20 CFR 404.1529
Rodrigues v. Heckler, 1A Unempl. Ins. Rep. (CCH) ¶ 17,011 (S.D. Cal. July 31, 1986)
ENRIGHT, District Judge:
Plaintiff brought this action under 42 U.S.C. § 405(g) after the Social Security Administration denied his application for disability benefits. He is a 36 year old male of strong build. He has not worked since December 17, 1981. On that date while working on an American fishing vessel, he was struck on the head 100 pound fish which had slipped through a net twenty to thirty feet above. Mr. Rodrigues was knocked unconscious, but revived shortly thereafter and was helped below deck. He had been wearing a hard-hat. He was not evacuated to the United States until four days later when the vessel put into port at Acapulco, Mexico. Upon his return to the states he was admitted to Sharp Cabrillo Hospital for ten days of treatment and observation.
On May 6, 1986, plaintiff filed a motion for summary judgment. Plaintiff's two paragraph brief, however, cites no authority and no facts from the record. On June 23, 1986, the government filed a cross-motion for summary judgment. Both motions are before the court for resolution.
The burden of proving disability is on the claimant. However, once he establishes a prima facie case of disability by showing that an impairment prevents his engaging in his previous occupation, the burden of going forward with evidence shifts to the Secretary. The Secretary then has the burden of proving that the claimant can engage in other types of substantial gainful work which exists in the national economy. Gonzalez v. Heckler, 784 F.2d 1417, 1419 (9th Cir. 1986); Hall v. Heckler, 602 F.2d 1372, 1375 (9th Cir. 1979.)
Rodrigues' claimed disability comprises complaints of low back pain, recurring dizziness, and seizures and/or blackouts. The ALJ determined that plaintiff established a prima facie case of disability. His back injury alone precludes his returning to work as a fisherman which requires heavy bending and stooping, and lifting 100 pound loads. The ALJ further determined, however, that plaintiff's subjective complaints of seizures and blackouts were exaggerated, and not adequately supported by medically acceptable objective clinical findings. The ALJ concluded that the blackouts, if occurring at all, did not happen with such frequency or severity as to preclude plaintiff's performing light exertional work, limited with respect to restrictions upon working at heights or around moving machinery.
This court must affirm the Secretary's finding that claimant is not disabled if it is supported by substantial evidence. 42 U.S.C. § 405(g); Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986); Benitez v. Califano, 573 F.2d 653, 655 (9th Cir. 1986). "Substantial evidence is 'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Howard v. Heckler, 782 F.2d at 1487, quoting Richardson v. Perales, 402, U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971).
Disposition of this appeal turns on two primary considerations: whether the Secretary has made sufficient specific findings to the credibility of plaintiff's subjective complaints, see e.g., Swanson v. Heckler, 763 F.2d 1061, 1064 (9th Cir. 1985); Murray v. Heckler, 722 F.2d 499, 501-02 (9th Cir. 1983); and whether the Secretary has "come forward with specific findings that the claimant has the physical and mental capacity to perform specified jobs, taking into consideration the requirements of the job as well as the claimant's age, education, and background." Gonzalez v. Heckler, 784 F.2d at 1419.
The Secretary's determination of plaintiff's residual capacity relied, in part on application of Rule 202.17 of the Medical Vocational grids. The Ninth Circuit has determined that the guidelines describe only "major functional and vocational patterns," and that if the guidelines" 'fail accurately to describe a claimant's particular limitations, the Secretary may not rely on them alone to show the availability of jobs for that claimant.'" Gallant v. Heckler, 753 F.2d 1450, 1456-57 (9th Cir. 1984).
Here, the ALJ noted that the particular combination of complaints precluded reliance upon the grids alone; he used them only a frame work and in conjunction with the testimony of a vocational expert.
Addressing the specific complaints, the record reflects that upon discharge from Sharp Cabrillo Hospital on January 8, 1982, treating physician Chandler diagnosed, "(1) Cerebral concussion [and] (2) Cervical and lumbar strain syndrome." He reported that x-rays of the cervical and lumbar spine were normal except for mild "slipping" at the "L1-2 level." A bone scan of the entire spine showed no abnormalities. By letter dated February 3, 1982, Dr. Chandler reported that plaintiff's "most prominent and aggravating symptoms consist of dizziness and blackout spells." Dr. Chandler, at plaintiff's request, referred him to Dr. Ford for neurological consultation, noting that it was both his and treating physician Renaudin's impression "that there has been some exaggeration of symptomology with this patient," suggesting that if this opinion was shared by Dr. Ford, psychiatric consultations would be appropriate.
Dr. Ford's letters following examinations in February 1982 relate plaintiff's description of his blackout spells, but note "no evidence of any organic neurological deficit." He reports a normal EEG, and opines that the spells described "could represent seizure disorder, but that [he] doubted it."
By March 25, 1983, however, faced with plaintiff's continued complaints of headaches and blackout spells, Dr. Ford stated in a letter to plaintiff's counsel that he could "only assume that they represent a post concussive syndrome." Despite a normal EEG, he began treating plaintiff for post traumatic seizure disorder, prescribing two anticonvulsant medications, Dilantin and Tegritol. Because plaintiff was complaining of three blackout spells per month, Dr. Ford opined that he could not return to work as a fisherman.
Treating physician John Cleary, a neurological surgeon, followed plaintiff's progress from 1982 to 1984, treating him for low back pain. By letter dated June 27, 1983, he described plaintiff's symptoms as mild, low back pain increasing with activity. A CT scan of the lumbar spine dated October 5, 1982 showed only minor bulging of the annulus at the 5th-8th lumbar disc. It was Dr. Cleary's opinion that plaintiff's back condition precluded only heavy lifting or stooping, but that the alleged blackout spells being treated by Dr. Ford precluded his returning to work.
None of the treating or consulting physicians ever witnessed one of these blackout spells, and plaintiff never sought medical assistance immediately after one of his alleged seizures.
Dr. Byron King, in his letter dated May 4, 1983, states, "It is my opinion that regarding the lower back problem alone, the patient would be able to return to work as a commercial fisherman, but would have to be careful about objects that he lifts. . . ."
Dr. Ford in late 1983 referred plaintiff to Dr. Lefebvre, a psychiatrist, who referred him to Dr. Shaddick, a psychologist and neuropsychologist. His six and one-half page report diagnosed. "Axis I: Epilepsy by history. Axis II: Deferred to Dr. Lefebvre. Axis III: Mild left cerebral cortical damage with primary temporoparietal involvement. The left temporal lobe appears to be most affected. Axis IV: Psychosocial stresses (unemployment, inability to function effectively on a daily basis, severity 4-moderate). Axis V: Highest level of adaptive functioning past year, 5-poor." He felt that plaintiff's disability as a result of these deficits was moderate.
On April 26, 1984, Dr. Freedman, a neurological surgeon, opined that the type of injury plaintiff sustained should not lead to a post-traumatic seizure disorder. He also questioned the consistency of plaintiff's presentation: "The 'seizures' as described by the patient have apparently changed so that he is giving quite a different history than he did originally do Drs. Renaudin and Ford." It was Dr. Freedman's opinion that, in all likelihood, the blackouts are "functional rather than organic [in] origin," but that if he was blacking out he would be precluded from driving a car and "totally disabled from returning to his usual work as a commercial fisherman."
At hearing, plaintiff complained of two or three seizures per month, each requiring two to three days of recovery. He also claimed to pass out four or five times per week, an ailment different from the seizures. He indicated that he, his wife and three children collect $700 per month in welfare, $150 per month in food stamps, and $360 per month in seaman's maintenance and cure. At the time of his hearing, he had a Jones Act claim pending against Pan-Pacific Fisheries. He has a fourth grade Portuguese education, and displays modest skills in English and Spanish.
A vocation expert testified that if plaintiff experienced seizure episodes with the frequency he claimed, and of the character claimed -- i.e., entailing muscle weakness and blurred vision for upward of four hours after each episode--he was not employable. However, if he experienced two or three blackouts as opposed to seizures per month, there would be approximately 20,000 jobs in San Diego County which he could perform in light, unskilled, sedentary positions such as a wrapper, packer/sorter, and hand assembly not involving moving machinery or heights.
Because of the lack of acceptable clinical evidence supporting a neurological deficit, the ALJ indicated that plaintiff's credibility assumed paramount importance. The court notes that "[w]here evidence is susceptible of more than one rational interpretation, it is the ALJ's conclusion which must be upheld," and "in reaching his findings, the ALJ is entitled to draw inferences logically flowing from the evidence." Gallant v. Heckler, 753 F.2d at 1453. The ALJ may disregard a claimant's self-serving statements if they are insufficiently supported by objective findings, id., at 1455, and he is not bound by even uncontroverted medical opinion on the issue of disability where there is a convincing reason for rejecting it. Id. at 1454.
The ALF found plaintiff's complaints to be less than wholly credible, concluding that if plaintiff experienced blackouts and/or seizures, their frequency and debilitating character were exaggerated. In reaching this conclusion, he relied first on the lack of neurological deficit reflected in the record, and on the doubts to the existence of a seizure disorder expressed by Dr. Ford in February 1982, and again in May 1983 when he ordered psychiatric evaluation after plaintiff continued to complain of blackouts despite anticonvulsant treatment and continued negative clinical findings. While Dr. Ford's treatment presumed the presence of blackouts, and while Dr. Lefebvre accepted plaintiff's allegations in this regard in finding no significant psychiatric impairment, Dr. Freedman in April 1984 questioned the consistency of the history reported in plaintiff, indicating that plaintiff's problem was likely "functional rather than organic.'
The ALJ then noted that because of the pendency of Jones Act litigation, plaintiff had little motivation to work, relying heavily on inconsistencies and contradictions in the record which tended to erode plaintiff's credibility by documenting a tendency to exaggerate.
For instance, plaintiff told Dr. Lefebvre that since the age of 27 he had been a nautical navigator. When questioned about this at hearing he stated that she must have misunderstood him; he had only been engaged as an ordinary fisherman.
In April and May 1983 plaintiff claimed he had only a fourth grade Portuguese education. He told Dr. Shaddick in November 1983, however, that he had an "American high school" education. He repeated this same allegation to Dr. Lefebvre, adding that he had attended a university in Mexico. At hearing he denied ever having claimed to have an education beyond the fourth grade.
He also claimed at hearing that he had not driven since the shipboard accident. On January 25, 1983, however, he told Dr. John Cleary that subsequent to his accident he had "two passing out spells while driving."
The ALJ was not alone in noticing inconsistencies in plaintiff's stated history. Dr. Shaddick's report refers to inconsistencies between claimant's statements and "information available in other medical reports."
The court notes an inconsistency concerning the severity of plaintiff's initial trauma. In December 1981, he told the attending physicians at Sharp Memorial Hospital that other crewmembers had told him that he had been unconscious for fifteen minutes after being struck by the fish. Months later he told Dr. Ford that he had been unconscious for twenty minutes. By September 20, 1982, he had stated to attending physicians that he had been unconscious for three-quarters of an hour. And, by May 1983, he had told consulting physicians that he had been unconscious for approximately three hours.
Where, as here, medical reports are inconclusive. "questions of credibility and resolution of conflicts in the testimony are functions solely of the Secretary." Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). The inconsistencies in plaintiff's statements and complaints support the ALJ's determination that he is not wholly credible. The ALJ's finding that plaintiff can engage in light sedentary work not involving moving machinery or height takes into consideration plaintiff's subjective complaints and credibility, the lack of objective findings supporting the alleged inflictions, the conflicting and inconclusive medical reports, as well as expert vocational testimony. It presumes that plaintiff experiences back trouble and some passing out episodes, but not to the degree claimed. Additionally, plaintiff's depression is attributed to an adjustment disorder associated, in part, with his dependence upon his wife and lack of employment. His obtaining work would mitigate, not enhance, any psychological impairment.
Under these circumstances, the court finds substantial evidence supporting the Secretary's determination that claimant is not disabled. The ALJ's determination that claimant complaints are not wholly credible must "be given great weight." See, Nyman v. Heckler, 779 F.2d 528, 531, (9th Cir. 1985).
Upon due consideration of the parties' memoranda and exhibits, and for the reasons set forth herein, the court denies plaintiff's motion for summary judgment, and grants the Secretary's cross-motion for summary judgment.
Pursuant to this court's Memorandum Decision dated July 30, 1986, the court hereby denies plaintiff's motion for summary judgment and grants the Secretary's cross-motion for summary judgment.
IT IS SO ORDERED
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