Raymond Gonzales, Jr. v. Michael J. Astrue

Filing 15

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

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 RAYMOND GONZALES, JR., ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN,1 ) Acting Commissioner of Social ) Security, ) ) Defendant. ) ___________________________________) NO. EDCV 12-00372-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on March 20, 2012, seeking review of 19 the denial by the Social Security Commissioner (“Commissioner”) of 20 plaintiff’s application for a period of disability (“POD”), disability 21 insurance benefits (“DIB”), and supplemental security income 22 (“SSI”). On April 24, 2012, the parties consented, pursuant to 28 U.S.C. § 636(c), 23 to proceed before the undersigned United States 24 Magistrate Judge. The parties filed a Joint Stipulation on November 15, 25 2012, in which: plaintiff seeks an order reversing the Commissioner’s 26 27 28 1 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).) 1 decision and awarding benefits or, alternatively, remanding for further 2 administrative proceedings; and the Commissioner requests that her 3 decision be affirmed. 4 5 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 6 7 On August 13, 2008, plaintiff 8 (Administrative Record (“A.R.”) 11.) 9 filed an application for POD and DIB. filed an application for SSI. On August 15, 2008, plaintiff (Id.) In the disability report 10 accompanying his application, plaintiff alleged an inability to work 11 since March 1, 2006, due to “[m]ultiple fracture[s of the] left leg, 12 back, arthritis, dislocated disc, left ankle, anxiety, [and] hear[ing] 13 voices.” 14 additionally alleged that he suffers from severe back and leg pain, and 15 that his hepatitis C is causing “severe fatigue.” (A.R. 226.) At the reconsideration level, plaintiff (A.R. 261.) 16 17 The Commissioner denied plaintiff’s claim initially and upon 18 reconsideration. (A.R. 84-86, 121-25, 131-36.) On March 31, 2010, 19 plaintiff, who was represented by counsel, testified at a hearing before 20 Administrative Law Judge Mason D. Harrell, Jr. (the “ALJ”). 21 79.) 22 plaintiff, who was again represented by counsel, testified before the 23 same ALJ. 24 psychology, and Samuel Landau, M.D., a medical expert in internal 25 medicine, testified. (A.R. 11, 28-54.) A vocational expert, Corinne J. 26 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.) 27 28 On May 13, 2011, the ALJ denied plaintiff’s claim (A.R. 11-24), and 2 1 the Appeals Council subsequently denied plaintiff’s request for review 2 of the ALJ’s decision (A.R. 1-3). 3 action. That decision is now at issue in this 4 5 SUMMARY OF ADMINISTRATIVE DECISION 6 7 The ALJ found that plaintiff last met the insured status 8 requirements of the Social Security Act on December 31, 2008, and he had 9 not engaged in substantial gainful activity since his alleged onset date 10 of March 1, 2006. (A.R. 14.) The ALJ determined that plaintiff has the 11 severe impairments of: 12 low back strain; obesity; hepatitis C infection; depressive disorder, 13 not otherwise specified (NOS): psychosis disorder, NOS; and opioid drug 14 abuse.” (A.R. 14.) Nevertheless, the ALJ concluded that plaintiff does 15 not have an impairment or combination of impairments that meets or 16 medically equals one of the listed impairments in 20 C.F.R. Part 404, 17 Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(c), 416.920(d)). “fracture deformity of the left ankle; chronic (Id.) 18 19 After reviewing the record, the ALJ determined that, if plaintiff 20 stopped his substance use,2 he would have the residual functional 21 capacity (“RFC”) to perform “light work,” consisting of the following: 22 23 [He] could lift and carry 20 pounds occasionally and 10 pounds 24 frequently. He could stand and walk for 15-30 minutes at a 25 2 26 27 28 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.) 3 1 time for a total of 2 hours out of an 8-hour work day. He can 2 use a cane on an as needed basis. 3 surfaces. 4 with normal breaks such as every 2 hours and with a provision 5 to elevate his left leg 6 inches above the floor level as 6 needed. He can occasionally stoop and bend. He cannot squat, 7 kneel, crawl, run, or jump. 8 cannot climb ladders, work at heights, or balance. 9 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 10 machinery. 11 repetitive tasks. 12 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 13 14 (A.R. 17.) 15 16 The ALJ found that plaintiff would be unable to perform his past 17 relevant work (“PRW”) as a barber. 18 plaintiff’s age, education, work experience, and RFC, the ALJ found that 19 other jobs exist in the national economy that plaintiff could perform, 20 including “electronic worker” and “small items assembler of hospital 21 products.” 22 abuse was a “contributing factor” to the determination of disability, 23 because if he stopped his substance abuse, he would not be disabled and 24 could perform jobs in the national economy. (A.R. 23-24.) Accordingly, 25 the ALJ determined that plaintiff has not been under a disability, as 26 defined in the Social Security Act, since March 1, 2006, his alleged 27 onset date, through the date of this decision. (A.R. 23.) (A.R. 22.) However, based upon The ALJ concluded that plaintiff’s substance 28 4 (A.R. 24.) 1 STANDARD OF REVIEW 2 3 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s 4 decision to determine whether it is free from legal error and supported 5 by substantial evidence. 6 2007). Substantial evidence is “‘such relevant evidence as a reasonable 7 mind might accept as adequate to support a conclusion.’” 8 omitted). 9 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 10 (9th Cir. 2003). “While inferences from the record can constitute 11 substantial evidence, only those ‘reasonably drawn from the record’ will 12 suffice.” 13 2006)(citation omitted). Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 14 15 Although this Court cannot substitute its discretion for that of 16 the Commissioner, the Court nonetheless must review the record as a 17 whole, “weighing both the evidence that supports and the evidence that 18 detracts from the [Commissioner’s] conclusion.” 19 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 20 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 21 responsible for determining credibility, resolving conflicts in medical 22 testimony, and for resolving ambiguities.” 23 1035, 1039 (9th Cir. 1995). Desrosiers v. Sec’y of “The ALJ is Andrews v. Shalala, 53 F.3d 24 25 The Court will uphold the Commissioner’s decision when the evidence 26 is susceptible to more than one rational interpretation. 27 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 28 review only the reasons stated by the ALJ in his decision “and may not 5 Burch v. However, the Court may 1 affirm the ALJ on a ground upon which he did not rely.” Orn, 495 F.3d 2 at 630; see also Connett, 340 F.3d at 874. 3 the Commissioner’s decision if it is based on harmless error, which 4 exists only when it is “clear from the record that an ALJ’s error was 5 ‘inconsequential to the ultimate nondisability determination.’” Robbins 6 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 7 Comm’r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 8 at 679. The Court will not reverse 9 10 DISCUSSION 11 12 Plaintiff alleges the following two issues: (1) whether the ALJ 13 properly considered plaintiff’s pain testimony; and (2) whether the ALJ 14 properly considered plaintiff’s credibility. (Joint Stipulation (“Joint 15 Stip.”) at 4.) 16 are interrelated. 17 that 18 plaintiff’s testimony regarding his subjective symptoms and pain to be 19 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 20 21 Once a disability claimant produces objective medical evidence of 22 an underlying impairment that is reasonably likely to be the source of 23 claimant’s subjective symptom(s), all subjective testimony as to the 24 severity of the symptoms must be considered. 25 F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 26 (9th 27 (explaining how pain and other symptoms are evaluated). 28 ALJ makes Cir. 1991); a see also finding of 20 C.F.R. §§ malingering based 6 Moisa v. Barnhart, 367 404.1529(a), on 416.929(a) “[U]nless an affirmative evidence 1 thereof, he or she may only find an applicant not credible by making 2 specific findings as to credibility and stating clear and convincing 3 reasons for each.” 4 considered in weighing a claimant’s credibility include: 5 claimant’s reputation for truthfulness; (2) inconsistencies either in 6 the claimant’s testimony or between the claimant’s testimony and his 7 conduct; (3) the claimant’s daily activities; (4) the claimant’s work 8 record; and (5) testimony from physicians and third parties concerning 9 the nature, severity, and effect of the symptoms of which the claimant Robbins, 466 F.3d at 883. The factors to be 10 complains. 11 (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). 12 13 Here, the ALJ found that “[a]fter careful consideration of the 14 evidence . . . [plaintiff]’s medically determinable impairments could 15 reasonably be expected to cause the alleged symptoms.” (A.R. 18.) 16 Further, plaintiff. 17 Nonetheless, the ALJ concluded that plaintiff’s “statements concerning 18 the intensity, persistence and limiting effects of [his] symptoms are 19 not 20 assessment. 21 plaintiff was not credible with respect to his subjective symptom and 22 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 23 24 During the March 31, 2010 hearing, plaintiff testified that he is 25 unable to work due to: severe pain in his leg and back; depression; his 26 issues being around people; his tattoos; and his age. 27 He also testified that he uses a cane everyday (A.R. 71), experiences 28 pain in his hip, neck, and arms (A.R. 71), and takes Oxycontin for his 7 (A.R. 60-62, 69.) 1 pain (A.R. 68). Plaintiff testified that he is unable to see a doctor, 2 because he has no money and no medical insurance. 3 has Hepatitis C, but he has never been treated for it. 4 hears voices nearly every day, because he ran out of his medication for 5 the “voices.” 6 concentration. 7 to 20 minutes and stand up to 10 minutes. 8 has to lay down all day and would not be able to do a job that required 9 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 10 clear and convincing reasons for rejecting plaintiff’s pain and symptoms 11 testimony. 12 13 First, the ALJ noted that the objective medical evidence did not 14 support the level of disability alleged by plaintiff. (A.R. 21.) 15 Although the lack of objective medicine cannot be the sole basis for 16 rejecting a plaintiff’s credibility, “it is a factor that the ALJ can 17 consider in his credibility analysis.” Burch, 400 F.3d at 681. 18 19 Next, the ALJ premised behavior, which his finding, itself part, constitute on “a plaintiff’s 20 drug-seeking 21 convincing reason to discount a claimant’s credibility about pain.” 22 (A.R. 21; A.R. 49 - medical expert noting that there was evidence in the 23 record suggesting “drug-seeking” behavior; A.R. 276, 283, 351.) 24 Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001)(holding that 25 evidence of drug-seeking behavior undermines a claimant’s credibility); 26 Gray v. Comm’r of Soc. Sec., 365 Fed. Appx. 60, 63 (9th Cir. 2010) 27 (evidence of drug-seeking behavior is a valid reason for finding a 28 claimant not credible); Lewis v. Astrue, 238 Fed. Appx. 300, 302 (9th 8 can in clear and See 1 Cir. 2007)(inconsistency with the medical evidence and drug-seeking 2 behavior sufficient to discount credibility); Morton v. Astrue, 232 Fed. 3 Appx. 718, 719 (9th Cir. 2007)(drug-seeking behavior is a valid reason 4 for questioning a claimant’s credibility). 5 and manages to obtain Oxycontin prescriptions on an ongoing basis, 6 notwithstanding the fact, noted in the ALJ’s decision, that in June 7 2009, emergency room personnel diagnosed him with not only heroin abuse 8 but also Oxycontin abuse. 9 history of polysubstance abuse, his drug-seeking behavior supports the 10 ALJ’s finding that plaintiff’s description of his pain and symptoms was 11 not wholly credible. (A.R. 20.) Indeed, plaintiff seeks out Thus, in view of plaintiff’s 12 13 The ALJ also noted that plaintiff understated his drug use, 14 particularly as there is no evidence in the record that plaintiff has 15 gone 16 abuse.”3 17 testified that he last used drugs two years prior, i.e., in early 2008. 18 (A.R. 62-63.) 19 was still abusing drugs as late as August 2009. 20 may consider a claimant’s inconsistent statements regarding his drug or 21 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 22 23 24 25 26 27 28 3 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.) 9 1 F.3d at 959 (citing Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 2 1999)(relying on inconsistent statements about alcohol use to reject a 3 claimant’s testimony)). 4 5 Finally, the ALJ discredited plaintiff, because his mental 6 impairments were exacerbated by his medical non-compliance and drug 7 abuse. 8 explained, failure to seek treatment or follow a prescribed course of 9 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 10 at 603. Plaintiff testified that non-compliance with his psychiatric 11 medication caused him to hear voices more often. 12 testified that he was non-compliant, because he had run out of his 13 medication. 14 he was dropped from a mental health or drug abuse program after missing 15 two meetings.4 16 259, 262 (9th Cir. 2007)(finding that plaintiff’s failure to comply with 17 certain aspects of her treatment plan was a clear and convincing reason 18 to reject her testimony); Flaten v. Sec’y of Health & Hum. Servs., 44 19 F.3d 1453, 1464 (9th Cir.1995)(finding it appropriate for the ALJ to 20 discount plaintiff’s credibility because of a lack of medical care 21 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. 22 23 Accordingly, the ALJ satisfied his burden of providing clear and 24 25 26 27 28 4 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.) 10 1 convincing reasons for concluding that plaintiff’s statements concerning 2 his symptoms and limitations were not credible to the extent they were 3 inconsistent with his RFC assessment. 4 5 CONCLUSION 6 7 For the foregoing reasons, the Court finds that the Commissioner’s 8 decision is supported by substantial evidence and is free from material 9 legal error. Neither reversal of the Commissioner’s decision nor remand 10 is warranted. Accordingly, IT IS ORDERED that Judgment shall be entered 11 affirming the decision of the Commissioner of the Social Security 12 Administration and dismissing this case with prejudice. 13 14 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 15 copies of this Memorandum Opinion and Order and the Judgment on counsel 16 for plaintiff and for defendant. 17 18 LET JUDGMENT BE ENTERED ACCORDINGLY. 19 20 DATED: June 5, 2013 21 22 23 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 11

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