Michael S Symonds v. Michael J Astrue

Filing 19

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

Download PDF
O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MICHAEL S. SYMONDS, Plaintiff, 12 13 14 15 16 vs. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) CASE NO. ED CV 12-00467 RZ MEMORANDUM OPINION AND ORDER 17 Although Plaintiff Michael Symonds claimed disability based on his carpal 18 tunnel syndrome and his knee problems, in this Court he asserts errors only with respect 19 to the impairment to his knees. He argues (1) that the Administrative Law Judge did not 20 provide sufficient reasons to reject certain medical evidence, and Plaintiff’s own testimony; 21 and (2) that the Administrative Law Judge wrongly rejected the testimony of the treating 22 physicians. The Court assumes that Plaintiff has erroneously stated a third argument, that 23 “the ALJ incorrectly found that Mr. Symonds can return to his past relevant work” 24 (Plaintiff’s Memorandum at 3:3-4), since the Administrative Law Judge explicitly found 25 that Plaintiff cannot return to his past relevant work. [AR 25] Furthermore, in the 26 introduction to his argument, Plaintiff identifies a Dr. Dinh (Plaintiff’s Memorandum at 27 3:3), but he does not later discuss any such doctor and the Court assumes that Plaintiff has 28 1 misstated the name of the doctor. Accordingly, the Court addresses only the two 2 arguments that Plaintiff in fact asserts. The Court finds neither to be persuasive.1 3 The familiar law, which both parties cite, holds that an administrative law 4 judge is not bound to accept a claimant’s assertions as to the levels of his pain, but that, if 5 the impairment can reasonably give rise to pain and the claimant is not malingering, then 6 the administrative law judge must give specific and legitimate reasons for discrediting the 7 claims of pain. Bunnell v. Sullivan, 947 F.2d 341 (9th Cir. 1991) (en banc); Smolen v. 8 Chater, 80 F.3d 1273 (9th Cir. 1996). The Administrative Law Judge has used a formulaic 9 finding that Plaintiff’s assertions are overstated [AR at 23] but, in this case at least, the 10 boilerplate finding is explicated in other parts of the decision, and those explanations are 11 sufficient. 12 Plaintiff complains that the Administrative Law Judge wrongly relied on 13 objective medical evidence to discredit Plaintiff’s complaints of pain. Contrary to 14 Plaintiff’s assertion that “a rejection of a claimant’s testimony based on a lack of objective 15 evidence is always legally insufficient” (Plaintiff’s Memorandum at 7:25-8:1), the Ninth 16 Circuit has held that “[w]hile subjective pain testimony cannot be rejected on the sole 17 ground that it is not fully corroborated by objective medical evidence, the medical evidence 18 is still a relevant factor in determining the severity of the claimant’s pain and its disabling 19 effects. 20 C.F.R. § 404.1529(c)(2)” Rollins v. Massanari, 261 F. 3d 853, 857 (9th Cir. 20 2001). The medical evidence that Plaintiff complains of is the Administrative Law Judge’s 21 reference to the fact that Plaintiff’s knee was stable. [AR 23] That is, however, what the 22 medical professionals stated [AR 747, cited by the Administrative Law Judge at AR 22] 23 and Plaintiff’s argument that it was not stable then because it may have become unstable 24 later does not follow. Plaintiff’s effort to make his later surgery into an argument that the 25 26 27 28 1 Plaintiff at one point also refers to the Administrative Law Judge’s rejecting “Monique Davis’s testimony” (Plaintiff’s Memorandum 6:11), which the Court assumes to be a mistake, since the reference is to the Plaintiff in this case. -2- 1 Appeals Council did not have a basis for rejecting the opinion of a treating physician is a 2 simple red herring. 3 In any event, the Administrative Law Judge did not rely on a conflict with the 4 medical evidence to discredit Plaintiff’s claim that his pain prevented him from working. 5 The Administrative Law Judge also referred to the fact that Plaintiff followed a routine of 6 going to school four days a week — including getting up early, taking the bus to school and 7 presumably moving from class to class and then taking the bus home — and, performing 8 chores such as mowing the lawn, which the Administrative Law Judge noted required 9 significant exertion of both hands and knees, thereby discrediting the notion that Plaintiff’s 10 knees were as impaired as Plaintiff asserted. [AR 23] This was appropriate. The 11 Administrative Law Judge is entitled to view activities that are inconsistent with claims of 12 disability as a basis for discrediting a claimant, Bunnell, 947 F.2d at 346, and this clearly 13 was such activity. 14 The Administrative Law Judge also noted that Plaintiff’s assertion that he 15 required a cane was not entirely credible because he told one of his doctors that he did not 16 require a cane, and that there was no indication that one was prescribed. [AR 23] In this 17 Court, Plaintiff does not challenge the first part of this explanation, and challenges the 18 second part by saying that, since a physician later recommended that he stop using a cane, 19 a physician must have recommended earlier that he start using one. The analysis is not 20 logical, and it does not help Plaintiff; if it was recommended that he not use a cane, then 21 presumably one was not needed. 22 Administrative Law Judge was entitled to interpret the evidence as showing an 23 inconsistency between Plaintiff’s statements and the actual record; even if a different 24 interpretation also would be acceptable, the Court is not free to second-guess this one. 25 Batson v. Commissioner, 359 F.3d 1190, 1196 (9th Cir. 2004). In any event, the analysis is off the mark; the 26 The last factor referenced by the Administrative Law Judge was that Plaintiff 27 settled his Worker’s Compensation case for his knee for $5,000. The Administrative Law 28 Judge stated that “this would indicate something less than the very serious injuries -3- 1 [Plaintiff] alleged.” [AR 23] Plaintiff rightly takes issue with this remark; a settlement is 2 a compromise, and is reached for any number of reasons, and the Administrative Law 3 Judge’s inference is not susceptible to any kind of verification. However, this was but one 4 of many reasons given by the Administrative Law Judge for not treating Plaintiff’s knee 5 impairment as preventing him from working, and the error here does not alone justify a 6 remand. In accordance with the foregoing, the decision of the Commissioner is 7 8 9 affirmed. DATED: December 27, 2012 10 11 RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?