FILED
NOT FOR PUBLICATION APR 05 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
PAUL L. RAMIREZ, No. 08-17591
Plaintiff - Appellant, D.C. No. 2:07-cv-01787
v.
MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Submitted March 12, 2010**
San Francisco, California
Before: HALL, NOONAN, and CALLAHAN, Circuit Judges.
Ramirez filed an application for disability insurance benefits based on
Irritable Bowel Syndrome ('IBS') and depression, and an Administrative Law
Judge ('ALJ') held that Ramirez was not disabled for purposes of the Social
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Security Act. The Appeals Council denied review. Ramirez sought review in the
United States District Court for the District of Arizona, which affirmed. The
district court had jurisdiction pursuant to 42 U.S.C. y 405(g). This court has
jurisdiction pursuant to 28 U.S.C. y 1291, and we also affirm.
The ALJ determined that Ramirez had the residual functional capacity
('RFC') to perform a significant range of light worµ, including worµing as a
cashier or janitor. The ALJ stated that the Vocational Expert testified that there
were 5,000 cashier jobs in Arizona and 230,000 nationwide and that there were
1,000 janitor jobs in Arizona and 20,000 nationwide. The Vocational Expert
provided these number based on a hypothetical individual of Ramirez's age,
education, and worµ experience who needed five or fewer bathroom breaµs a day.
The ALJ's conclusions were supported by substantial evidence. The ALJ
fulfilled its duties to maµe a 'function-by function' analysis of Ramirez's RFC as
required by 20 C.F.R. y 404.1545 and Social Security Ruling 96-8p. The ALJ
considered all of Ramirez's physical, mental, and other limitations before
concluding that Ramirez retained the capacity for a significant range of light worµ.
He considered at length whether IBS-related impairments, including the frequency
and severity of Ramirez's symptoms, would permit Ramirez to worµ a full-time
job.
2
Although the ALJ did not explicitly state the number of bathroom breaµs
Ramirez would need to taµe over the course of a worµ day, our review of the
record indicates that the ALJ's conclusions were based upon a finding that Ramirez
required five or fewer bathroom breaµs a day. The ALJ also credited Ramirez's
wife's testimony, which indicated that Ramirez needed to use the bathroom up to
five times a day.
Although Ramirez and his treating physician, Dr. Asin, stated that Ramirez
needed to use the bathroom up to fifteen times a day, the ALJ provided clear and
convincing reasons for discrediting these statements. Accordingly, he did not need
to factor this higher frequency of bathroom breaµs into his RFC analysis. Bayliss
v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) ('Preparing a function-by-
function analysis for the medical conditions or impairments that the ALJ found
neither credible nor supported by the record is unnecessary.').
It may be true that the frequency of an individual's IBS-related symptoms
sometimes can be demonstrated only by that individual's subjective complaints.
However, Ramirez's statements regarding the severity of his symptoms are
inconsistent with Dr. Asin's treatment notes and Ramirez's wife's testimony. Dr.
Asin's notes indicate that three Percocet a day controlled Ramirez's pain and
stopped loose stools, and that Morphine, Paxil and Lorcet, were also effective.
3
When Ramirez followed a gluten-free diet, his diarrhea decreased to twice per day.
Dr. Asin's notes report that by September 2004, Ramirez's symptoms had
improved overall and by November 2004 were 'stable.' Since late 2004, he has
had very little treatment.
Moreover, in addition to testifying that Ramirez needed to use the bathroom
up to five times a day, Ramirez's wife testified that he was able to care for his
stepchild, drive, prepare meals, care of his personal needs, mow the lawn, shop for
food, and perform household chores. See Burch v. Barnhart, 400 F.3d 676, 680-81
(9th Cir. 2005)(discrediting subjective complaints based upon claimant's
'reasonably active lifestyle'); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir.
2001) (same); Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989) (same).
Because Dr. Asin's statement that Ramirez required up to fifteen bathroom
breaµs a day derived primarily from Ramirez's discredited subjective complaints,
the ALJ also properly discredited Dr. Asin's statement.1 Andrews v. Shalala, 53
F.3d 1035, 1043 (9th Cir. 1995) ('[A]n opinion of disability premised to a large
1
We need not resolve whether the ALJ needed to provide 'clear and
convincing' or merely 'specific and legitimate' reasons for rejecting Dr. Asin's
statements about the frequency and severity of Ramirez's IBS symptoms, because
the reasons set forth by the ALJ were clear and convincing. See Bayliss, 427 F.3d
at 1216 (holding that discrepancies between physician's statements regarding
severity of plaintiff's impairments and his clinical notes were clear and convincing
reasons for rejecting statements).
4
extent upon the claimant's own accounts of his symptoms and limitations may be
disregarded, once those complaints have themselves been properly discounted.');
see also Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009).
AFFIRMED.
5
FILED
Ramirez v. Astrue, No. 08-17591 APR 05 2010
MOLLY C. DWYER, CLERK
NOONAN, Circuit Judge, dissenting: U.S . CO U RT OF AP PE A LS
The µey issue was the number of bathroom breaµs Ramirez needed. The
ALJ accepted the wife's estimate; not Ramirez's. Given the reluctance a husband
might have to maµe a report to his wife on his trips to the toilet, the ALJ's source
was dubious. In the absence of other evidence, we are compelled to accept
Ramirez's testimony of 15 trips per day maµing the VE's job estimate untenable.