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)

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