Kick v. Carolyn W Colvin

Filing 17

MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. For these reasons, the Agency's decision is affirmed and the case is dismissed with prejudice. IT IS SO ORDERED. (See document for further details). (sbou)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 MICHAEL KICK, Plaintiff, 11 12 13 14 15 v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 13-1444-PJW MEMORANDUM OPINION AND ORDER 16 17 I. INTRODUCTION 18 Plaintiff appeals a decision by Defendant Social Security 19 Administration (“the Agency”), denying his application for Widower’s 20 Insurance Benefits (“WIB”). 21 Judge (“ALJ”) erred when he found that Plaintiff was not credible, 22 failed to contact the treating doctors to further develop the record, 23 and determined Plaintiff’s residual functional capacity. 24 reasons explained below, the Court concludes that the ALJ did not err. 25 26 II. He claims that the Administrative Law For the SUMMARY OF PROCEEDINGS In February 2010, Plaintiff applied for WIB based on chronic pain 27 in his neck, shoulder, elbow, and hands; nerve surgeries; post- 28 laminectine syndrome; osteoarthritis; fibromyalgia; lumbar disc 1 degeneration; triglyceride anemia; and depression. 2 Record (“AR”) 96, 103, 130, 175.) 3 initially and on reconsideration and he requested and was granted a 4 hearing before an ALJ. 5 2011, he appeared with counsel and testified at the hearing. 6 59.) 7 benefits. 8 which denied review. 11 On November 17, (AR 33- On December 29, 2011, the ALJ issued a decision denying (AR 11-21.) Plaintiff appealed to the Appeals Council, (AR 1-7.) He then commenced this action. III. A. His application was denied (AR 60-61, 65, 68-79, 84-86.) 9 10 (Administrative ANALYSIS The Development of the Record Plaintiff contends that the ALJ erred when he failed to obtain 12 additional medical records from his treating physicians. 13 at 3-5.) 14 did not err. 15 (Joint Stip. For the following reasons, the Court concludes that the ALJ ALJs have a duty to fully and fairly develop the record, which 16 duty is triggered by inadequate or ambiguous evidence that impedes an 17 ALJ’s ability to properly evaluate a claim. 18 F.3d 1144, 1150 (9th Cir. 2001); see also 20 C.F.R. §§ 404.1512(e), 19 416.912(e). 20 because he bears the burden of proving his entitlement to benefits, 21 see Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005), and 22 cannot meet that burden if he does not provide the medical records to 23 support his claims. 24 develop the record, the claimant has the burden of proving that he was 25 prejudiced by the error. 26 Cir. 2010) (“Where harmfulness of the error is not apparent from the 27 circumstances, the party seeking reversal must explain how the error 28 caused harm.”) (citing Shinseki v. Sanders, 556 U.S. 396, 409 (2009)). Tonapetyan v. Halter, 242 A claimant has a corresponding duty to perfect the record Furthermore, even when the ALJ errs in failing to See McLeod v. Astrue, 640 F.3d 881, 887 (9th 2 1 In his decision, the ALJ observed: 2 The claimant’s doctors have noted that they prepared documents 3 for the claimant’s lawyer to use to support his disability 4 application, however since they do not appear to have been 5 submitted, and considering the related treatment notes reveal 6 good functioning, they would not have bolstered the claimant’s 7 application. 8 (AR 19.) 9 Plaintiff argues that, because the ALJ knew that these documents 10 existed, he had a duty to ask about them and, by failing to do so, he 11 failed to protect Plaintiff’s interests. 12 Plaintiff and his counsel were obviously aware of these documents and 13 they never submitted them before the hearing. 14 hearing, the ALJ asked counsel if there was anything else for him to 15 consider and counsel told him “no.” 16 rely on this representation. 17 counsel did not submit these records to the ALJ or the Appeals 18 Council. 19 could consider their significance in reaching its decision in this 20 appeal. 21 counsel’s actions (or lack thereof) is that there are no records from 22 the treating doctors that would establish that Plaintiff was disabled 23 during the relevant period. 24 did not err by failing to pursue these records and that, even if he 25 did, any error was harmless.1 The Court disagrees. (AR 58.) First, At the end of the The ALJ was free to After the hearing, Plaintiff and his Nor have they submitted them to the Court so that the Court The inference the Court draws from Plaintiff’s and his As such, the Court concludes that the ALJ 26 27 28 1 Plaintiff failed to direct the Court where to look in the almost 1500-page record for information about the additional records. After combing through the record, the Court located a reference to 3 1 2 B. The ALJ’s Credibility Determination Plaintiff testified at the administrative hearing that he 3 suffered from constant pain all over his body that prevented him from 4 engaging in most physical activities. 5 this testimony because Plaintiff’s reported activities were 6 inconsistent with his alleged limitations. 7 contends that this was not a clear and convincing reason for rejecting 8 his testimony. 9 the Court disagrees. 10 (AR 40-50.) (Joint Stip. at 14-15.) The ALJ rejected (AR 17.) Plaintiff For the following reasons, ALJs are tasked with judging the credibility of the claimants. 11 In making these determinations, they may employ ordinary credibility 12 evaluation techniques. 13 1996). 14 of an impairment which could reasonably be expected to produce the 15 symptoms alleged and there is no evidence of malingering, the ALJ can 16 only reject the claimant’s testimony for specific, clear, and 17 convincing reasons, id. at 1283-84, that are supported by substantial 18 evidence in the record. 19 Cir. 2002). 20 Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. But, where a claimant has produced objective medical evidence Thomas v. Barnhart, 278 F.3d 947, 959 (9th Plaintiff testified at the hearing that he suffered from constant 21 pain throughout his body, could not lift more than a gallon of milk, 22 could not sit or stand for more than five or ten minutes at a time, 23 and spent 95% of his time lying down. (AR 41-46.) He also testified 24 25 26 27 28 “paperwork” in May 2011, six months before the hearing, by Plaintiff’s therapist, who notes that Plaintiff had brought in a form from his lawyer for his therapist or psychiatrist to fill out. (AR 1249.) There is no evidence that this paperwork was ever completed or that, if it was, it would have bolstered Plaintiff’s case. 4 1 that he could barely walk 100 feet to his mailbox and needed help 2 caring for himself. 3 (AR 48, 49-50.) In rejecting this testimony, the ALJ pointed to Plaintiff’s 4 medical records, which he found inconsistent with Plaintiff’s 5 testimony. 6 most relevant period due to the fact that Plaintiff’s date last 7 insured was July 3, 2008--Plaintiff reported to his therapist that he 8 had gone swimming, fishing, and walking around his neighborhood, 9 activities which conflicted with his testimony that he could barely do (AR 17.) They revealed, for example, that, in 2008--the 10 anything except lie down. 11 among other things, that he was being “harassed” by a new ranger at 12 his “regular fishing place.” 13 that he had been walking more and had lost weight. 14 September 2009, he told his therapist that he was continuing to get 15 out of the house to walk. 16 (AR 317-24.) (AR 349.) In April 2009, he reported, In August 2009, he reported (AR 357.) In (AR 361.) The ALJ’s rejection of Plaintiff’s testimony on the ground that 17 it was inconsistent with his statements to his doctor is supported by 18 the record and is affirmed. 19 1104, 1113 (9th Cir. 2012) (“Even where [a claimant’s] activities 20 suggest some difficulty functioning, they may be grounds for 21 discrediting the claimant’s testimony to the extent that they 22 contradict claims of a totally debilitating impairment.”) (citing 23 Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1225 (9th Cir. 2010)). 24 C. 25 See, e.g., Molina v. Astrue, 674 F.3d The ALJ’s Residual Functional Capacity Determination Plaintiff contends that the ALJ erred when he did not include any 26 exertional limitations in the residual functional capacity finding or 27 in the hypothetical question to the vocational expert despite the fact 28 that he had concluded that Plaintiff suffered from numerous severe 5 1 physical impairments. 2 (Joint Stip. at 12-14.) This claim, too, is rejected. 3 The ALJ found that Plaintiff’s spinal disorders, fibromyalgia, 4 anemia, chronic pain syndrome with long term opioid use, history of 5 multiple surgeries, and obesity were severe impairments. 6 include any limitations based on these impairments, however, because 7 he concluded that they did not limit Plaintiff’s functioning. 8 example, he noted that Plaintiff’s fibromyalgia was well treated with 9 medication. (AR 18.) He did not For He also found that Plaintiff’s alleged level of 10 opioid use was not supported by the medical evidence. 11 he found no evidence that Plaintiff’s obesity significantly interfered 12 with his ability to work. 13 issues, the ALJ concluded that the objective evidence did not support 14 Plaintiff’s claim that they limited him. (AR 19.) (AR 18.) And As for Plaintiff’s orthopedic (AR 20.) 15 Because the ALJ concluded that these impairments did not impact 16 Plaintiff’s ability to work, a finding Plaintiff has not challenged, 17 he was not required to include any limitations based on them in the 18 residual functional capacity finding or the hypothetical question to 19 the vocational expert. 20 (9th Cir. 2001) (explaining ALJ only required to include limitations 21 in residual functional capacity and hypothetical question to 22 vocational expert that are supported by substantial evidence in the 23 record). Osenbrock v. Apfel, 240 F.3d 1157, 1163-64 24 25 26 27 28 6 1 2 IV. CONCLUSION For these reasons, the Agency’s decision is affirmed and the case 3 is dismissed with prejudice. 4 IT IS SO ORDERED. 5 DATED: March 9, 2015. 6 7 8 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S:\PJW\Cases-Social Security\KICK, 1444\Memorandum Opinion and Order.wpd 7

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