Opinion
For Christopher Wayne Hardy, Plaintiff: Bill LaTour, LEAD ATTORNEY, Bill LaTour Law Offices, Colton, CA.
For Carolyn W. Colvin, Commissioner of Social Security, Defendant: Assistant U.S. Attorney LA-SSA, LEAD ATTORNEY, Office of the General Counsel for Social Security Adm., San Francisco, CA; Assistant U.S. Attorney SA-CV, LEAD ATTORNEY, AUSA - Office of U.S. Attorney, Santa Ana Branch-Civil Div, Santa Ana, CA; Jennifer A Kenney, LEAD ATTORNEY, SAUSA - Social Security Administration, Office of the General Counsel - Social Security Adm, San Francisco, CA.
MEMORANDUM AND ORDER
HON. KENLY KIYA KATO, United States Magistrate Judge.
Plaintiff Christopher Wayne Hardy seeks review of the final decision of the Commissioner of the Social Security Administration (" Commissioner" or " Agency") denying his applications for Title II disability insurance benefits (" DIB") and Title XVI supplemental security income (" SSI"). The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c). For the reasons stated below, the Commissioner's decision is AFFIRMED.
I .
PROCEDURAL BACKGROUND
On February 12, 2012, Plaintiff filed an application for DIB. AR at 9. On February 29, 2012, Plaintiff filed his application for SSI. Id. The applications were denied initially on June 27, 2012. Id. at 48, 58.
On August 3, 2012, Plaintiff requested a hearing before an Administrative Law Judge (" ALJ"). Id. at 66. On February 14, 2013, a hearing was held, before ALJ Joseph P. Lisiecki III, at which Plaintiff was represented by counsel. Id. at 28. On March 8, 2013, the ALJ issued a decision denying Plaintiff's applications. Id. at 6-18.
On March 21, 2013, Plaintiff asked the Agency's Appeals Council to review the ALJ decision. Id. at 4. On June 16, 2014, the Appeals Council denied Plaintiff's request for review. Id. at 1-3.
On July 30, 2014, Plaintiff filed the instant action. ECF Docket No. (" dkt.") 1. This matter is before the Court on the parties' Joint Stipulation, which the Court has taken under submission without oral argument. ECF No. 17 (" Joint Stipulation").
II .
RELEVANT FACTUAL BACKGROUND
Plaintiff was born on January 28, 1967, and his alleged disability onset date is March 31, 2010. AR at 9, 86, 93. Plaintiff was 43 years old at the time of the alleged onset date, and 46 years old at the time of the ALJ hearing.
Plaintiff had originally alleged an onset date of January 1, 2008, but voluntarily amended it to March 1, 2010, " with the advice and counsel of his representative." AR at 9.
Plaintiff completed the eleventh grade in 1983. Id. at 121. In 1997, Plaintiff worked as a warehouse driver/delivery person. Id. at 127. From 1998 to 2005, Plaintiff worked as a forklift operator in a warehouse. Id.
In his initial application for benefits, Plaintiff alleged disability based upon " COPD, high blood pressure, asthma, bronchitis, [and] high cholesterol ." Id. at 120. (numbering and paragraph breaks omitted).
III .
STANDARD FOR EVALUATING DISABILITY
In order to qualify for DIB or SSI, a claimant must demonstrate a medically determinable physical or mental impairment that (1) prevents her from engaging in substantial gainful activity and (2) is expected to result in death or to last for a continuous period of at least twelve months. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998). The impairment must render the claimant incapable of performing the work she previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
To decide if a claimant is disabled, and therefore entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. § § 404.1520, 416.920. The steps are:
(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.
(2) Is the claimant's impairment severe? If not, the claimant is found not disabled. If so, proceed to step three.
In evaluating whether a mental impairment is severe, the ALJ must rate the degree of functional loss resulting from the impairment, in four areas, collectively known as " paragraph B" criteria: (a) activities of daily living; (b) social functioning; (c) concentration, persistence, or pace; and (d) episodes of decompensation. 20 C.F.R. § § 404.1520a(c)(3), 416.920a(c)(3); see also Maier v. Comm'r of Soc. Sec. Admin., 154 F.3d 913, 914-15 (9th Cir. 1998). The Agency's regulations state: " If we rate the degree of your limitation in the first three functional areas as 'none' or 'mild' and 'none' in the fourth area, we will generally conclude that your impairment(s) is not severe, unless the evidence otherwise indicates that there is more than a minimal limitation in your ability to do basic work activities." 20 C.F.R. § § 404.1520a(d)(1), 416.920a(d)(1).
(3) Does the claimant's impairment meet or equal one of the specific impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (" Listing of Impairments")? If so, the claimant is found disabled. If not, proceed to step four.
" Between steps three and four, the ALJ must, as an intermediate step, assess the claimant's [residual functional capacity]." Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222-23 (9th Cir. 2009) (citing 20 C.F.R. § 416.920(e)). In determining a claimant's residual functional capacity, an ALJ must consider all relevant evidence in the record. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). This involves, inter alia, evaluating the credibility of a claimant's testimony regarding her capabilities. Chaudhry v. Astrue, 688 F.3d 661, 670 (9th Cir. 2012).
(4) Is the claimant capable of performing work she has done in the past? If so, the claimant is found not disabled. If not, proceed to step five.
(5) Is the claimant able to do any other work? If not, the claimant is found disabled. If so, the claimant is found not disabled.
Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001); 20 C.F.R. § § 404.1520(b)-(g)(1), 416.920(b)-(g)(1).
The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five. Bustamante, 262 F.3d at 953-54. Additionally, the ALJ has an affirmative duty to assist the claimant in developing the record at every step of the inquiry. Id. at 954. If, at step four, the claimant meets her burden of establishing an inability to perform past work, the Commissioner must show that the claimant can perform some other work that exists in " significant numbers" in the national economy, taking into account the claimant's residual functional capacity (" RFC"), age, education, and work experience. Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § § 404.1520(g)(1), 416.920(g)(1).
IV .
THE ALJ'S DECISION
A. Step One
At step one, the ALJ found Plaintiff " has not engaged in substantial gainful activity since March 31, 2010, the amended alleged onset date." AR at 11 (citation omitted).
B. Step Two
At step two, the ALJ found Plaintiff " has the following severe impairments: obesity; COPD; obstructive sleep apnea; hypertension; persistent cough/trouble breathing; and asthma." Id. (citations omitted).
C. Step Three
At step three, the ALJ found Plaintiff " does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1." Id. at 12 (citations omitted).
D. RFC Determination
Before reaching step four, the ALJ found Plaintiff has the RFC " to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except that the claimant is precluded from climbing ladders, ropes or scaffolds or working at unprotected heights; the claimant must avoid concentrated exposure to fumes, odors, dust, gasses, extreme heat, and extreme cold; and all other postural activities (climbing stairs/ramps, balancing, stooping, kneeling, crouching, and crawling) could be performed occasionally." Id. at 13.
E. Step Four
At step four, the ALJ found Plaintiff " is unable to perform past relevant work." Id. at 16 (citations omitted).
F. Step Five
At step five, the ALJ found " there are jobs that exist in significant numbers in the national economy that the claimant can perform." Id. at 17 (citations omitted).
Thus, the ALJ concluded Plaintiff was not disabled. Id. at 18.
V .
PLAINTIFF'S CLAIM
Plaintiff's sole claim challenges whether the ALJ properly considered Plaintiff's testimony and made proper credibility findings. Joint Stip. at 2.
VI .
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. This Court " may set aside a denial of benefits if it is not supported by substantial evidence or it is based on legal error." Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001) (citation and internal quotation marks omitted).
" Substantial evidence" is evidence a reasonable person might accept as adequate to support a conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla but less than a preponderance. Id. To determine whether substantial evidence supports a finding, the reviewing court " must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); see also Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (stating a reviewing court " may not affirm simply by isolating a specific quantum of supporting evidence") (citations and internal quotation marks omitted). " If the evidence can reasonably support either affirming or reversing, " the reviewing court " may not substitute its judgment" for that of the Commissioner. Reddick, 157 F.3d at 720-21; see also Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (" Even when the evidence is susceptible to more than one rational interpretation, we must uphold the ALJ's findings if they are supported by inferences reasonably drawn from the record."). The Court may review only the reasons stated by the ALJ in his decision " and may not affirm the ALJ on a ground upon which he did not rely." Orn v. Astr, 495 F.3d 625, 630 (9th Cir. 2007). If the ALJ erred, the error may only be considered harmless if it is " clear from the record" that the error was " inconsequential to the ultimate nondisability determination." Robbins, 466 F.3d at 885 (citation and internal quotation marks omitted).
VII .
DISCUSSION THE ALJ PROPERLY CONSIDERED PLAINTIFF'S TESTIMONY AND MADE PROPER CREDIBILITY FINDINGS
A. LEGAL STANDARD
" In assessing the credibility of a claimant's testimony regarding subjective pain or the intensity of symptoms, the ALJ engages in a two-step analysis." Molina, 674 F.3d at 1112 (citation omitted). " First, the ALJ must determine whether there is objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged." Id. (citations and internal quotation marks omitted). " If the claimant has presented such evidence, and there is no evidence of malingering, then the ALJ must give specific, clear, and convincing reasons in order to reject the claimant's testimony about the severity of the symptoms." Id. (citations and internal quotation marks omitted). " At the same time, the ALJ is not required to believe every allegation of disabling pain, or else disability benefits would be available for the asking . . . ." Id. (citations and internal quotation marks omitted).
" In evaluating the claimant's testimony, the ALJ may use ordinary techniques of credibility evaluation." Id. (citations and internal quotation marks omitted). " For instance, the ALJ may consider inconsistencies either in the claimant's testimony or between the testimony and the claimant's conduct; unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and whether the claimant engages in daily activities consistent with the alleged symptoms . . . ." Id. (citations and internal quotation marks omitted). " While a claimant need not vegetate in a dark room in order to be eligible for benefits, the ALJ may discredit a claimant's testimony when the claimant reports participation in everyday activities indicating capacities that are transferable to a work setting . . . ." Id. (citations and internal quotation marks omitted). " Even where those activities suggest some difficulty functioning, they may be grounds for discrediting the claimant's testimony to the extent that they contradict claims of a totally debilitating impairment." Id. (citations and internal quotation marks omitted).
" When evidence reasonably supports either confirming or reversing the ALJ's decision, we may not substitute our judgment for that of the ALJ." Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014) (citation and internal quotation marks omitted). Even if " the ALJ erred in relying on one of several reasons in support of an adverse credibility determination, " the error is considered harmless if " the ALJ's remaining reasoning and ultimate credibility determination were adequately supported by substantial evidence in the record." Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (citation and emphasis omitted). " So long as there remains substantial evidence supporting the ALJ's conclusions on credibility and the error does not negate the validity of the ALJ's ultimate credibility conclusion, such is deemed harmless and does not warrant reversal." Id. (citations, internal quotation marks, and alterations omitted); see also id. at 1163 (" Here, the ALJ's decision finding [the claimant] less than fully credible is valid, despite the [ALJ's] errors . . . .").
B. PLAINTIFF'S ARGUMENT AND TESTIMONY
In summarizing Plaintiff's alleged disability at the hearing, Plaintiff's counsel stated he was:
alleging disability at the present time due to a significant COPD condition that leaves him dramatically short of breath for a significant portion of every day, to the point where he has to recline rather than assume a normal sitting position, to keep his air passages open. He takes significant medication, as exhibited by our recent submittal of a medication list. That has a significant side effect, which we think is noted in the treatment records of significant urinary incontinence, which would also further keep him away from his workstation for a significant portion of every working day.
AR at 31-32.
When questioned by the ALJ as to why Plaintiff was unable to work, Plaintiff stated, " [b]ecause I am always running back and forth to the restroom and looking for air." Id. at 34. The ALJ asked Plaintiff how many hours of an eight hour workday would have to be spent in the restroom to which Plaintiff responded " [a] good portion. At least two to three hours, maybe more." Id. at 36. Plaintiff further testified his COPD caused him to suffer shortness of breath which, along with his asthma, resulted in his lungs feeling " like they're closing in on me." Id. at 32. Plaintiff claimed he would get dizzy and have to sit down, and that, as a result, he spends " more than 12 hours out of the day" in a reclining position. Id. at 33.
C. THE ALJ'S ADVERSE CREDIBILITY DETERMINATION
In assessing Plaintiff's RFC, the ALJ found Plaintiff's " medically determinable impairments could reasonably be expected to cause the alleged symptoms." AR at 14. However, the ALJ found Plaintiff's " statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible." Id.
The ALJ began his analysis by summarizing the medical evidence:
-In October 2010, Plaintiff " was evaluated by the prison medical staff, to confirm his asthma was better " which it is, since re-starting the flovent." Id. at 14 (citing medical records).
-In February 2011, Plaintiff was not taking his blood pressure medication regularly, and his high cholesterol was not controlled. Plaintiff's COPD/asthma was described as well-controlled. Plaintiff complained of constipation. Id. at 14 (citing medical records).
-In February 2012, Plaintiff complained of " chest discomfort" which was sometimes 9/10 in severity, but lasting less than five minutes. Plaintiff reported no headache or dizziness, but some lightheadedness. Plaintiff reported no wheezing or cough, but did have nasal congestion. Plaintiff also described no change in gastrointestinal function and denied having any change in bowel habits, constipation, diarrhea, abnormal stools, or incontinence. Id. (citing medical records).
-In March 2012, Plaintiff complained of some chest pain which was described as 3/10 in severity and lasting less than five minutes with mild exertion. Plaintiff reported no headache, but some lightheadedness. Plaintiff denied cough, congestion, wheezing, shortness of breath, ankle swelling, or sputum production, but report dyspnea upon exertion. Plaintiff denied urinary frequency or urgency, and any gastrointestinal symptoms including nausea, vomiting, or changes in bowel habits. Plaintiff was advised to decrease salt intake, follow a low cholesterol, low triglycerides diet, lose weight, and exercise for 30 minutes, five times per week. Id. at 15 (citing medical records).
-In April 2012, Plaintiff's blood pressure was 156/89 and weight was 336 pounds. Plaintiff was encouraged to exercise 30 minutes, five times a week, and weight loss strategies were discussed. Id. (citing medical records).
-On June 15, 2013, Plaintiff underwent a consultative internal medicine evaluation by Dr. John S. Godes, N.D. Plaintiff was able to get in and out of a chair with no apparent difficulty; his resting blood pressure was 142/86; and weight was 326 pounds. Evaluation for lungs and heart revealed no apparent abnormalities. There was no evidence of edema, swelling or effusion of the angles, and gait was normal. A pulmonary function test revealed some difficulty blowing, coughing, and shortness of breath. The test revealed mild obstructive disease and mild restrictive disease. Plaintiff was diagnosed with hypertension, COPD, and exogenous obesity. Dr. Godes opined Plaintiff would be able to lift 20 pounds occasionally and 20 pounds frequently, stand and/or walk two hours in an eight-hour day, sit for six hours in an eight-hour day, and should avoid exposure to potentially irritating fumes. Id. (citing medical records).
-On November 8, 2012, Plaintiff was seen by pulmonologist, Dr. Robby T. Ayoub. Plaintiff reported shortness of breath and a dry cough that was worse during the day and evening. Plaintiff reported frequently waking up with headaches and snoring loudly. Plaintiff denied chest pain, and denied difficult urination, frequent need to urinate, urgency, or other urinary symptoms. Plaintiff also denied gastrointestinal problems, including constipation or diarrhea. His blood pressure was 126/77, and oxygen saturation level was 97% with room air. Plaintiff was given a breathing treatment consisting of albuterol and budesonide, prescribed an albuterol inhaler, and advised to lose weight. Id. (citing medical records).
-On December 6, 2012, Plaintiff underwent respiratory testing and saw Dr. Ayoub. Plaintiff had normal affect, normal gait, normal reflexes, and normal sensation. He was described as morbidly obese and his blood pressure was 128/79. Plaintiff's oxygen saturation level was 95% with room air. No cardiac abnormalities were noted. Dr. Ayoub diagnosed Plaintiff with moderate obstructive sleep apnea, mild obstructive lung dysfunction, morbid obesity, and hypertension. Plaintiff was prescribed CPAP, using full face mask with chin strap, and heated humidifier. Plaintiff was instructed to stop taking all inhalers except ventolin, and continue with the scheduled cardiologist appointment. Id. at 15-16 (citing medical records).
-During his visit with Dr. Ayoub, Plaintiff further denied gastrointenstinal issues, including abdominal pain, abdominal masses/lumps, abdominal distension, indigestion, nausea, vomiting, constipation, and diarrhea. Id. at 259. Plaintiff also denied genitourinary issues, including difficult urination, pain or burning with urination, frequent need to urinate, urgency, needing to urinate frequently at night, inability to hold urine. Id.
After summarizing the medical evidence, the ALJ set forth his reasons for finding Plaintiff's statements concerning the intensity, persistence and limiting effects of these symptoms not entirely credible.
First, based upon the medical records, the ALJ found claimant's May 29, 2015 testimony regarding his inability to work due to bladder and/or bowel incontinence, and/or diarrhea to be inconsistent with his statements to health care providers. The ALJ specifically cited Plaintiff's recent statement in December 2012 in which he denied " any genitourinary or gastrointestinal symptoms such as pain, difficult urination, urinary frequency or urgency, constipation or diarrhea." Id. (citing medical records).
Second, based upon the medical records, the ALJ found Plaintiff's claim that he must remain in a reclined position throughout most of the day to be contradicted by his doctors' advice that he increase his level of exercise and physical activity. Id. In support of this finding, the ALJ stated " all of the medical evidence strongly supports a finding that claimant's heart and lungs could sustain moderate exercise, and it is highly likely that even a modest increase in his daily activity level would lead to a reduction in his symptoms." Id.
Third, the ALJ gave " great weight to the opinion of the consultative examiner, Dr. Godes who opined claimant would be able to lift and/or carry up to 20 pounds occasionally, and 10 pounds frequently, and that he could stand and/or walk for two hours in an eight-hour day, and sit for six hours in an eight-hour day." Id. (citation omitted).
Finally, despite these findings, the ALJ nonetheless gave " the claimant the benefit of the doubt" and " reduce[d] his residual functional capacity prophylactically, to lifting and carrying only 10 pounds (frequently and occasionally), and to limit all postural activities to only occasional, in light of his morbid obesity and subjectively reported symptoms of lightheadedness." Id.
D. THE ALJ'S ADVERSE CREDIBILITY DETERMINATION WAS SUPPORTED BY SPECIFIC, CLEAR, AND CONVINCING REASONS
The Court finds the ALJ provided " specific, clear, and convincing reasons" for finding Plaintiff not fully credible. Molina, 674 F.3d at 1112. Following an extensive review of the medical records, the ALJ found Plaintiff's statements concerning the intensity, persistence and limiting effects of these symptoms to be (1) inconsistent with his statements to his medical providers; (2) contrary to the advice of his medical providers; and (3) contrary to the opinion of consultative examiner, Dr. Godes. These reasons are legally sufficient to support the adverse credibility determination. See e.g., Carmickle, 533 F.3d at 1161 (" [c]ontradiction with the medical record is a sufficient basis for rejecting the claimant's subjective testimony") (citation omitted); Molina, 674 F.3d at 1113 (" [w]e have long held that, in assessing a claimant's credibility, the ALJ may properly rely on unexplained or inadequately explained failure . . . to follow a prescribed course of treatment") (internal quotations and citations omitted); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999) (" None of the [claimant's] treating or examining physicians ever indicated that [he] was disabled."). Morever, assuming arguendo " the ALJ erred in relying on one of several reasons" in making an adverse credibility finding, the " remaining reasoning and ultimate credibility determination were adequately supported by substantial evidence in the record." Carmickle, 533 F.3d at 1162. Thus, the ALJ's decision was valid. Id.
VIII .
CONCLUSION
IT IS THEREFORE ORDERED that judgment be entered AFFIRMING the decision of the Commissioner.
JUDGMENT
Pursuant to sentence four of 42 U.S.C. § 405(g), IT IS ADJUDGED that the decision of the Commissioner of the Social Security Administration is AFFIRMED.