Olivia Frances Magana v. Michael J Astrue, No. 2:2012cv05275 - Document 20 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 OLIVIA FRANCES MAGANA, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN,1 ) Acting Commissioner of Social ) Security, ) ) Defendant. ) ___________________________________) NO. CV 12-05275-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on June 22, 2012, seeking review of the 19 denial of plaintiff s application for a period of disability and 20 disability insurance benefits ( DIB ). On July 24, 2012, the parties 21 consented, pursuant to 28 U.S.C. § 636(c), to proceed before the 22 undersigned United States Magistrate Judge. The parties filed a Joint Stipulation on April 15, 2013, in which: plaintiff seeks an order 23 24 reversing the Commissioner s decision and remanding this case for the 25 26 27 28 1 Carolyn W. Colvin became the Acting Commissioner of the Social Security Administration on February 14, 2013, and is substituted in place of former Commissioner Michael J. Astrue as the defendant in this action. (See Fed. R. Civ. P. 25(d).) 1 payment of benefits or, alternatively, for further administrative 2 proceedings; and the Commissioner requests that her decision be affirmed 3 or, alternatively, remanded for further administrative proceedings. 4 5 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 6 7 On June 4, 2009, plaintiff filed an application for a period of 8 disability and DIB. 9 claims to have been disabled since June 9, 2008, due to fibromyalgia, high blood (Administrative Record ( A.R. ) 14.) 10 diabetes, pressure and cholesterol, heart 11 problems, shortness of breath, and forgetting things. 12 64, 166.) 13 Plaintiff and vision (A.R. 20.) (A.R. 36, 57, Plaintiff has past relevant work experience as a secretary. 14 15 After the Commissioner denied plaintiff s claim initially and upon 16 reconsideration (A.R. 14, 57-61, 64-68), plaintiff requested a hearing 17 (A.R. 69). 18 counsel, appeared and testified at a hearing before Administrative Law 19 Judge Sally C. Reason (the ALJ ). 20 Lynn Tracy also testified. 21 plaintiff s claim (A.R. 14-20), and the Appeals Council subsequently 22 denied plaintiff s request for review of the ALJ s decision (A.R. 1-3). 23 That decision is now at issue in this action. On April 13, 2011, plaintiff, who was represented by (A.R. 14, 31-50.) (Id.) Vocational expert On April 21, 2011, the ALJ denied 24 25 SUMMARY OF ADMINISTRATIVE DECISION 26 27 The ALJ found that plaintiff meets the insured status requirements 28 of the Social Security Act through December 31, 2013, and has not 2 1 engaged in substantial gainful activity since June 9, 2008, the alleged 2 onset date of her disability. 3 plaintiff has the severe impairments of: ischemic heart disease status 4 post stenting in May 2007; diabetes mellitus; mild lumbar degenerative 5 disc disease; and obesity. 2 6 impairments, 7 impairment or combination of impairments that meets or medically equals 8 one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 9 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). the ALJ (A.R. 16.) (Id.) concluded that The ALJ determined that After considering plaintiff s plaintiff does not have an (A.R. 17.) 10 11 After reviewing the record, the ALJ determined that plaintiff has 12 the residual functional capacity ( RFC ) to perform the full range of 13 light work as defined in 20 C.F.R. § 404.1567(b). 14 the ALJ found that plaintiff is capable of performing her past relevant 15 work as a secretary, because that work does not require the performance 16 of work-related activities precluded by [plaintiff] s [RFC]. 17 20.) 18 under a disability, as defined in the Social Security Act, from June 9, 19 2008, through the date of [her] decision. (A.R. 17.) Further, (A.R. Accordingly, the ALJ concluded that [plaintiff] has not been (Id.) 20 21 STANDARD OF REVIEW 22 23 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 24 2 25 26 27 28 The ALJ did not find plaintiff s visual impairment to be severe. (A.R. 16.) Further, the ALJ found no medical evidence to corroborate plaintiff s claim that she was limited by fibromyalgia. (Id.) Specifically, the ALJ noted that there is no indication [plaintiff] has been either evaluated for, or diagnosed with, fibromyalgia, and [plaintiff] has not alleged or otherwise reported having fibromyalgia since mentioning it in connection with her application. (A.R. 16-17.) 3 1 decision to determine whether it is free from legal error and supported 2 by substantial evidence in the record as a whole. 3 F.3d 625, 630 (9th Cir. 2007). 4 evidence as a reasonable mind might accept as adequate to support a 5 conclusion. 6 a mere scintilla but not necessarily a preponderance. 7 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). 8 record can constitute substantial evidence, only those reasonably drawn 9 from the record will suffice. 10 Orn v. Astrue, 495 Substantial evidence is such relevant Id. (citation omitted). The evidence must be more than Connett v. While inferences from the Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006)(citation omitted). 11 12 Although this Court cannot substitute its discretion for that of 13 the Commissioner, the Court nonetheless must review the record as a 14 whole, weighing both the evidence that supports and the evidence that 15 detracts from the [Commissioner s] conclusion. 16 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 17 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 18 responsible for determining credibility, resolving conflicts in medical 19 testimony, and for resolving ambiguities. 20 1035, 1039 (9th Cir. 1995). Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 21 22 The Court will uphold the Commissioner s decision when the evidence 23 is susceptible to more than one rational interpretation. 24 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 25 review only the reasons stated by the ALJ in his decision and may not 26 affirm the ALJ on a ground upon which he did not rely. 27 at 630; see also Connett, 340 F.3d at 874. 28 the Commissioner s decision if it is based on harmless error, which 4 Burch v. However, the Court may Orn, 495 F.3d The Court will not reverse 1 exists only when it is clear from the record that an ALJ s error was 2 inconsequential to the ultimate nondisability determination. Robbins 3 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 4 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 5 at 679. 6 7 DISCUSSION 8 9 Plaintiff claims the ALJ erred by not considering plaintiff s 10 subjective symptom testimony properly. 11 (Joint Stipulation ( Joint Stip. ) at 4-12, 19-20.) 12 13 Once a disability claimant produces objective medical evidence of 14 an underlying impairment that is reasonably likely to be the source of 15 claimant s subjective symptom(s), all subjective testimony as to the 16 severity of the symptoms must be considered. 17 F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 346 18 (9th Cir. 1991); see also 20 C.F.R. § 404.1529(a) (explaining how pain 19 and other symptoms are evaluated). 20 malingering based on affirmative evidence thereof, he or she may only 21 find an applicant not credible by making specific findings as to 22 credibility 23 each. 24 weighing 25 reputation for 26 claimant s testimony 27 conduct; (3) the claimant s daily activities; (4) the claimant s work 28 record; and (5) testimony from physicians and third parties concerning and stating [U]nless an ALJ makes a finding of clear and Robbins, 466 F.3d at 883. a claimant s or (2) between convincing reasons for The factors to be considered in credibility truthfulness; Moisa v. Barnhart, 367 include: inconsistencies the 5 (1) claimant s the claimant s either in the testimony and her 1 the nature, severity, and effect of the symptoms of which the claimant 2 complains. 3 2002); see also 20 C.F.R. § 404.1529(c). See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 4 5 An ALJ may not rely on a claimant s daily activities to support an 6 adverse credibility determination when those activities 7 (1) contradict claimant s other testimony; or (2) meet the threshold for 8 transferable work skills. 9 Circuit has explained, daily activities may be grounds for an adverse 10 credibility finding if a claimant is able to spend a substantial part 11 of his day engaged in pursuits involving the performance of physical 12 functions that are transferrable to a work setting. 13 omitted). 14 for benefits . . . and many home activities are not easily transferable 15 to what may be the more grueling environment of the workplace, where it 16 might be impossible to periodically rest or take medication. 17 Bowen, 885 F.2d 597, 602 (9th Cir. 1989). See Orn, 495 F.3d at 639. do not: As the Ninth Id. (citation A claimant need not be utterly incapacitated to be eligible Fair v. 18 19 As noted supra, the ALJ found that plaintiff has the severe 20 impairments of: ischemic heart diseases status post stenting in May 21 2007; diabetes mellitus; mild lumbar degenerative disc disease; and 22 obesity. 23 determinable impairments could reasonably be expected to cause the 24 alleged symptoms. 25 malingering 26 discrediting 27 convincing. (A.R. 16.) by The ALJ also found that [plaintiff] s medically (A.R. 17.) plaintiff. plaintiff s Further, the ALJ cited no evidence of Accordingly, subjective 28 6 the complaints ALJ s must be reason for clear and 1 In her decision, the ALJ found that [plaintiff] s statements 2 concerning the intensity, persistence and limiting effects of [her] 3 symptoms are not credible to the extent they are inconsistent with [the 4 ALJ s RFC assessment for plaintiff]. (A.R. 17.) Specifically, the ALJ 5 found plaintiff to be not credible, because: 6 does 7 limitations; 8 (3) plaintiff s treatment has been routine and/or conservative in 9 nature; and (4) plaintiff s daily activities are not limited to the 10 extent one would expect, given [her] complaints of disabling symptoms 11 and limitations. not support (2) plaintiff s plaintiff (1) the medical evidence allegations made various of totally inconsistent disabling statements; (A.R. 17-19.) 12 13 The ALJ noted that the medical evidence of record does not show 14 laboratory or clinical findings which 15 [plaintiff] has been unable to work since June 2008. 16 The ALJ cited medical evidence that [a]fter cardiac stenting in May 17 2007, [plaintiff] . . . had 0% residual stenosis, and a post-operative 18 stress ECHO performed in October 2007 was described as normal (showing 19 no new wall motion abnormality with exercise, and a left ventricular 20 ejection fraction of 60%). 21 that, although [plaintiff] reported a number of subjective complaints, 22 including back pain with radiation to the left leg, and pain and 23 numbness in the left leg, to consultative internist John Sedgh, M.D., 24 [plaintiff] exhibited few objective signs of impairment on clinical 25 examination during a September 2009 examination. 26 Sedgh opined that plaintiff was capable of performing medium work. 27 (Id.) 28 contain any (A.R. 18.) would support finding that (A.R. 17-18.) In addition, the ALJ noted (Id.) In fact, Dr. Further, as the ALJ properly emphasized, the record does not other opinion from a 7 treating or examining physician 1 indicating that [plaintiff] is disabled or even has limitations greater 2 than those determined [by the ALJ]. 3 F.3d 521, 523 (9th Cir. 1995)(noting that an ALJ may consider a 4 physician s 5 plaintiff s assertion to the contrary, in determining credibility). 6 Thus, although a lack of medical evidence cannot form the sole basis for 7 discounting plaintiff s pain testimony, it is a factor that the ALJ can, 8 and properly did, consider in her credibility analysis. Burch, 400 F.3d 9 at 681. opinion that plaintiff (A.R. 20); Moncada v. Chater, 60 could work, which contradicts 10 11 The ALJ also discredited plaintiff, because she made various 12 inconsistent statements. For example, the ALJ found plaintiff to be not 13 credible, because [plaintiff] testified that she stopped working in 14 June 2008 because she underwent stenting, [but] the medical records 15 . . . show the stenting occurred in May 2007. 16 the ALJ s characterization, plaintiff s actual testimony was that she 17 stopped working, because [she] had a stent, and [she] was having 18 difficulties. 19 function, [she] couldn t see right. 20 acknowledged at the administrative hearing that the stenting occurred 21 one year prior to her disability onset date. 22 attributing her disability onset to her stenting procedure, plaintiff 23 appears to attribute it to complications arising from the stenting and 24 her other impairments. (A.R. 18.) Contrary to [She] was having shortness of breath and [she] couldn t (A.R. 36.) Indeed, plaintiff (Id.) Rather than 25 26 Critically, however, [c]ontrary to her testimony, the record 27 indicates [plaintiff] actually stopped working in June 2008 not because 28 of the allegedly disabling impairments, but rather due to a business8 1 related layoff. 2 testified that she stopped working as a result of her impairments, she 3 also testified, and admitted elsewhere in the record, that she stopped 4 working in June 2008, because she was laid off. 5 a claimant s work history undercuts her assertions, the ALJ may rely on 6 that contradiction to discredit the claimant. 7 268 8 considered the fact that claimant stopped working because he was laid 9 off, rather than because he was injured ). 10 F.3d 824, (A.R. 18.) 828 (9th As the ALJ properly noted, while plaintiff Cir. 2001)(holding (A.R. 42, 166.) When See Bruton v. Massanari, that the ALJ properly Thus, this contradiction constitutes a clear and convincing reason for discrediting plaintiff. 11 12 The ALJ also discredited plaintiff, because plaintiff indicated 13 that after being laid off, she collected unemployment benefits and 14 looked for work for about a year. 15 plaintiff indicated that she was primarily looking for work in medical 16 offices, and that she was specifically trying to find a job similar to 17 the one she had been performing. 18 raises additional questions as to whether [plaintiff] s continuing 19 unemployment is actually due to her medical impairments, as opposed to 20 non-medical factors. 21 plaintiff testified at the administrative hearing that she was receiving 22 unemployment benefits while looking for secretarial jobs and maybe 23 could have performed a secretarial job similar to the one she had 24 previously if she did not have to get up or lift much in the way of 25 weight. (A.R. 43.)3 (A.R. 18.) (Id.) (A.R. 18-19.) The ALJ noted that The ALJ asserted that [t]his As the ALJ properly noted, Accordingly, because plaintiff held herself out as 26 27 28 3 Plaintiff testified, however, that as of the fall of 2009, she did not believe that she could perform such a job, because her condition had worsened. (A.R. 43.) 9 1 able to work for at least a year afer she was laid off in June 2008, 2 plaintiff s assertion that she became disabled in June 2008, is not 3 credible. 4 1161-62 (9th Cir. 2009)(noting that receipt of unemployment benefits can 5 be a basis to discredit a claimant when he holds himself out as able to 6 work). 7 regarding the date on which she became disabled, based on her receipt of 8 unemployment benefits. See Carmickle v. Comm r Soc. Sec. Admin., 533 F.3d 1155, Accordingly, the ALJ properly discredited plaintiff s testimony 9 10 The ALJ also found plaintiff to be not credible, because 11 plaintiff s description of her limitations throughout the record have 12 been inconsistent and unpersuasive. (A.R. 19.) For, example, the ALJ 13 noted that while alleging an inability to sit for more than 15 minutes 14 at a time, [plaintiff] simultaneously acknowledged that she is able to 15 drive, which obviously involves sitting, for 45 minutes at a time. 16 (Id.) Plaintiff contends that her two statements are not contradictory, 17 because the statements were made two years apart, and her condition had 18 deteriorated in the interim. 19 the hearing date, plaintiff, in a form completed in June or July 2009,4 20 which was cited by the ALJ, stated that she could not sit for more than 21 15 minutes at a time. 22 that she could drive for 45 minutes clearly contradicts her June or July 23 2009 statement that she could sit for only 15 minutes at a time. 24 175.) 25 reason for discounting plaintiff s credibility. (Joint Stip. at 10.) (A.R. 169.) However, prior to Thus, her July 23, 2009 statement (A.R. Thus, this contradiction provided another clear and convincing 26 27 28 4 Although the form is undated, plaintiff noted that the date of her last outpatient visit was June 2009, and her next appointment was scheduled for July 2009. 10 1 The ALJ also reasonably found plaintiff s testimony that she 2 cannot lift anything to be inconsistent with her acknowledg[ment] 3 that she carries a purse, and . . . is able to lift/carry a grocery 4 bag(s) as well as various household items. 5 administrative 6 anything, because she has numbness and tingling in [her] hands. (A.R. 7 45.) However, when asked if she could carry a purse, plaintiff replied, 8 Oh, yeah, I put it over my neck, yes. 9 weight [she] could handle, plaintiff replied, [l]ike five pounds. hearing, plaintiff testified (A.R. 19.) that (Id.) she At the cannot lift When asked how much 10 (Id.) Accordingly, plaintiff s testimony that she can lift/carry 11 various household items and grocery bags is somewhat inconsistent with 12 her testimony that she cannot lift anything. 13 14 Next, the ALJ discredited plaintiff s pain allegations, because 15 plaintiff s treatment for her allegedly disabling impairments has been 16 essentially 17 Specifically, the ALJ noted that plaintiff has made only relatively 18 infrequent trips to the doctor notwithstanding her allegedly disabling 19 symptoms. 20 infrequent 21 credibility. 22 2007)(noting that evidence of conservative treatment is sufficient to 23 discount a claimant s testimony regarding severity of impairment); 24 Moncada, 25 discredited by evidence of infrequent medical treatment). 26 asserts that [she] took the measures expected for an individual in her 27 condition and still endured symptoms of neuropathy until at least 28 February 2011 ; [she] should not be expected to undergo surgery or any routine (Id.) 60 and/or conservative in nature. (A.R. 19.) An ALJ may consider evidence of conservative and/or treatment as a basis for discounting a claimant s See, e.g., Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. F.3d at 524 (allegations 11 of disabling pain can be Plaintiff 1 other 2 condition. 3 unnecessary procedures, the medical records support the ALJ s reasoning. 4 For example, although plaintiff complained that her neuropathy worsened 5 in March 2010 (Joint Stip. at 6), plaintiff made very few visits to her 6 doctor for the treatment of her neuropathy. 7 plaintiff s medical records after March 2010, reflect treatment for 8 other 9 Plaintiff s infrequent/conservative treatment, thus, weighs against her 10 invasive procedure when the (Joint Stip. at 10.) conditions and/or note that procedures will not help her While plaintiff need not undergo Indeed, the majority of plaintiff s pain was 0/10. 5 claims of disabling symptoms. 11 12 Lastly, the ALJ discredited plaintiff, because her daily 13 activities . . . are not limited to the extent one would expect, given 14 [her] complaints of disabling symptoms and limitations. (A.R. 19.) In 15 his decision, the ALJ noted that: 16 17 5 18 19 20 21 22 23 24 25 26 27 28 See, e.g., A.R. 401 - 3/26/10 ( [plaintiff] here for [followup] lab results ; plaintiff complains of mild intermittent chest pain x 2 months, asymptomatic at this time and mild shortness of breath; No pain 0/10 ); A.R. 404 - 4/9/10 (plaintiff here for follow-up; [plaintiff] states feeling well, no chest pain or [shortness of breath], no polydipsia or polyuria, no peripheral edema ; No pain 0/10 ); A.R. 407 - 5/10/10 (plaintiff s chief complaint is gastrointestinal bloating/flatus . . . with heartburn, loose stool, [and] abd[ominal] discomfort ); A.R. 411 - 6/24/13 (plaintiff complains of [shortness of breath on exertion x 1 1/2 mos. when standing up, pain on her neck & squeezing pain on l[ef]t side of chest radiating to the back, l[ef]t arm & numbness on and off ); A.R. 414 - 7/8/13 (plaintiff complains of burning stomach for 1 y[ear] ; pepcid does not help much ; no vomiting ; denie[s] [chest pain]/[shortness of breath]/palpitation/dizzy ; non[-]compliant to diet and exercise ); A.R. 418 - 7/27/10 ( [plaintiff] seen . . . for treatment of H Pylori ); A.R. 421-22 - 11/04/10 (plaintiff complains of dizziness, nausea, [and] vomiting off and on for 3 days ; No pain 0/10 ); A.R. 426 - 12/06/10 ( [plainiff s] stomach is much better now, occasionally gassy, no nausea/vomiting/blood in stool ; left shoulder pain for 6 months off and on ; left hip pain for 3 weeks ; can walk, no weakness, no numbness ). 12 1 In July 2009, [plaintiff] reported she regularly drives, goes 2 shopping, and does house work, including mopping, vacuuming 3 cooking, cleaning, doing the dishes, and washing clothes 4 . 5 activities 6 however, two factors weigh against considering the testimony 7 in this regard to be strong evidence in favor of finding 8 [plaintiff] to be disabled. 9 activities cannot be objectively verified with any reasonable . . . At the which hearing, are [plaintiff] considerably more described limited . daily . . ; First, allegedly limited daily 10 degree of certainty. 11 activities are currently as limited, it is difficult to 12 attribute that degree of limitation to [plaintiff] s medical 13 condition, 14 relatively weak medical evidence and other factors discussed 15 in this decision. 16 daily activities are considered to be outweighed by other 17 factors discussed in this decision. as Second, even if [plaintiff] s daily opposed to other reasons, in view of the Overall [plaintiff] s allegedly limited 18 19 (Id.; internal citations omitted.) 20 21 As an initial matter, the ALJ s description of plaintiff s daily 22 activities is incomplete and misleading. 23 to include plaintiff s statement that after performing 30-45 minutes of 24 daily activities, she must take a break for 1 hr - 1 1/2 hrs and then 25 start again. 26 described more limited daily activities at the administrative hearing, 27 the factors 28 testimony are not entirely persuasive. (A.R. 174.) upon Significantly, the ALJ failed Further, while acknowledging that plaintiff which the ALJ relied 13 in discounting plaintiff s The ALJ s first factor does not 1 constitute 2 credibility, because it is germane to most claimants. 3 absent, for example, testimony from a percipient witness, it would be 4 difficult 5 activities. 6 to assess a claimant s testimony as to matters that are not otherwise 7 easily verifiable. 8 *7 (C.D. Cal. Jan. 29, 2013). 9 it appears that the ALJ is merely reasserting his initial reason for 10 discrediting plaintiff - to wit, that the medical evidence does not 11 support plaintiff s claims of disability -- but, as noted supra, this is 12 not, 13 plaintiff s credibility. by a clear for most and convincing claimants to reason to objectively discount plaintiff s Put differently, verify their daily Moreover, the entire purpose of a credibility analysis is itself, Gounder v. Astrue, 2013 U.S. Dist. LEXIS 12710, at a clear With respect to the ALJ s second factor, and convincing reason for discounting 14 15 The Court finds, however, that the ALJ s error in relying on the 16 above-noted invalid reason(s) was harmless, because the ALJ s other 17 reasons are supported by substantial evidence. 18 at 1162-63 (holding that ALJ s reliance on two invalid reasons in 19 support 20 remaining reasons were adequately supported by substantial evidence). 21 The Court therefore finds and concludes that reversal is not warranted 22 based on the ALJ s alleged failure to consider plaintiff s subjective 23 symptom testimony properly. 24 /// 25 /// 26 /// 27 /// 28 /// of adverse credibility See Carmickle, 533 F.3d determination 14 was harmless where 1 CONCLUSION 2 3 For the foregoing reasons, the Court finds that the Commissioner s 4 decision is supported by substantial evidence and is free from material 5 legal error. Neither reversal of the Commissioner s decision nor remand 6 is warranted. 7 8 Accordingly, IT IS ORDERED that Judgment shall be entered affirming 9 the decision of the Commissioner of the Social Security Administration. 10 IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of 11 this Memorandum Opinion and Order and the Judgment on counsel for 12 plaintiff and for the Commissioner. 13 14 DATED: September 3, 2013 15 16 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 15
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