Jimmy Wood v. Michael J Astrue

Filing 15

MEMORANDUM AND OPINION AND ORDER by Magistrate Judge Oswald Parada: IT THEREFORE IS ORDERED that Judgment be entered affirming the decision of the Commissioner, and dismissing this action with prejudice. (am)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11

JIMMY WOOD,

12

v.

13
14

MICHAEL J. ASTRUE,
Commissioner of Social
Security,

15

Defendant.

16
17
18
19

Plaintiff,

) Case No. EDCV 11-01799-OP
)
)
) MEMORANDUM OPINION AND
) ORDER
)
)
)
)
)
)

The Court1 now rules as follows with respect to the two disputed issues
listed in the Joint Stipulation (“JS”).2
///

20
21
1

22
23
24
25
26
27
28

Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed
before the United States Magistrate Judge in the current action. (ECF Nos. 5,
7.)
2

As the Court advised the parties in its Case Management Order, the
decision in this case is being made on the basis of the pleadings, the
Administrative Record and the Joint Stipulation filed by the parties. In
accordance with Rule 12(c) of the Federal Rules of Civil Procedure, the Court
has determined which party is entitled to judgment under the standards set
forth in 42 U.S.C. § 405(g). (ECF No. 4 at 3.)
1

1

I.

2

DISPUTED ISSUES

3

As reflected in the Joint Stipulation, the disputed issues raised by

4

Plaintiff as the grounds for reversal and/or remand are as follows:
(1)

5

considered Plaintiff’s credibility; and

6
(2)

7

Whether the ALJ properly considered the testimony of Plaintiff’s
wife.

8
9

Whether the Administrative Law Judge (“ALJ”) properly

(JS at 3.)

10

II.

11

STANDARD OF REVIEW

12

Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s

13

decision to determine whether the Commissioner’s findings are supported by

14

substantial evidence and whether the proper legal standards were applied.

15

DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence

16

means “more than a mere scintilla” but less than a preponderance. Richardson

17

v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971);

18

Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir.

19

1988). Substantial evidence is “such relevant evidence as a reasonable mind

20

might accept as adequate to support a conclusion.” Perales, 402 U.S. at 401

21

(citation omitted). The Court must review the record as a whole and consider

22

adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-

23

30 (9th Cir. 1986). Where evidence is susceptible of more than one rational

24

interpretation, the Commissioner’s decision must be upheld. Gallant v.

25

Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).

26

///

27

///

28

///
2

1

III.

2

DISCUSSION

3

A.

The ALJ’s Findings.
The ALJ found that Plaintiff has the following severe impairments:

4
5

morbid obesity, sleep apnea, diabetes mellitus, affective mood disorder,

6

obsessive compulsive disorder, and edema. (Administrative Record (“AR”) at

7

15.) The ALJ concluded that Plaintiff retains the residual functional capacity

8

(“RFC”) to perform medium work with the following limitations: lift and/or

9

carry twenty-five pounds frequently and fifty pounds occasionally; stand and/or

10

walk for four hours in an eight-hour workday; sit for six hours in an eight-hour

11

workday; must be close to a bathroom; and can do simple and repetitive tasks

12

but cannot have contact with the public and can only have non-intense contact

13

with co-workers and supervisors. (Id. at 16.)

14

To determine the extent to which Plaintiff’s limitations eroded his ability

15

to perform the full range of medium work, the ALJ asked the vocational expert

16

(“VE”) whether jobs exist in the national economy for an individual with

17

Plaintiff’s age, education, work experience, and RFC. (Id. at 21.) Based on the

18

testimony of the VE, the ALJ determined Plaintiff could make a successful

19

adjustment to other work that exists in significant numbers in the national

20

economy. (Id.) Thus, the ALJ determined that Plaintiff has not been under a

21

disability as defined by the Social Security Act. (Id.)

22

B.

23

The ALJ Properly Evaluated Plaintiff’s Credibility.
Plaintiff asserts that the ALJ failed to provide clear and convincing

24

reasons for rejecting his excess pain testimony. (JS at 26.) The Court

25

disagrees.

26

In her decision, the ALJ rejected Plaintiff’s credibility as follows:

27

The claimant’s testimony does not establish any different

28

conclusions than found herein. The claimant testified he was not
3

1

currently working and last worked in October 27, 2008 as a caregiver

2

for his mother; the job ended when she passed away. The claimant

3

has no other sources of income besides relying on support from his

4

spouse. The claimant lives in a two-story house with his spouse and

5

a dog. He said he does not go upstairs. The claimant has applied for

6

two housekeeping jobs at hospitals, but was denied.

7

The claimant said he does not believe he could do the job if he

8

was offered the job. The claimant explained he has slept for 3 weeks

9

prior to the hearing, he has slept for 2 weeks straight and only got out

10

of bed to go to the bathroom. The claimant said he could not work

11

because he has a bipolar disorder, depression, and attention deficit

12

hyperactivity disorder (“ADHD”).

13

The claimant uses a CPPAP [sic] machine to alleviate his sleep

14

apnea for 12 years. The claimant explained he is fatigue [sic] and

15

lays down 4 to 6 hours. He feels constantly exhausted. He stated he

16

has diabetes mellitus and has neuropathic pain in his feet; the

17

claimant takes medication for his diabetes. He is on a diabetic diet

18

and walks a block once a week. He also takes medication for his

19

depression.

20

The claimant admitted he has a valid California driver’s

21

license and is able to drive. He also admitted he drinks alcohol. He

22

explained he binge drinks once a week.3 He admitted he drank three

23

beers the night before the hearing. The claimant also admitted he

24

could do the following activities of daily living: take his medication

25

as prescribed, go shopping, watch television, walk to the mailbox to

26
27
28

3

At the hearing, Plaintiff explained he binge drank once a week prior
to 2008 and about once a month after 2008. (AR at 37.)
4

1

get the mail, prepare his own meals, maintain his personal care, help

2

his wife with the household chores, attend church every Sunday, and

3

use a computer.

4

In addition to the claimant’s testimony, the undersigned has

5

also read and considered the claimant’s fatigue questionnaire, dated

6

March 22, 2009, and statements of records and finds the claimant

7

only credible to the extent that he can do the work described herein.

8

The claimant stated he could do the following activities of daily

9

living, such as: take care of his dog, make coffee, use a computer to

10

check his emails and current events, prepare his own meals, do

11

household chores (e.g. doing the dishes), run errands (e.g. shopping

12

for groceries, getting gas for the car), walk to the mailbox to pick up

13

mail, do yard work (e.g. mow the lawn), and watch television.

14

Despite is [sic] abilities to do various activities of daily living, the

15

claimant stated he has fatigue.

16

The undersigned notes some of the physical and mental

17

abilities and social interactions required in order to perform the

18

above-described activities of daily living are the same as those

19

necessary for obtaining and maintaining employment.

20

claimant’s ability to participate in the activities of daily living, stated

21

above, undermined the credibility of the claimant’s allegations of

22

functional limitations.

The

23

....

24

The medical records indicate the claimant has been treated at

25

the Beaver Medical Group from October 3, 2008 to February 24,

26

2010. The claimant has been diagnosed with obstructive sleep

27

apnea, hypertension, hyperlipidemia diabetes, morbid obesity, gout,

28

insomnia, depression, chronic ankle edema, history of ‘tumor’ right
5

1

adrenal gland, and a history of steatohepatitis. A medical report,

2

dated October 29, 2009 notes the claimant has bronchitis (probably

3

influenza), diabetes mellitus, hypertension, sleep apnea, edema, and

4

depression and insomnia, all of which are stable. He has been

5

conservatively treated with medication and advised to go on a diet

6

and lose weight. However, the treatment records show the claimant

7

declined to follow treatment recommendations. The claimant ‘did

8

not want to deal with’ dieting and weight loss. This demonstrates a

9

possible unwillingness to do what is necessary to improve his

10

condition. It may also be an indication that his symptoms are not as

11

severe as he purports.

12

....

13

Regarding to the claimant’s mental impairment, the

14

undersigned has read the checklist-style progress notes, dating from

15

June 3, 2009 to July 13, 2010. These checklist-style medical forms

16

appear to have been completed as an accommodation to the claimant

17

and include only conclusions regarding functional limitations

18

without any rationale for those conclusions. The undersigned finds

19

these medical forms have very little probative value because they are

20

not supported by any objective evidence. Further, the recent progress

21

notes show the claimant was complaint [sic] with treatment, had no

22

medication side effects, and had a normal mental status examination.

23

The undersigned has also read and considered all of the State

24

agency physicians’ reports and consultative examiners’ reports and

25

agrees with them. However, the undersigned took into consideration

26

the claimant’s subjective complaints and gave the claimant a more

27

restrictive residual functional capacity herein than assessed by the

28

State agency physicians reports and consultative examiners.
6

1

....

2

In sum, the above residual functional capacity assessment is

3

supported by the evidence as a whole. The claimant’s subjective

4

complaints are less than fully credible and the objective medical

5

evidence does not support the alleged severity of symptoms.

6
7

(Id. at 17-20 (internal citations omitted).)
An ALJ’s assessment of pain severity and claimant credibility is entitled

8

to “great weight.” Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989);

9

Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1986). When, as here, an ALJ’s

10

disbelief of a claimant’s testimony is a critical factor in a decision to deny

11

benefits, the ALJ must make explicit credibility findings. Rashad v. Sullivan,

12

903 F.2d 1229, 1231 (9th Cir. 1990); Lewin v. Schweiker, 654 F.2d 631, 635

13

(9th Cir. 1981); see also Albalos v. Sullivan, 907 F.2d 871, 874 (9th Cir. 1990)

14

(holding insufficient an implicit finding that claimant was not credible).

15

Under the “Cotton test,” where the claimant has produced objective

16

medical evidence of an impairment which could reasonably be expected to

17

produce some degree of pain and/or other symptoms, and the record is devoid

18

of any affirmative evidence of malingering, the ALJ may reject the claimant’s

19

testimony regarding the severity of the claimant’s pain and/or other symptoms

20

only if the ALJ makes specific findings stating clear and convincing reasons

21

for doing so. See Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986); see

22

also Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Dodrill v. Shalala,

23

12 F.3d 915, 918 (9th Cir. 1993); Bunnell v. Sullivan, 947 F.2d 341, 343 (9th

24

Cir. 1991).

25

To determine whether a claimant’s testimony regarding the severity of

26

her symptoms is credible, the ALJ may consider, among other things, the

27

following evidence: (1) ordinary techniques of credibility evaluation, such as

28

the claimant’s reputation for lying, prior inconsistent statements concerning the
7

1

symptoms, and other testimony by the claimant that appears less than candid;

2

(2) unexplained or inadequately explained failure to seek treatment or to follow

3

a prescribed course of treatment; (3) the claimant’s daily activities; and (4)

4

testimony from physicians and third parties concerning the nature, severity, and

5

effect of the claimant’s symptoms. Thomas v. Barnhart, 278 F.3d 947, 958-59

6

(9th Cir. 2002); see also Smolen, 80 F.3d at 1284.

7
8
9

Here, the ALJ provided clear and convincing reasons for finding
Plaintiff’s subjective complaints of impairment less than credible.
The ALJ cited Plaintiff’s ability to engage in activities of daily living

10

that require the same physical and mental abilities as those necessary to obtain

11

and maintain employment. (AR at 18.) The ALJ noted that Plaintiff’s ability

12

to perform these activities is inconsistent with an incapacitating or debilitating

13

condition. (Id.) Daily activities may be grounds for an adverse credibility

14

finding “if a claimant is able to spend a substantial part of his day engaged in

15

pursuits involving the performance of physical functions that are transferable to

16

a work setting.” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989); see also

17

Burch v. Barnhart, 400 F.3d 676, at 681 (9th Cir. 2005) (finding adverse

18

credibility based on daily activities may be proper “if a claimant engaged in

19

numerous daily activities involving skills that could be transferred to the

20

workplace”). In a fatigue questionnaire dated March 22, 2009, Plaintiff stated

21

that on a daily basis he takes care of his dog, makes coffee, uses a computer,

22

prepares his own meals, does household chores, run errands, goes grocery

23

shopping, walks to the mailbox to pick up mail, and watches television. (AR at

24

17-18, 162-67.) Although Plaintiff did complain of getting tired and needing

25

rest, substantial evidence supports the ALJ’s conclusion that Plaintiff’s ability

26

to engage in such daily activities undermines his credibility as to functional

27

limitations.

28

Furthermore, the ALJ noted that the objective medical evidence does not
8

1

support Plaintiff’s alleged severity of symptoms. (AR at 20.) The ALJ pointed

2

to the internal medicine evaluation conducted by consultative examiner and

3

Board certified internist, Sandra M. Eriks, M.D., who found Plaintiff to be

4

generally normal and capable of heavy work. (AR at 19-20, 252-56.) She

5

further cited the psychiatric evaluation conducted by consultative examiner and

6

Board eligible psychiatrist, Linda M. Smith, M.D., who assessed Plaintiff’s

7

ability to interact with the public as only mildly impaired. (AR at 20, 196-202.)

8

Although a lack of objective medical evidence may not be the sole reason for

9

discounting a plaintiff’s credibility, it is nonetheless a legitimate and relevant

10

factor to be considered. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir.

11

2001). Moreover, the ALJ’s RFC determination gave Plaintiff the benefit of

12

the doubt and was more restrictive than that found by these consultative

13

examiners.

14

Plaintiff argues the ALJ erroneously considered his obesity in rejecting

15

his credibility insofar as she concluded that Plaintiff declined to follow

16

treatment recommendations and that Plaintiff was possibly unwilling to do

17

what is necessary to improve his condition. (JS at 29-31.) The ALJ found that

18

Plaintiff had been advised to go on a diet and lose weight to help with his

19

impairments but failed to follow these treatment recommendations, thus

20

demonstrating a possible unwillingness to do what is necessary to improve his

21

condition and an indication that his symptoms were not as severe as he

22

purported. (AR at 19.) An ALJ may find that a claimant’s refusal of a

23

recommended course of treatment supports a finding that he is not credible.

24

See Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (“Our case law is clear

25

that if a claimant complains about disabling pain but fails to seek treatment, or

26

fails to follow prescribed treatment, for the pain, an ALJ may use such failure

27

as a basis for finding the complaint unjustified or exaggerated.”); 20 CFR §

28

404.1530(a) and 416.930(a) (“In order to get benefits, you must follow
9

1

treatment prescribed by your physician if this treatment can restore your ability

2

to work.”); 20 CFR 404.1530(b) and 416.930(b) (“If you do not follow the

3

prescribed treatment without a good reason, we will not find you disabled.”).

4

However, “failure to follow treatment for obesity tells us little or nothing about

5

a claimant’s credibility.” Orn, 495 F.3d at 638. Thus, the ALJ improperly cited

6

Plaintiff’s failure to lose weight as a reason for rejecting his credibility.

7

However, because the ALJ provided other valid reasons for discounting

8

Plaintiff’s credibility, any error was harmless. See Carmickle v. Comm’r, Soc.

9

Sec. Admin., 533 F.3d 1155, 1162, 1163 (9th Cir. 2008) (finding an error by

10

the ALJ with respect to one or more factors in a credibility determination may

11

be harmless if there “remains substantial evidence supporting the ALJ’s

12

conclusions” in that regard); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d

13

1190, 1197 (9th Cir. 2004) (upholding the ALJ’s reasons for discounting

14

claimant’s credibility where one reason was invalid but other reasons supported

15

the ALJ’s analysis).
Based on the foregoing, the Court finds that relief is not warranted on

16
17

this claim.

18

C.

19

The ALJ Properly Considered the Testimony of Plaintiff’s Wife.
Plaintiff claims that the ALJ failed to properly consider the testimony of

20

Plaintiff’s wife, Stella Wood. (JS at 3.) Specifically, Plaintiff notes the ALJ

21

improperly rejected Ms. Wood’s testimony on the grounds that (1) Ms. Wood

22

“asserts the [Plaintiff] has minimal limitations”; (2) Ms. Wood’s testimony

23

mirrors Plaintiff’s function report and allegations; (3) Ms. Wood’s assertions

24

are not supported by any objective medical evidence; (4) Ms. Wood has filial

25

and pecuniary motivation to be helpful to Plaintiff; and (5) Ms. Wood “is not

26

knowledgeable in the medical and/or vocational fields and thus is unable to

27

render opinions on how the [Plaintiff’s] impairments impact his overall abilities

28

to perform basic work activities”. (Id. at 4-13.) Again, the Court disagrees.
10

1

Title 20 C.F.R. §§ 404.1513(d) and 416.913(d) provide that, in addition

2

to medical evidence, the Commissioner “may also use evidence from other

3

sources to show the severity of [an individual’s] impairment(s) and how it

4

affects [his] ability to work,” and the Ninth Circuit has repeatedly held that

5

“[d]escriptions by friends and family members in a position to observe a

6

claimant’s symptoms and daily activities have routinely been treated as

7

competent evidence.” Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987).

8

This applies equally to the sworn hearing testimony of witnesses (see Nguyen

9

v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996)), as well as to unsworn

10

statements and letters of friends and relatives. See Schneider v. Comm’r of

11

Soc. Sec. Admin., 223 F.3d 968, 975 (9th Cir. 2000). If the ALJ chooses to

12

reject such evidence from “other sources,” he may not do so without comment.

13

Nguyen, 100 F.3d at 1467. The ALJ must provide “reasons that are germane to

14

each witness.” Dodrill, 12 F.3d at 919.

15
16

Here, the ALJ provided sufficient reasons germane to Plaintiff’s wife for
rejecting her testimony.

17

1.

Minimal Limitations.

18

Plaintiff asserts that the ALJ misstated the evidence when he stated

19

Plaintiff’s wife had asserted that Plaintiff’s limitations were minimal. (JS at 5.)

20

However, the ALJ noted Plaintiff’s wife testimony: Plaintiff’s sleep apnea is

21

better when using the CPAP machine; he does not sleep through the night; he

22

seems always sleepy and lethargic; he is irritable, cranky, angry, confused, and

23

overwhelmed; he is unable to complete tasks; and he has poor circulation in his

24

legs. (AR at 18.) Whether or not the ALJ properly described this testimony as

25

asserting “minimal limitations,” any error was harmless, as the ALJ still took

26

these issues into account when she limited Plaintiff to medium exertion work,

27

with simple and repetitive tasks, no contact with the public, and only

28

non-intense contact with co-workers and supervisors. (Id. at 19 (stating that
11

1

the ALJ “took into consideration the claimant’s subjective complaints and gave

2

the claimant a more restrictive residual functional capacity herein than assessed

3

by the State agency physicians[’] reports and consultative examiners.”).

4

2.

Mirrors Plaintiff’s Testimony.

5

The ALJ found that the testimony of Plaintiff’s wife “mirrors the

6

claimant’s function report and allegations.” (Id. at 18.) Where, as here, the lay

7

witness testimony mirrors the claimant’s testimony, and the claimant is found

8

to be not credible, the ALJ may reject the lay witness testimony for that reason

9

alone. See Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 694 (9th

10

Cir. 2009) (holding that ALJ gave a germane reason for rejecting claimant’s

11

wife’s testimony where it was similar to claimant’s own complaints that were

12

properly rejected).

13

3.

Unsupported by the Medical Record.

14

The ALJ rejected Plaintiff’s wife’s assertions as not credible because

15

they were not supported by any medically determined impairment. (AR at 18.)

16

While lay testimony cannot be rejected merely because it is irrelevant to

17

medical conclusions or not supported by medical evidence, Bruce v. Astrue,

18

557 F.3d 1113, 1116 (9th Cir. 2009), inconsistency with medical evidence is a

19

germane reason to discredit lay testimony. See Bayliss v. Barnhart, 427 F. 3d

20

1211, 1218 (9th Cir. 2005); Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001)

21

(“One reason for which an ALJ may discount lay testimony is that it conflicts

22

with medical evidence.”); Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393,

23

1395 (9th Cir. 1984) (per curiam) (“The ALJ properly discounted lay testimony

24

that conflicted with the available medical evidence.”). Because the ALJ here

25

cites only a lack of support from the medical record, rather than an

26

inconsistency, such lack of support is insufficient to discredit Plaintiff’s wife’s

27

testimony.

28

///
12

1

4.

2

The ALJ also referred to Plaintiff’s wife’s filial and pecuniary

3

motivation to be helpful so Plaintiff could receive benefits. (AR at 18.) An

4

ALJ may reject a lay witness’ testimony if the ALJ finds the witness to be

5

biased. See, e.g., Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006)

6

(finding the ALJ’s consideration of the claimant’s prior girlfriend’s close

7

relationship with the plaintiff and desire to help him as a possible reason for

8

bias was a reason germane to that witness). However, “[t]he fact that a lay

9

witness is a family member cannot be a ground for rejecting his or her

Bias.

10

testimony.” Smolen, 80 F.3d at 1289; see also Valentine, 574 F.3d at 694

11

(finding that being an interested party in the abstract was insufficient to reject a

12

spouse’s testimony). Thus, the fact that Plaintiff’s wife has a motivation as

13

Plaintiff’s wife to help him is not a sufficient reason germane to her for

14

discrediting her testimony.

15

5.

Competence of Testimony.

16

Furthermore, the ALJ rejected Plaintiff’s wife’s testimony because she is

17

not competent to make a diagnosis or argue the severity of Plaintiff’s symptoms

18

in relationship to his ability to work. (AR at 18.) An ALJ need not discuss

19

“medical diagnoses” made by lay witnesses because they “are beyond the

20

competence of lay witnesses and therefore do not constitute competent

21

evidence.” Nguyen, 100 F.3d at 1467 (citing 20 C.F.R. § 404.1513(a)).

22

“However, lay witness testimony as to a claimant’s symptoms or how an

23

impairment affects ability to work is competent evidence, and therefore cannot

24

be disregarded without comment.” Id. (citations omitted). Thus, the ALJ erred

25

in finding Plaintiff’s wife incompetent to testify regarding the effect of

26

Plaintiff’s symptoms on his ability to work.

27

6.

Conclusion.

28

Nonetheless, because the ALJ provided significant reasons for rejecting
13

1

Plaintiff’s wife’s testimony that were germane to her, any error was harmless.

2

See Carmickle, 533 F.3d at 1162-63 (finding an error by the ALJ with respect

3

to one or more factors in a credibility determination may be harmless if there

4

“remains substantial evidence supporting the ALJ’s conclusions” in that

5

regard).

6
7

Based on the foregoing, the Court finds that relief is not warranted on
Plaintiff’s claim.

8

IV.

9

ORDER

10

Based on the foregoing, IT THEREFORE IS ORDERED that Judgment

11

be entered affirming the decision of the Commissioner, and dismissing this

12

action with prejudice.

13
14
15

Dated: June 26, 2012

______________________________
HONORABLE OSWALD PARADA
United States Magistrate Judge

16
17
18
19
20
21
22
23
24
25
26
27
28
14