Stacie Sills v. Michael J Astrue, No. 2:2012cv04320 - Document 15 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton. The Court cannot find error in the ALJ's credibility determination. The Decision of the ALJ will be affirmed and the matter will be dismissed with prejudice. 1 [SEE ORDER FOR FURTHER DETAILS] (gr)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 STACIE SILLS, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 12-04320-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for 20 disability benefits. 21 consented that the case may be handled by the Magistrate Judge. 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the record before 24 the Commissioner. 25 ( JS ), and the Commissioner has filed the certified Administrative 26 Record ( AR ). Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the Joint Stipulation 27 Plaintiff raises the following issue: 28 1. Whether the Administrative Law Judge S ( ALJ ) credibility 1 2 determination is supported by substantial evidence. (JS at 5.) 3 4 This Memorandum Opinion will constitute the Court s findings of 5 fact and conclusions of law. After reviewing the matter, the Court 6 concludes that the decision of the Commissioner must be affirmed. 7 8 I 9 THE ALJ S CREDIBILITY DETERMINATION 10 IS SUPPORTED BY SUBSTANTIAL EVIDENCE 11 In this litigation, Plaintiff raises a single issue: the 12 correctness and adequacy of the determination by the ALJ of her 13 credibility as to subjective symptoms. (JS at 5.) In order to address 14 this issue, the Court will briefly summarize pertinent parts of the 15 record. 16 The principal part of the Decision as it pertains to evaluating 17 Plaintiff s credibility is contained at AR 21-22. There is no dispute 18 that the ALJ correctly followed the well known two-step process which 19 requires an initial determination of whether there is an underlying 20 medically 21 reasonably be expected to produce a claimant s pain or other symptoms, 22 and if that is met, whether the entire case record supports a finding 23 substantiating 24 persistence, 25 symptoms. (See AR at 21, and Fair v. Bowen, 885 F.2d 597, 603 (9th 26 Cir. 1989); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); 27 Social Security Ruling ( SSR ) 96-7p. 28 determinable Social or a physical claimant s functionally Security or mental statements limiting administrative 2 impairment about effects decisions that the of are could intensity, pain not or other prepared 1 utilizing a form or a particular format, and thus, a reviewing Court 2 must review the entire decision in order to determine whether, as to 3 particular issues, it is supported by substantial evidence. 4 In this case, the ALJ summarized Plaintiff s subjective 5 complaints as contained in various parts of the record. He thus cited 6 her October 2, 2008 Pain Questionnaire (AR 21-22, 206-208), in which 7 Plaintiff stated that her pain began to affect her activities some 8 time in 2007. 9 this date and the alleged onset date of disability, March 1, 2003. (AR As the ALJ observed, there is an inconsistency between 10 18.) 11 Plaintiff s pain was not as significant as alleged prior to 2007. (AR 12 21.) 13 The ALJ concluded that this inconsistency indicates that The ALJ also noted Plaintiff s statements in an administrative 14 document called External Activities Questionnaire (AR 21, 211-213), 15 in which Plaintiff stated that sometimes she uses a wheelchair while 16 shopping and a cane for walking, needs to nap during the day, and is 17 generally in a lot of pain. 18 pain medication at night because the medications make her drowsy. The 19 ALJ concluded that this inconsistency indicates that her pain is not 20 as significant as she alleges during the daytime. (AR 22.) Plaintiff also stated that she only takes 21 The ALJ cited testimony at the administrative hearing of April 1, 22 2010 that Plaintiff s asthma inhalers make her nervous and shaky, but 23 the ALJ noted that there is no indication that Plaintiff has attempted 24 to adjust her asthma medication to address these side effects. He 25 further noted Plaintiff s Asthma Questionnaire indicates she had never 26 been to an emergency room or hospitalized because of an asthma attack, 27 but she found it hard to breathe at night as opposed to during the day 28 which, the ALJ observed, would be the likely time she would be 3 1 working. Further, the ALJ noted the record does not contain any 2 pulmonary function tests, and he further cited Plaintiff s testimony 3 at the administrative hearing that she has not gone to an emergency 4 room for asthma, but just uses steam to alleviate symptoms of asthma. 5 The ALJ determined that this evidence indicates that Plaintiff s 6 asthma is not as significant symptomatically as Plaintiff alleges. (AR 7 22.) 8 The ALJ further cited administrative hearing testimony in which 9 Plaintiff indicated she has muscle spasms four to five times a day and 10 she has to lay down as a result, that she uses electrical stimulation 11 and has had cortisone injections and chiropractic care for pain 12 relief, and that she needs assistance with bathing and putting on her 13 shoes because of her back. 14 objective evidence to support these allegations. (AR 22.) 15 16 17 The ALJ indicated there is a lack of The ALJ further cited evidence of missed medical appointments as a reason to depreciate credibility. (AR 22, 302-340.) The ALJ concluded that while Plaintiff s medically determinable 18 impairments could reasonably be expected to cause her alleged 19 symptoms, her testimony as to the intensity, persistence and limiting 20 effects of these symptoms are not credible to the extent they are 21 inconsistent with the determined residual functional capacity ( RFC ) 22 assessment (AR 22).1 23 1 24 25 26 27 28 The RFC is assessed at ¶ 5, AR 20-21, and provides for an ability to perform sedentary work before April 26, 2010, and after that date, assesses an ability to perform sedentary work with additional limitations. (Id.) It is noted that the ALJ made these findings utilizing April 26, 2010, which was the date that she received a consultative examination by orthopedist Dr. Conaty (AR 379383). Based on the limitations in functional ability assessed by Dr. Conaty, the ALJ imposed these further restrictions in Plaintiff s RFC (continued...) 4 1 In addition to the specific discussion of credibility related 2 factors as summarized above, there is also additional discussion in 3 the Decision of factors which pertain to credibility assessment. 4 Commissioner notes some of these factors in his portion of the JS, at 5 ¶¶ 10-11. Because of the nature of this discussion, the Court 6 determines that 7 determination of credibility assessment, and the Court s review of the 8 sufficiency of that determination. 9 notation that Plaintiff admitted she stopped working in 2002 because it should also be considered in the The ALJ s These factors include the ALJ s 10 the company closed, and not because of any impairment. Further, she 11 looked for work after her alleged onset date of disability. (AR 19, 12 51-52, 73, 200.) 13 supports consideration of this type of factor in the credibility 14 assessment. 15 2001); Copeland v. Bowen, 861 F.2d 536, 542 (9th Cir. 1988). As the Commissioner notes, Ninth Circuit authority See Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 16 Further, although Plaintiff asserts that there is no evidence of 17 malingering in the record, and thus the ALJ s articulation of reasons 18 for rejecting subjective testimony must be based on the clear and 19 convincing standard (see JS at 6), nevertheless, the ALJ specifically 20 observed that Plaintiff exerted questionable effort with respect to 21 her left upper extremity s strength during the April 26, 2010 22 consultative examination ( CE ) by Dr. Conaty. (AR 20, 381.) 23 abundance of caution, however, because the ALJ did not specifically 24 find evidence of malingering, the Court will not base its review upon 25 the standard reserved for such circumstances. 26 In order to analyze the sufficiency of the evidence, the Court 27 1 28 In an (...continued) as of the date of the examination. 5 1 adheres to the standards of evaluation set down by the Ninth Circuit, 2 and has already cited some of the pertinent decisions of that Court. 3 As Plaintiff correctly points out, credibility determinations cannot 4 rely solely on a lack of objective medical evidence. 5 hand, a lack of objective medical evidence is one factor which may be 6 considered in the credibility determination process. See 20 C.F.R. §§ 7 404.1529(c)(1) & (2); 416.929(c)(1) & (2). 8 Court notes, however, that there is an analytical difference between 9 a lack of corroborating medical evidence and a contradiction between On the other See also SSR 96-7p. The 10 subjective claims and existing medical evidence. 11 Commissioner, 169 F.3d 595, 599-600 (9th Cir. 1999). 12 both aspects of that standard exist; i.e., a lack of corroborating 13 medical evidence, and a contradiction between subjective claims and 14 existing medical evidence. 15 based on an analysis of a wide variety of evidence, as required by 16 relevant statute and rules. 17 evidence which establishes sufficient or substantial evidence in the 18 record. Rather, the Court must determine whether the types of 19 evidence cited 20 generally support a credibility finding. 21 this careful evaluation, and finds that a variety of different types 22 of evidence was cited by the ALJ, and that evidence goes well beyond 23 Plaintiff s contention that the ALJ s Decision is mainly based on a 24 lack of objective medical evidence. 25 types of evidence relied upon creates a coherent and logical basis 26 upon which the credibility determination was made. 27 did not totally depreciate Plaintiff s credibility; rather, it was 28 only to the in an extent In this case, Generally, credibility determination is ALJ s that See Morgan v. There is no particular quantum of decision it substantial enough to Here, the Court has done Indeed, the variety of different was 6 are Moreover, the ALJ inconsistent with the RFC 1 determination, which provides for a very limited amount of sedentary 2 work. 3 Based on the foregoing, the Court cannot find error in the ALJ s 4 credibility determination. 5 and the matter will be dismissed with prejudice. 6 The Decision of the ALJ will be affirmed IT IS SO ORDERED. 7 8 9 DATED: March 1, 2013 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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