Tommy G. Bishop v. Michael J. Astrue

Filing 19

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

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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TOMMY G. BISHOP,
Plaintiff,

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

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Defendant.

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CASE NO. ED CV 13-00210 RZ
MEMORANDUM OPINION AND
ORDER

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Plaintiff Tommy G. Bishop claims that the Social Security Commissioner

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wrongly denied disability benefits. He presents two arguments. First, he asserts that the

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Administrative Law Judge (ALJ) improperly discredited, in part, Plaintiff’s testimony

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about his subjective symptoms.

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discounted the third-party statement of his (Plaintiff’s) wife. The Court disagrees on both

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counts and will affirm.

Second, Plaintiff claims that the ALJ improperly

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Plaintiff complained that he was unable to work due to a combination of

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impairments, most of which the second of two ALJs – after an initial 2010 decision was

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remanded by the Appeals Council – agreed met the minimal test for being “severe.” These

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included morbid obesity with treated sleep apnea; degeneration of the lumbosacral spine

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and left knee; mood disorder; and abuse of multiple drugs. See Administrative Record

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(AR) 14. The second ALJ agreed with Plaintiff that he was unable to return to his prior

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work as a janitor. AR 18. Based in part on a partial discrediting of Plaintiff’s subjective

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complaints, however, the ALJ went on to find that Plaintiff’s residual function capacity

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(RFC) left him able to perform work for which jobs existed. AR15-20. Plaintiff argues

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that the ALJ erred in discrediting Plaintiff’s subjective testimony. The ALJ based her

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credibility decision on a relative lack of evidence to support the Plaintiff’s reported degree

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of limitation, in addition to other factors.

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An ALJ may consider whether the objective medical evidence supports the

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degree of limitation alleged by a claimant, but the lack of such objective evidence “cannot

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form the sole basis for discounting [subjective] testimony.” Burch v. Barnhart, 400 F.3d

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676, 681 (9th Cir. 2005). Here, the ALJ incorporated the prior ALJ’s opinion, AR 12,

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which cited several ways in which the objective medical evidence did not fully support

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limitations jibing with Plaintiff’s subjective account. AR 93-94. For example, Plaintiff

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claimed to suffer one- to three-minute-long seizures bi-monthly, during which he lost

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consciousness. AR 215. But the objective medical evidence, including a 2005 brain CT

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study and 2009 cranial MRI, failed to support such a diagnosis. AR 93, 292 (2005

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emergency room treatment record) (“CT Brain - Neg.”), 355 (2009 MRI report suggesting

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only a referral to otolaryngologist). (The initial ALJ noted later in his opinion that, even

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if he granted Plaintiff the benefit of the doubt by assuming that a seizure disorder existed,

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there were no indications that any “seizures cannot be completely controlled with”

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medications. AR 94. On the contrary, Plaintiff “indicates he always takes prescribed

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Dilantin which controls his seizures,” yet “the record shows that he has been noncompliant

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with prescribed care on at least one occasion[,] and there is no evidence to show that the

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dosage is a therapeutic concentration[.]” AR 94, citing AR 290-302; see also AR 74

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(testimony at first hearing). Finally, Plaintiff admitted at the first hearing, in June 2009,

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that he had not had a seizure in 2009 and could not even remember the last time he had

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suffered one. AR 94, 69-70.) Similarly lacking were objective medical findings to support

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Plaintiff’s reported degree of suffering from back pain and sleep apnea. AR 93 (noting that

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“diagnosis” of “chronic back pain” at AR 352 was unsupported by medical evidence).
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Substantial evidence thus supports the ALJ’s finding that the objective findings did not

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fully support Plaintiff’s subjective complaints about the extent of his symptoms and

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limitations. As Burch explained, however, another factor is required, also supported by

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substantial evidence.

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Here, several additional factors, relevant in “ordinary techniques of credibility

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evaluation,” see Thomas v. Barnhart, 278 F3d 947, 958-60 (9th Cir. 2002), enjoy

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evidentiary support in the record and were cited by one or both ALJs. For example, as

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noted immediately above, Plaintiff not only had been noncompliant in his medical regimen,

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but he also falsely stated that he had been compliant. Perhaps worse, Plaintiff repeatedly

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avoided direct answers to routine questions during the 2009 hearing and during his field-

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office interview. AR 94 (decision), 63-79 (first ALJ’s examination of Plaintiff), 206 (field

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office agent’s interview notes) (Plaintiff was “very, very, very evasive” in response to even

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“simple questions”).

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prescriptions suggested drug-seeking behavior. AR 94, 321 (2006 treatment notes stating,

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“Pt. told we won’t refill meds if lost again”); see also AR 300 (emergency room treatment

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notes stating flatly, “Drug seeker”).

Finally, the first ALJ noted that Plaintiff’s reports of “lost”

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Plaintiff’s second and final argument is that the ALJ improperly discounted

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Plaintiff’s wife’s third-party statement (AR 278-85). The ALJ must base such third-party

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credibility findings on “reasons that are germane to [the specific] witness.” Dodrill v.

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Shalala, 12 F.3d 915, 919 (9th Cir. 1993). Here, as the ALJ tacitly noted, AR 18,

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Plaintiff’s wife essentially parroted Plaintiff’s own subjective account. In many parts of

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her statement, she supplies conclusory labels instead of describing the background facts

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supporting the label. For example, in response to the question on the form statement asking

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how the claimant’s ailments “affect his/her sleep,” she answered in question-begging

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fashion simply that “He has [a] sleeping disorder” – instead of stating something like, “He

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snores loudly and, at times, stops breathing entirely and will repeatedly wake up.” AR

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279.) Because the ALJ already gave sound reasons for discounting Plaintiff’s own account,

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it was proper for her to discount a third party statement apparently based on that account.
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Valentine v. Commissioner, 574 F.3d 685, 694 (9th Cir. 2009). (In contrast, it was error

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– albeit a harmless error, in light of the foregoing – for the ALJ to cite Plaintiff’s wife’s

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financial interest in his receiving benefits. Id.)

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In sum, the underlying opinion was free of material legal error and supported

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by substantial evidence. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). In

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accordance with the foregoing, the decision of the Commissioner is affirmed.

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DATED: November 19, 2013

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RALPH ZAREFSKY
UNITED STATES MAGISTRATE JUDGE

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