Kristin J. Hawthorne v. Michael J. Astrue, No. 2:2010cv05760 - Document 21 (C.D. Cal. 2011)

Court Description: DECISION AND ORDER by Magistrate Judge Carla Woehrle, IT IS ORDERED that: 1. The decision of the Commissioner is AFFIRMED. 2. This action is DISMISSED WITH PREJUDICE. (SEE ORDER FOR FURTHER DETAILS) (lmh)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 KRISTIN HAWTHORNE, 13 ) ) ) ) ) ) ) ) ) ) ) Plaintiff, v. 14 15 MICHAEL J. ASTRUE, Commissioner, Social Security Administration, 16 Defendant. 17 No. CV 10-5760-CW DECISION AND ORDER 18 19 The parties have consented, under 28 U.S.C. § 636(c), to the 20 jurisdiction of the undersigned Magistrate Judge. 21 review of the Commissioner s denial of disability and disability 22 insurance benefits. The court finds that judgment should be granted in 23 favor of defendant, affirming the Commissioner s decision. 24 25 I. Plaintiff seeks BACKGROUND Plaintiff Kristin Hawthorne was born on June 16, 1980, and was 26 25-years old at the time of her administrative hearing. 27 [Administrative Record ( AR ) 18, 90.] She has at least a high school 28 education and past relevant work experience as a loan officer, loan 1 1 processor, and escrow clerk. 2 result of continued pain and limitations stemming from injuries 3 suffered in a 1997 car accident.1 [AR 26, 107.] 4 5 II. [AR 18.] She alleges disability as a PROCEEDINGS IN THIS COURT Plaintiff s complaint was lodged and filed on August 3, 2010. On 6 February 23, 2011, defendant filed an answer and plaintiff s 7 Administrative Record ( AR ). 8 their Joint Stipulation ( JS ) identifying matters not in dispute, 9 issues in dispute, the positions of the parties, and the relief sought 10 by each party. 11 On June 27, 2011, the parties filed oral argument. 12 This matter has been taken under submission without III. PRIOR ADMINISTRATIVE PROCEEDINGS 13 Plaintiff applied for disability and disability insurance 14 benefits under Title II of the Social Security Act on December 12, 15 2007, alleging disability since March 1, 2006. [AR 90.] 16 After the application was denied initially and upon 17 reconsideration, plaintiff requested an administrative hearing, which 18 was held on June 24, 2009, before Administrative Law Judge ( ALJ ) 19 David J. Marcus [AR 21-51.] 20 testimony was taken from both plaintiff, [AR 25-23], and vocational 21 expert ( VE ) Mr. Leeth [AR 43-48]. Plaintiff appeared with counsel, and The ALJ denied benefits in an 22 1 23 24 25 26 27 28 Specifically, plaintiff contends she is unable to work due to the following: Metal bar in left femur, screws in the hip, metal plates and screws in the right arm, three plates I the jaw, arthritis...three surgeries totaling over 10 hours, and 3 blood transplants. Left side broken hip, pelvis, and femur. Right side a broken ankle and arm. I broke my jaw in three places. My condition has worsened, I currently have a piece of bone stuck in between two muscles in my left leg and a piece of my radius is stuck in my wrist. I have lock jaw, back spasms, arthritis has taken a turn into serious. [AR 107] 2 1 administrative decision filed on August 28, 2009. [AR 12-19.] 2 the Appeals Council denied review on June 19, 2010, the ALJ s decision 3 became the Commissioner s final decision. [AR 1 2.] 4 followed. 5 6 IV. When This action STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 7 Commissioner s decision to deny benefits. The Commissioner s (or 8 ALJ s) findings and decision should be upheld if they are free of 9 legal error and supported by substantial evidence. However, if the 10 court determines that a finding is based on legal error or is not 11 supported by substantial evidence in the record, the court may reject 12 the finding and set aside the decision to deny benefits. 13 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. 14 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 15 F.3d 1157, 1162 (9th Cir. 16 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 17 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada 18 v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). 19 See Aukland 2001); Tackett v. Apfel, 180 F.3d 1094, Substantial evidence is more than a scintilla, but less than a Reddick, 157 F.3d at 720. It is relevant evidence 20 preponderance. 21 which a reasonable person might accept as adequate to support a 22 conclusion. 23 a finding, a court must review the administrative record as a whole, 24 weighing both the evidence that supports and the evidence that 25 detracts from the Commissioner s conclusion. 26 can reasonably support either affirming or reversing, the reviewing 27 court may not substitute its judgment for that of the Commissioner. 28 Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162. Id. To determine whether substantial evidence supports 3 Id. If the evidence V. 1 DISCUSSION 2 A. THE FIVE-STEP EVALUATION 3 To be eligible for disability benefits a claimant must 4 demonstrate a medically determinable impairment which prevents the 5 claimant from engaging in substantial gainful activity and which is 6 expected to result in death or to last for a continuous period of at 7 least twelve months. 8 721; 42 U.S.C. § 423(d)(1)(A). 9 10 11 12 13 14 15 16 17 18 Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at Disability claims are evaluated using a five-step test: Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a severe impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 19 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 20 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 21 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 22 C.F.R. § 404.1520, § 416.920. If a claimant is found disabled or 23 not disabled at any step, there is no need to complete further 24 steps. Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520. 25 Claimants have the burden of proof at steps one through four, 26 subject to the presumption that Social Security hearings are non27 adversarial, and to the Commissioner s affirmative duty to assist 28 4 1 claimants in fully developing the record even if they are represented 2 by counsel. 3 1288. 4 made, and the burden shifts to the Commissioner (at step five) to 5 prove that, considering residual functional capacity ( RFC )2, age, 6 education, and work experience, a claimant can perform other work 7 which is available in significant numbers. 8 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520. 9 10 Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at If this burden is met, a prima facie case of disability is B. Tackett, 180 F.3d at 1098, THE ALJ S EVALUATION IN PLAINTIFF S CASE Here, the ALJ found plaintiff met the insured status requirements 11 of the Social Security Act (the Act ) through December 31, 2011. He 12 found that she had not engaged in substantial gainful activity from 13 her alleged onset date, March 1, 2006 (step one); that she had the 14 severe impairments of: status post motor vehicle accident with 15 fractured mandible, fractured left femur, fractured right radius (step 16 two); and that she did not have an impairment or combination of 17 impairments that met or equaled a listing (step three). [AR 14-15.] 18 The ALJ found that plaintiff has the RFC to: lift and carry twenty 19 pounds occasionally and ten pounds frequently; stand and walk two 20 hours out of an eight hour workday; sit six hours of an eight hour 21 workday; and occasionally kneel, with a preclusion from squatting 22 (step four) [AR 15.] 23 2 24 25 26 27 28 Residual functional capacity measures what a claimant can still do despite existing exertional (strength-related) and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.s. 5-6 (9th Cir. 1989). Nonexertional limitations limit ability to work without directly limiting strength, and include mental, sensory, postural, manipulative, and environmental limitations. Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993); Cooper, 800 F.2d at 1155 n.7; 20 C.F.R. § 404.1569a(c). Pain may be either an exertional or a nonexertional limitation. Penny, 2 F.3d at 959; Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985); 20 C.F.R. § 404.1569a(c). 5 1 The ALJ found that this RFC would permit plaintiff to perform her 2 past relevant work as a loan officer, loan processor and escrow clerk. 3 [AR 18.] 4 The ALJ went on to conclude that, based on plaintiff s RFC,3 age, 5 education and work experience, the Medical-Vocational guidelines 6 support a finding of not disabled and that, in the alternative, 7 there are other jobs that exist in significant numbers in the national 8 economy that plaintiff could perform (step five). [AR 18.] 9 10 Accordingly, plaintiff was found not not disabled as defined by the Act. [AR 19.] 11 C. 12 The Joint Stipulation identifies only one disputed issue: whether 13 ISSUES IN DISPUTE the ALJ properly rejected plaintiff s testimony. [JS 4.] 14 D. 15 Plaintiff argues the ALJ failed to offer any legally sufficient ISSUE: CREDIBILITY ASSESSMENT 16 reason for declining to credit her statements about the severity of 17 her pain and other limitations. 18 If an ALJ chooses to disregard a plaintiff's testimony, he must 19 set forth specific cogent reasons for disbelieving it. 20 Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). 21 credibility determination must be made with findings sufficiently 22 specific to permit [a reviewing] court to conclude that the ALJ did 23 not arbitrarily discredit claimant's testimony. Tommasetti v. 24 Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008)(quoting Thomas v. 25 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002)). 26 Lewin v. In other words, the Absent affirmative evidence of malingering, an adverse 27 3 28 The ALJ found that the RFC allows her to perform substantially all of the exertional demand of sedentary work. [AR 19.] 6 1 credibility finding must be based on clear and convincing reasons. 2 Carmickle v. Comm r of Social Sec. Admin., 533 F.3d 1155, 1160 (9th 3 Cir. 2008). 4 testimony that he concludes is not credible and explain what evidence 5 undermines the testimony. 6 (9th Cir. 2001). The ALJ must, furthrmore, specifically identify the Holohan v. Massanari, 246 F. 3d 1195, 1208 7 Here, the ALJ specifically articulated multiple, legally 8 sufficient reasons for declining to credit plaintiff s statements 9 regarding the extent of her pain and functional limitations. 10 First, the ALJ found that, while plaintiff s 1997 car accident 11 was undoubtably serious and she has suffered from continual pain since 12 [e.g., AR 194, 233], she nonetheless was able to engage in substantial 13 gainful employment from 1999 to 2003, and has offered no medical 14 explanation for an alleged severe increase in pain. [AR 16.] 15 that a plaintiff may properly be deemed not disabled under the Act 16 when she has worked regularly for years notwithstanding alleged 17 impairments of consistent magnitude, see Bayliss v. Barnhart, 427 F.3d 18 1211, 1216 (9th Cir. 2005), the ALJ did not materially err in finding 19 that the inconsistencies here between plaintiff s allegations and 20 her work activities detract from her credibility, see Tonapetyan v. 21 Halter, 242 F.3d at 1148 (ALJ may use ordinary techniques of 22 credibility evaluation including considering inconsistent statements 23 and inconsistencies between the record and her statements). 24 Given Second, the ALJ noted that plaintiff has made inconsistent 25 statements about her employment history, which similarly detracts from 26 her credibility. [AR 17.] 27 she stopped working in 2006 because the pain was too much and her 28 job was unwilling to allow her to take a six-month leave for At the hearing, plaintiff testified that 7 1 treatment. [AR 26.] At a 2008 examination, she told internist Rocely 2 Ella-Tamayo, M.D., that she was fired from the same job. [AR 17, 195.] 3 Although plaintiff s counsel urges that plaintiff s testimony does not 4 conflict with her statement to Dr. Ella-Tamayo, and should be 5 interpreted as meaning she was fired, the ALJ s interpretation of the 6 testimony is reasonable and is based upon substantial evidence. [See, 7 e.g., AR 107.] Thus, this finding is legally sufficient. See Rollins 8 v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (citation omitted) 9 (even if plaintiff s testimony is equivocal and ALJ s interpretation 10 is not the only reasonable one, if it is reasonable and supported, it 11 is not the court s role to second-guess it.) 12 Third, the ALJ found plaintiff s allegations of debilitating pain 13 are inconsistent with and unsupported by the objective medical 14 evidence. 15 to engage in a light level of work, in contrast to plaintiff s claims 16 that she cannot. [AR 197.] 17 that plaintiff could work, which contradict plaintiff s assertion to 18 the contrary, in determining credibility. 19 521, 524 (9th Cir. 1995). As another example, plaintiff testified that 20 she throws up over the course of several hours every morning [AR 35], 21 whereas the ALJ observed that the medical record shows no evidence of 22 such a problem and reflects only a single trip to the emergency room 23 after vomiting that was due to an allergic reaction to antibiotics 24 from Mexico [AR 327-28]. The ALJ is permitted to consider such 25 apparent inconsistencies in the credibility assessment. See Rollins v. 26 Massanari, 261 F.3d at 857 (citation omitted). 27 28 For example, Dr. Ella-Tamayo opined that plaintiff is able An ALJ may consider physician opinions Moncada v. Chater, 60 F.3d While plaintiff is correct that the Commissioner may not decline to credit the degree of pain alleged due solely to a lack of objective 8 1 support for such an intense level of pain, a conflict with the medical 2 evidence is, nonetheless, a legitimate factor in determining the 3 extent of a plaintiff s pain. 4 404.1529(c)(2)). E.g., Id. (citing 20 C.F.R. § 5 Fourth, the ALJ noted that during her application interview 6 plaintiff did not appear to have any functional problems with sitting, 7 standing, walking or using her hands, which also conflicts with her 8 claims that she cannot sit for more than fifteen minutes and is 9 otherwise functionally impaired. [AR 16, 104.] In assessing a 10 plaintiff s credibility, the ALJ may consider such inconsistencies 11 between her actions and statements. 12 F.3d at 1148 (ALJ properly cited inconsistent behavior and statements 13 at the hearing and to consultative examiners in finding plaintiff not 14 to be credible). 15 See Tonapetyan v. Halter, 242 Fifth, the ALJ observed that there is no indication that 16 plaintiff receives regular pain management treatment, which he 17 inferred suggests she is not in pain as severe as is alleged. [AR 17.] 18 This is a proper consideration. Fair v. Bowen, 885 F.2d 597, 603 (9th 19 Cir. 1989) (finding that unexplained, or inadequately explained, 20 failure to seek treatment or follow a prescribed cause of treatment 21 may be sufficient to discredit an allegation of disabling pain). While 22 plaintiff is correct that benefits may not be denied when the 23 plaintiff failed to obtain treatment due to lack of funds, Orn v. 24 Astrue, 495 F.3d 625, 639 (9th Cir. 2007)(citation omitted), arguing 25 that this is the reason she failed to do so, the record contradicts 26 this contention and establishes that she did, in fact, obtain medical 27 treatment regularly from 2001 to 2009. [E.g., AR 719.] 28 Finally, the ALJ found plaintiff s testimony regarding her daily 9 1 activities was inconsistent with and belied her testimony regarding 2 debilitating pain. [AR 16]. 3 plaintiff contends she can sit for only ten to fifteen minutes at a 4 stretch, often cannot walk, cannot focus due to her medications, 5 cannot do chores, and has nausea, problems with toileting and is 6 regularly fatigued. [AR 16, 30-34.] 7 she regularly drives her children to and from school, looks over their 8 homework with them, and does light exercise. [AR 35-37.] 9 that plaintiff has thus made inconsistent statements about her daily The ALJ noted, for example, that At the same time, she testified A finding See Bray v. 10 activities is a proper basis for a crediblity finding. 11 Comm r of Soc. Sec. Admin, 554 F.3d 1219, 1227 (9th Cir. 2009) (citing 12 Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) (in 13 weighing a plaintiff s credibility, the ALJ may consider 14 inconsistencies between her testimony and her conduct and between her 15 testimony and daily activities.) 16 In any event, an error by the ALJ with respect to one or more 17 factors in a credibility determination is harmless when there remains 18 substantial evidence supporting the ALJ s conclusions with respect to 19 plaintiff s credibility. 20 1163 (9th Cir. 2008) (citations omitted). 21 finding in this case is ultimately sufficiently supported to permit 22 this court to determine that it was not arbitrary and was based 23 legally sufficient reasons, any error with respect to one aspect of 24 the evaluation would be harmless. 25 Remand is not warranted. Carmickle v. Comm r, 533 F.3d 1155, 1162, VI. 26 Because the credibility ORDERS 27 Accordingly, IT IS ORDERED that: 28 1. The decision of the Commissioner is AFFIRMED. 10 1 2. This action is DISMISSED WITH PREJUDICE. 2 3. The Clerk of the Court shall serve this Decision and Order 3 and the Judgment herein on all parties or counsel. 4 5 6 DATED: June 13, 2011 ________________________________ CARLA M. WOEHRLE United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

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