Plaintiff rarely could lift as much as ten pounds. [AR

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549 ] And it was also a legitimate ground for disregarding the opinion that it was based,

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in part, on an impairment that did not even form part of the diagnosis. [AR 550]

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Plaintiff’s second argument is that the Administrative Law Judge erred in

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determining his credibility. Again, Plaintiff wants to quibble with the Administrative Law

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Judge’s interpretation of the evidence. In assessing a claimant’s credibility, however, an

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administrative law judge is entitled to use ordinary techniques of evaluating evidence. Fair

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v. Bowen, 885 F.2d 597, 604 n.5 (9th Cir. 1989). Certainly one of those is inconsistencies

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between statements by a claimant himself. See Batson v. Commissioner of Social Security

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Administration, 359 F.3d 1190, 1196-97 (9th Cir. 2004). The Administrative Law Judge

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thus noted that Plaintiff’s statement of his inability to stand for longer than 15-20 minutes

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was belied by his other statements to the contrary in the record [AR 25] and his inability

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to sit for more than 20 minutes was belied by the fact that he had been sitting for longer

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than 20 minutes at the hearing at the time he made that statement. [Id.] Cf. Batson, supra;

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Thomas v. Barnhart, 278 F.3d 947, 960 (9th Cir. 2002). As noted, the Administrative Law

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Judge also referred to inconsistencies in statements about Plaintiff’s ability to lift. The

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Administrative Law Judge also noted that Plaintiff was non-compliant with diet restrictions

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and medications. [AR 26] All of these are factors that the Administrative Law Judge was

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entitled to consider, and clearly there was substantial evidence backing his conclusion.

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Plaintiff’s third argument is a confusing mixture of several points. Plaintiff

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begins by criticizing the Administrative Law Judge for not including in the residual

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functional capacity Plaintiff’s need for breaks due to naps and diarrhea. However, the

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Administrative Law Judge explained the reasons that the record did not support such

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limitations [AR 24], and an administrative law judge is not required to include unsupported

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limitations in hypothetical questions that he asks a vocational expert. Rollins v. Massanari,

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261 F.3d 853, 863-64 (9th Cir. 2001).

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Plaintiff adds to this argument the assertion that the Administrative Law Judge

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did not identify the skills that Plaintiff could transfer from his past work to work that was

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available in the economy. But he found that Plaintiff, who had been a department manager

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in a pharmacy, could be a department manager in the retail industry, implicitly finding that

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the transferable skills were those of a department manager; indeed, since pharmacies also

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often are retail establishments, there may well have been little change in industries either.

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He also found that Plaintiff could perform as a cashier (and the vocational expert had

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testified that Plaintiff could perform either as a semi-skilled or as an unskilled cashier.)

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Despite Plaintiff’s contentions, there can be little doubt that there was substantial evidence

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supporting the Administrative Law Judge’s determination.
In accordance with the foregoing, the decision of the Administrative Law
Judge is affirmed.
DATED: March 17, 2015

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RALPH ZAREFSKY
UNITED STATES MAGISTRATE JUDGE

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