Leonard R. Greger v. Jo Anne B. Barnhart, Commissioner of Social Security

464 F.3d 968, 2006 U.S. App. LEXIS 23907, 2006 WL 2684753
CourtCourt of Appeals for the Ninth Circuit
DecidedSeptember 20, 2006
Docket04-35891
StatusPublished
Cited by531 cases

This text of 464 F.3d 968 (Leonard R. Greger v. Jo Anne B. Barnhart, Commissioner of Social Security) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Leonard R. Greger v. Jo Anne B. Barnhart, Commissioner of Social Security, 464 F.3d 968, 2006 U.S. App. LEXIS 23907, 2006 WL 2684753 (9th Cir. 2006).

Opinions

BOLTON, District Judge:

Leonard R. Greger appeals the district court’s order affirming the Commissioner of Social Security’s (“Commissioner”) denial of social security disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-33. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

FACTS AND PROCEDURAL HISTORY

Greger applied for social security disability insurance benefits on January 30, 2001. He alleged that he became disabled on June 25, 1998 due to triple bypass surgery, high blood pressure, a defective aorta, fibromyalgia, bad knees, and stomach problems. Greger’s disability insurance lapsed on December 31, 1998, and so he must establish that he was disabled and unable to work from the alleged onset date, June 25, 1998, to December 31, 1998 (the “relevant period”).

Greger was 49 years old, with a ninth-grade education, when his insured status expired. At his hearing on October 8, 2002, Greger testified that he worked as a truck driver until 1993 and was self-employed after that, doing miscellaneous carpentry-type jobs until shortly before he had open heart surgery in June 1998. Greger also had surgery in July 1998 to remove a perianal abscess with followup surgery in November 1998. Greger testi[971]*971fied that, during the relevant period, he experienced pain when sitting or standing for more than 30 minutes at a time, or walking more than half a block, shortness of breath with activity such as walking, and fatigue and shortness of breath caused by his heart medication, Atenolol. He said that he had suffered from carpal tunnel syndrome for five years. He also testified that the Veterans Administration (“VA”) diagnosed him with post traumatic stress disorder (“PTSD”) in August 1998, with a disability rating of 30%.1 Also, stomach surgery in 1976 left him with “dumping syndrome,” a difficulty in controlling one’s bowels.

The administrative law judge (“ALJ”) went through the five-step sequential evaluation process as required by 20 C.F.R. § 404.1520.22 At step one, the ALJ determined that Greger was not performing substantial gainful activity. At steps two and three, the ALJ found that Greger suffered from severe cardiac, gastrointestinal and musculoskeletal impairments, as well as gout and hypertension, but that his condition did not meet or equal a listed impairment. The ALJ also found that Greger’s PTSD and other psychological problems did not meet the criteria for a severe mental impairment during the relevant period. At steps four and five, the ALJ found that Greger’s problems prevented him from doing his past relevant work as a truck driver and carpenter, but that he retained the residual functional capacity (“RFC”) during the relevant period to perform other work at a light level of exertion. Accordingly, the ALJ found that Greger was not disabled.

Greger appealed the ALJ’s decision to the district court, and the magistrate judge entered judgment for the Commissioner. On appeal to this court, Greger advances the same issues he raised in the court below: that substantial evidence does not support the ALJ’s findings that Greger and his former girlfriend, Lois Shields, are not credible and that the ALJ’s RFC analysis was erroneous because it did not include all of Greger’s claimed limitations. Greger also raises two new issues that he did not raise in the district court: that the ALJ erred (1) by concluding that his psychological problems were not severe when the VA had rated him with a 30% mental disability; and (2) by not ordering a consultative psychological exam in order to fully develop the record.

STANDARD OF REVIEW

We review de novo a district court’s order upholding a denial of social security [972]*972disability benefits. Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir.1995). This review is limited, however, and “we may set aside a denial of benefits only if it is not supported by substantial evidence or if it is based on legal error.” Id. (citation omitted).

DISCUSSION

I.

Greger argues that the ALJ erred in finding him not credible and rejecting his testimony regarding his limitations.

To reject Greger’s subjective complaints, the ALJ “must provide ‘specific, cogent reasons for the disbelief.’ ” Lester, 81 F.3d at 834 (quoting Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir.1990)). In the absence of evidence that Greger is malingering, the ALJ’s reasons for rejecting his testimony “must be clear and convincing.” Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir.1989). When an ALJ “finds that a claimant’s testimony relating to the intensity of his pain and other limitations is unreliable, the ALJ must make a credibility determination citing the reasons why the testimony is unpersuasive.” Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999) (citing Bunnell v. Sullivan, 947 F.2d 341 (9th Cir.1991)). In making a credibility determination, the ALJ “must specifically identify what testimony is credible and what testimony undermines the claimant’s complaints!.] In this regard, questions of credibility and resolutions of conflicts in the testimony are functions solely of the Secretary.” Id. (citations omitted).

The ALJ provided clear and convincing reasons for rejecting Greger’s testimony and gave a detailed written opinion summarizing the specific statements by Greger that were not credible and the evidence that undermined Greger’s complaints. During the relevant six-month period and into 1999, Greger failed to report any shortness of breath or chest pain; there was no evidence that Greger participated in a planned cardiac rehabilitation program; and he never reported problems related to carpal tunnel syndrome. Moreover, Greger told the VA in 2000 that he did carpentry work “under the table” through 1999, well after his date last insured. The ALJ noted evidence that after his surgery Greger was “active with yard work, work around the house, and that he was able to continue his past work activities as a contractor.”

II.

Likewise, the ALJ did not find Shields credible and so disregarded her affidavit which attested to Greger’s fatigue and shortness of breath following his surgery and to pain and numbness in his hands.

While an ALJ must take into account lay witness testimony about a claimant’s symptoms, the ALJ may discount that testimony by providing “reasons that are germane to each witness.” Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir.1993).

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464 F.3d 968, 2006 U.S. App. LEXIS 23907, 2006 WL 2684753, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leonard-r-greger-v-jo-anne-b-barnhart-commissioner-of-social-security-ca9-2006.