Raymond Gonzales, Jr. v. Michael J. Astrue

Filing 15

MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)

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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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RAYMOND GONZALES, JR.,

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Plaintiff,
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v.
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CAROLYN W. COLVIN,1
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Acting Commissioner of Social
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Security,
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Defendant.
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___________________________________)

NO. EDCV 12-00372-MAN
MEMORANDUM OPINION
AND ORDER

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Plaintiff filed a Complaint on March 20, 2012, seeking review of
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the denial by the Social Security Commissioner (“Commissioner”) of
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plaintiff’s application for a period of disability (“POD”), disability
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insurance

benefits

(“DIB”),

and

supplemental

security

income

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(“SSI”).

On April 24, 2012, the parties consented, pursuant to 28

U.S.C. §

636(c),

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to proceed

before the

undersigned

United States

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Magistrate Judge. The parties filed a Joint Stipulation on November 15,
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2012, in which: plaintiff seeks an order reversing the Commissioner’s
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Carolyn W. Colvin became the Acting Commissioner of the Social
Security Administration on February 14, 2013, and is substituted in
place of former Commissioner Michael J. Astrue as the defendant in this
action. (See Fed. R. Civ. P. 25(d).)

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decision and awarding benefits or, alternatively, remanding for further

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administrative proceedings; and the Commissioner requests that her

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decision be affirmed.

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SUMMARY OF ADMINISTRATIVE PROCEEDINGS

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On

August

13,

2008,

plaintiff

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(Administrative Record (“A.R.”) 11.)

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filed an application for POD and DIB.

filed

an

application

for SSI.

On August 15, 2008, plaintiff
(Id.)

In the disability report

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accompanying his application, plaintiff alleged an inability to work

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since March 1, 2006, due to “[m]ultiple fracture[s of the] left leg,

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back, arthritis, dislocated disc, left ankle, anxiety, [and] hear[ing]

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voices.”

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additionally alleged that he suffers from severe back and leg pain, and

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that his hepatitis C is causing “severe fatigue.”

(A.R.

226.)

At

the

reconsideration

level,

plaintiff

(A.R. 261.)

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The

Commissioner

denied

plaintiff’s

claim

initially

and

upon

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reconsideration. (A.R. 84-86, 121-25, 131-36.)

On March 31, 2010,

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plaintiff, who was represented by counsel, testified at a hearing before

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Administrative Law Judge Mason D. Harrell, Jr. (the “ALJ”).

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79.)

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plaintiff, who was again represented by counsel, testified before the

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same ALJ.

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psychology, and Samuel Landau, M.D., a medical expert in internal

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medicine, testified. (A.R. 11, 28-54.) A vocational expert, Corinne J.

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Porter, also testified.

(A.R. 55-

On June 2, 2010, a supplemental hearing was held, at which

(A.R. 28-54.)

Michael E. Kania, Ph.D., a medical expert in

(Id.)

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On May 13, 2011, the ALJ denied plaintiff’s claim (A.R. 11-24), and
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the Appeals Council subsequently denied plaintiff’s request for review

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of the ALJ’s decision (A.R. 1-3).

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action.

That decision is now at issue in this

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SUMMARY OF ADMINISTRATIVE DECISION

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The

ALJ

found

that

plaintiff

last

met

the

insured

status

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requirements of the Social Security Act on December 31, 2008, and he had

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not engaged in substantial gainful activity since his alleged onset date

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of March 1, 2006.

(A.R. 14.)

The ALJ determined that plaintiff has the

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severe impairments of:

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low back strain; obesity; hepatitis C infection; depressive disorder,

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not otherwise specified (NOS): psychosis disorder, NOS; and opioid drug

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abuse.” (A.R. 14.) Nevertheless, the ALJ concluded that plaintiff does

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not have an impairment or combination of impairments that meets or

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medically equals one of the listed impairments in 20 C.F.R. Part 404,

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Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(c), 416.920(d)).

“fracture deformity of the left ankle; chronic

(Id.)

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After reviewing the record, the ALJ determined that, if plaintiff

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stopped his substance use,2 he would have the residual functional

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capacity (“RFC”) to perform “light work,” consisting of the following:

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[He] could lift and carry 20 pounds occasionally and 10 pounds

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frequently.

He could stand and walk for 15-30 minutes at a

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2

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The ALJ also determined that when plaintiff is using drugs he:
(1) cannot perform work at any exertional level on a consistent and
sustained basis; (2) is unable to engage in an 8-hour work day or 40hour work week without an unreasonable amount of time away from work due
to intoxication and erratic behavior caused by drug usage; and (3) is
unable to perform any past relevant work. (A.R. 15, 22.)
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time for a total of 2 hours out of an 8-hour work day.

He can

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use a cane on an as needed basis.

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surfaces.

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with normal breaks such as every 2 hours and with a provision

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to elevate his left leg 6 inches above the floor level as

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needed. He can occasionally stoop and bend. He cannot squat,

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kneel, crawl, run, or jump.

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cannot climb ladders, work at heights, or balance.

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operate

He should avoid uneven

He can sit for 8 hours out of an 8-hour work day

motorized

He can climb stairs, but he

equipment

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machinery.

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repetitive tasks.

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or

work

around

He cannot

unprotected

His mental impairment limits him to simple,

perform complex tasks.

He can deal with the public but he cannot

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(A.R. 17.)

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The ALJ found that plaintiff would be unable to perform his past

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relevant work (“PRW”) as a barber.

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plaintiff’s age, education, work experience, and RFC, the ALJ found that

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other jobs exist in the national economy that plaintiff could perform,

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including “electronic worker” and “small items assembler of hospital

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products.”

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abuse was a “contributing factor” to the determination of disability,

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because if he stopped his substance abuse, he would not be disabled and

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could perform jobs in the national economy. (A.R. 23-24.) Accordingly,

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the ALJ determined that plaintiff has not been under a disability, as

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defined in the Social Security Act, since March 1, 2006, his alleged

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onset date, through the date of this decision.

(A.R. 23.)

(A.R. 22.)

However, based upon

The ALJ concluded that plaintiff’s substance

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(A.R. 24.)

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STANDARD OF REVIEW

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

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decision to determine whether it is free from legal error and supported

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by substantial evidence.

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2007). Substantial evidence is “‘such relevant evidence as a reasonable

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mind might accept as adequate to support a conclusion.’”

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omitted).

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necessarily a preponderance.”

Orn v. Astrue, 495 F.3d 625, 630 (9th Cir.

Id. (citation

The “evidence must be more than a mere scintilla but not
Connett v. Barnhart, 340 F.3d 871, 873

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(9th Cir. 2003).

“While inferences from the record can constitute

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substantial evidence, only those ‘reasonably drawn from the record’ will

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suffice.”

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2006)(citation omitted).

Widmark

v.

Barnhart,

454

F.3d

1063,

1066

(9th

Cir.

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Although this Court cannot substitute its discretion for that of

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the Commissioner, the Court nonetheless must review the record as a

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whole, “weighing both the evidence that supports and the evidence that

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detracts from the [Commissioner’s] conclusion.”

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Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also

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Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).

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responsible for determining credibility, resolving conflicts in medical

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testimony, and for resolving ambiguities.”

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1035, 1039 (9th Cir. 1995).

Desrosiers v. Sec’y of

“The ALJ is

Andrews v. Shalala, 53 F.3d

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The Court will uphold the Commissioner’s decision when the evidence

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is susceptible to more than one rational interpretation.

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Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

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review only the reasons stated by the ALJ in his decision “and may not
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Burch v.

However, the Court may

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affirm the ALJ on a ground upon which he did not rely.”

Orn, 495 F.3d

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at 630; see also Connett, 340 F.3d at 874.

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the Commissioner’s decision if it is based on harmless error, which

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exists only when it is “clear from the record that an ALJ’s error was

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‘inconsequential to the ultimate nondisability determination.’” Robbins

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v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v.

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Comm’r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d

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at 679.

The Court will not reverse

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DISCUSSION

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Plaintiff alleges the following two issues:

(1) whether the ALJ

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properly considered plaintiff’s pain testimony; and (2) whether the ALJ

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properly considered plaintiff’s credibility. (Joint Stipulation (“Joint

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Stip.”) at 4.)

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are interrelated.

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that

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plaintiff’s testimony regarding his subjective symptoms and pain to be

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not credible.

the

ALJ

The Court addresses these two issues together, as they

set

For the reasons set forth below, the Court concludes
forth

clear

and

convincing

reasons

for

finding

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Once a disability claimant produces objective medical evidence of

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an underlying impairment that is reasonably likely to be the source of

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claimant’s subjective symptom(s), all subjective testimony as to the

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severity of the symptoms must be considered.

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F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345

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(9th

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(explaining how pain and other symptoms are evaluated).

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ALJ makes

Cir.

1991);

a

see

also

finding of

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C.F.R.

§§

malingering based
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Moisa v. Barnhart, 367

404.1529(a),

on

416.929(a)

“[U]nless an

affirmative

evidence

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thereof, he or she may only find an applicant not credible by making

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specific findings as to credibility and stating clear and convincing

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reasons for each.”

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considered in weighing a claimant’s credibility include:

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claimant’s reputation for truthfulness; (2) inconsistencies either in

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the claimant’s testimony or between the claimant’s testimony and his

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conduct; (3) the claimant’s daily activities; (4) the claimant’s work

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record; and (5) testimony from physicians and third parties concerning

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the nature, severity, and effect of the symptoms of which the claimant

Robbins, 466 F.3d at 883.

The factors to be

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complains.

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(1) the

See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir.

2002); see also 20 C.F.R. §§ 404.1529(c), 416.929(c).

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Here, the ALJ found that “[a]fter careful consideration of the

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evidence . . . [plaintiff]’s medically determinable impairments could

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reasonably be expected to cause the alleged symptoms.”

(A.R. 18.)

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Further,

plaintiff.

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Nonetheless, the ALJ concluded that plaintiff’s “statements concerning

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the intensity, persistence and limiting effects of [his] symptoms are

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not

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assessment.

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plaintiff was not credible with respect to his subjective symptom and

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pain testimony must be “clear and convincing.”

the

ALJ

credible”

to

(Id.)

cited

the

no

evidence

extent

they

of

malingering

varied

from

the

by

ALJ’s

own

RFC

Accordingly, the ALJ’s reasons for finding that

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During the March 31, 2010 hearing, plaintiff testified that he is

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unable to work due to:

severe pain in his leg and back; depression; his

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issues being around people; his tattoos; and his age.

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He also testified that he uses a cane everyday (A.R. 71), experiences

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pain in his hip, neck, and arms (A.R. 71), and takes Oxycontin for his
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(A.R. 60-62, 69.)

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pain (A.R. 68).

Plaintiff testified that he is unable to see a doctor,

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because he has no money and no medical insurance.

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has Hepatitis C, but he has never been treated for it.

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hears voices nearly every day, because he ran out of his medication for

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the “voices.”

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concentration.

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to 20 minutes and stand up to 10 minutes.

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has to lay down all day and would not be able to do a job that required

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being around people.

(A.R. 72.)

Plaintiff

(A.R. 72.)

He

He feels suicidal and has trouble with his

(A.R. 73-74.)

(Id.)

(A.R. 70.)

Plaintiff testified that he could sit up
(A.R. 75.)

He stated that he

As discussed below, the ALJ offered several

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clear and convincing reasons for rejecting plaintiff’s pain and symptoms

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testimony.

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First, the ALJ noted that the objective medical evidence did not

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support the level of disability alleged by plaintiff.

(A.R. 21.)

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Although the lack of objective medicine cannot be the sole basis for

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rejecting a plaintiff’s credibility, “it is a factor that the ALJ can

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consider in his credibility analysis.”

Burch, 400 F.3d at 681.

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Next,

the

ALJ

premised

behavior,

which

his

finding,

itself

part,

constitute

on
“a

plaintiff’s

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drug-seeking

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convincing reason to discount a claimant’s credibility about pain.”

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(A.R. 21; A.R. 49 - medical expert noting that there was evidence in the

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record suggesting “drug-seeking” behavior; A.R. 276, 283, 351.)

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Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001)(holding that

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evidence of drug-seeking behavior undermines a claimant’s credibility);

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Gray v. Comm’r of Soc. Sec., 365 Fed. Appx. 60, 63 (9th Cir. 2010)

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(evidence of drug-seeking behavior is a valid reason for finding a

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claimant not credible); Lewis v. Astrue, 238 Fed. Appx. 300, 302 (9th
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can

in

clear

and

See

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Cir. 2007)(inconsistency with the medical evidence and drug-seeking

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behavior sufficient to discount credibility); Morton v. Astrue, 232 Fed.

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Appx. 718, 719 (9th Cir. 2007)(drug-seeking behavior is a valid reason

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for questioning a claimant’s credibility).

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and manages to obtain Oxycontin prescriptions on an ongoing basis,

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notwithstanding the fact, noted in the ALJ’s decision, that in June

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2009, emergency room personnel diagnosed him with not only heroin abuse

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but also Oxycontin abuse.

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history of polysubstance abuse, his drug-seeking behavior supports the

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ALJ’s finding that plaintiff’s description of his pain and symptoms was

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not wholly credible.

(A.R. 20.)

Indeed, plaintiff seeks out

Thus, in view of plaintiff’s

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The

ALJ

also

noted

that

plaintiff

understated his

drug use,

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particularly as there is no evidence in the record that plaintiff has

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gone

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abuse.”3

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testified that he last used drugs two years prior, i.e., in early 2008.

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(A.R. 62-63.)

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was still abusing drugs as late as August 2009.

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may consider a claimant’s inconsistent statements regarding his drug or

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alcohol use in discrediting a claimant’s credibility.

“extensive

periods

(A.R. 21.)

without

opioid

and

occasional

amphetamine

At the March 2010 hearing, for example, plaintiff

However, evidence in the record reflects that plaintiff
(A.R. 377-79.)

An ALJ

See Thomas, 278

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A review of the record reveals that Plaintiff has a long
history of drug abuse, which may be ongoing. For example, plaintiff
tested positive for opiates and amphetamines on September 7, 2006, and
March 19, 2007. (A.R. 20.) In August 2008, plaintiff admitted to a
long history of heroin abuse. (Id.) Further, plaintiff admitted to
using heroin during his emergency room visits in June and August 2009.
(Id.) In fact, during both of those emergency room visits, attending
personnel were unable to draw blood due to scarring from plaintiff’s
intravenous drug abuse (A.R. 20), and plaintiff refused to submit a
urine sample, which the ALJ noted is “consistent with using heroin.”
(A.R. 19-20.)
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F.3d at 959 (citing Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir.

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1999)(relying on inconsistent statements about alcohol use to reject a

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claimant’s testimony)).

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Finally,

the

ALJ

discredited

plaintiff,

because

his

mental

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impairments were exacerbated by his medical non-compliance and drug

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abuse.

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explained, failure to seek treatment or follow a prescribed course of

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treatment” to assess a claimant’s credibility.

(A.R. 21.)

An ALJ may rely on “an unexplained, or inadequately

Fair v. Bowen, 885 F.2d

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at 603.

Plaintiff testified that non-compliance with his psychiatric

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medication caused him to hear voices more often.

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testified that he was non-compliant, because he had run out of his

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medication.

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he was dropped from a mental health or drug abuse program after missing

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two meetings.4

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259, 262 (9th Cir. 2007)(finding that plaintiff’s failure to comply with

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certain aspects of her treatment plan was a clear and convincing reason

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to reject her testimony); Flaten v. Sec’y of Health & Hum. Servs., 44

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F.3d 1453, 1464 (9th Cir.1995)(finding it appropriate for the ALJ to

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discount plaintiff’s credibility because of a lack of medical care

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during a period of claimed disability).)

(A.R. 72.) He

However, he apparently ran out of his medication, because

(A.R. 44-45, 72-73; Montalvo v. Astrue, 237 Fed. Appx.

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Accordingly, the ALJ satisfied his burden of providing clear and

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Notably, while plaintiff is non-compliant with his psychiatric
medication, he does manage to obtain Oxycontin, which plaintiff
testified is “expensive,” “once a month or every two months, whenever
[plaintiff] has the money to go see [his doctor].”
(A.R. 68.)
Moreover, plaintiff’s admission that he sees his doctor regularly for
Oxycontin contradicts his testimony, noted supra, that he cannot see
doctors, because he has no medical insurance or money. (A.R. 70.)
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convincing reasons for concluding that plaintiff’s statements concerning

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his symptoms and limitations were not credible to the extent they were

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inconsistent with his RFC assessment.

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CONCLUSION

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For the foregoing reasons, the Court finds that the Commissioner’s

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decision is supported by substantial evidence and is free from material

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legal error. Neither reversal of the Commissioner’s decision nor remand

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is warranted. Accordingly, IT IS ORDERED that Judgment shall be entered

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affirming the decision of the Commissioner of the Social Security

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Administration and dismissing this case with prejudice.

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IT IS FURTHER ORDERED that the Clerk of the Court shall serve

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copies of this Memorandum Opinion and Order and the Judgment on counsel

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for plaintiff and for defendant.

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATED:

June 5, 2013

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MARGARET A. NAGLE
UNITED STATES MAGISTRATE JUDGE

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