Lavonda Jeter v. Michael J Astrue, No. 2:2012cv09822 - Document 16 (C.D. Cal. 2013)

Court Description: DECISION AND ORDER by Magistrate Judge Carla Woehrle Accordingly, IT IS ORDERED that: 1. The decision of the Commissioner is AFFIRMED. 2. This action is DISMISSED WITH PREJUDICE. 3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel. (sbu)

Download PDF

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 8 9 10 11 LAVONDA JETER, 12 ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff, 13 v. 14 CAROLYN W. COLVIN, Commissioner of Social Security, 15 16 Defendant. No. CV 12-9822-CW DECISION AND ORDER 17 18 19 PROCEEDINGS On November 28, 2012, Lavonda Jeter ( Plaintiff ) filed a 20 Complaint 21 applications for supplemental security income and disability insurance 22 benefits. 23 United States Magistrate Judge Carla Woehrle. 24 Defendant filed an Answer to Complaint. 25 parties filed their Joint Stipulation. seeking review of the Commissioner's denial of her Thereafter, the parties filed a Consent to Proceed Before On July 9, 2013, On September 4, 2013, the 26 For the reasons stated below, the Court finds that judgment 27 should be granted in favor of Defendant, affirming the Commissioner s 28 decision, and dismissing this action with prejudice. 1 BACKGROUND 2 On June 29, 2010, Plaintiff filed applications for supplementa1 3 security income and disability insurance benefits. 4 Record [ AR ] at 138-42.) 5 22, 2009, she was unable to work due to hearing loss, diabetic 6 neuropathy, 7 bladder infection, swollen feet, and depression. 8 Plaintiff s applications were denied initially on November 10, 2010. 9 (AR at 66-75.) 10 migraine (Administrative Plaintiff alleged that, beginning on July headaches, high blood pressure, (AR at 66, 138.) On or about December 6, 2010, Plaintiff requested a hearing 11 before an Administrative Law Judge ( ALJ ). 12 conducted a hearing on July 19, 2011. 13 appeared at the hearing with her counsel and testified. 14 38.) 15 gastritis, (AR at 76.) (AR at 11-41.) A vocational expert also testified. The ALJ Plaintiff (AR at 14- (AR at 38-40.) On July 27, 2011, the ALJ issued his decision denying benefits. 16 (AR at 44-57.) 17 from the following severe combination of impairments: obesity, 18 diabetes mellitus, dorsalis pedis of the right foot, hypertension, and 19 adjustment disorder with depressed mood. 20 concluded that Plaintiff has the residual functional capacity to 21 perform light work, with the following limitations: [Plaintiff] can 22 occasionally climb ramps and stairs, balance, stoop, kneel, crouch and 23 crawl. 24 heights and hazards; and extreme temperatures. 25 limited to simple to moderately complex work. 26 In his decision, the ALJ found that Plaintiff suffers (AR at 49.) The ALJ She should avoid climbing ladders, ropes and scaffolds; In addition, she is (AR at 51.) The ALJ determined that Plaintiff could not perform her past 27 relevant work as a stock clerk. 28 found that, considering Plaintiff s age, education, work experience, (AR at 55.) 2 Nevertheless, the ALJ 1 and residual functional capacity, there were significant numbers of 2 jobs that she could perform. 3 Plaintiff could perform the jobs of cashier, garment bagger, and floor 4 worker. (AR at 56.) Ultimately, the ALJ concluded that Plaintiff was 5 not disabled pursuant to the Social Security Act. 6 Specifically, the ALJ found that (AR at 57.) On August 5, 2011, Plaintiff requested review of the ALJ s 7 decision. 8 request for review. (AR at 131-34.) The Appeals Council denied Plaintiff s (AR at 1-6.) 9 10 11 PLAINTIFF'S CONTENTIONS The parties Joint Stipulation sets out the following disputed 12 issues: 13 1. 14 15 impairment was non-severe; 2. 16 17 Whether the ALJ s RFC finding was in accordance with agency rules and regulations; 3. 18 19 Whether the ALJ erred by finding that Plaintiff s mental Whether the ALJ properly considered the opinions of Derrick Butler, M.D. and Lawrence Miller, M.D.; and 4. Whether the ALJ properly evaluated Plaintiff s subjective 20 complaints and the lay witness statements of Plaintiff s 21 daughter. 22 23 STANDARD OF REVIEW 24 Under 42 U.S.C. § 405(g), this Court reviews the ALJ's decision 25 to determine whether the ALJ's findings are supported by substantial 26 evidence and whether the proper legal standards were applied. DeLorme 27 v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). 28 means more than a mere scintilla but less than a preponderance. 3 Substantial evidence 1 Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 2 842 (1971); Desrosiers v. Secretary of Health & Human Servs., 846 F.2d 3 573, 575-76 (9th Cir. 1988). 4 evidence as a reasonable mind might accept as adequate to support a 5 conclusion. In other words, it is such relevant Richardson, 402 U.S. at 401. 6 In determining whether substantial evidence supports the ALJ s 7 findings, the Court must review the record as a whole and consider 8 both the evidence that supports and the evidence that detracts from 9 the Commissioner s conclusion[s]. Reddick v. Chater, 157 F.3d 715, 10 720 (9th Cir. 1998). 11 affirming or reversing, the Court may not substitute its judgment 12 for that of the ALJ, and the ALJ's decision must be upheld. 13 720-21; see also Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 14 1984). If the evidence can reasonably support either Id. at 15 16 17 18 DISCUSSION A. The Sequential Evaluation To be eligible for disability benefits a claimant must 19 demonstrate a medically determinable impairment which prevents the 20 claimant from engaging in substantial gainful activity and which is 21 expected to result in death or to last for a continuous period of at 22 least twelve months. 23 1999); Reddick, 157 F.3d at 721; 42 U.S.C. § 423(d)(1)(A). 24 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. Disability claims are evaluated using a five-step test. 25 C.F.R. §§ 404.1520, 416.920. 26 claimant is engaging in substantial gainful activity. 27 404.1520(a)(4)(i), 416.920(a)(4)(i). 28 not disabled. See 20 At step one, the ALJ determines if the 20 C.F.R. §§ If he is, the claimant is found If he is not, the ALJ proceeds to step two. 4 1 At step two, the ALJ determines whether the claimant has a 2 severe impairment or combination of impairments. 3 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 4 it significantly limits the claimant s ability to perform basic work 5 activities and is expected to persist for a period of twelve months or 6 longer. 7 L. Ed. 2d 119 (1987). 8 impairment or combination of impairments, disability benefits are 9 denied. 20 C.F.R. §§ An impairment is severe if See Bowen v. Yuckert, 482 U.S. 137, 141, 107 S. Ct. 2287, 96 If the claimant does not have a severe 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 10 impairment or combination of impairments is severe, the ALJ proceeds 11 to step three. 12 At step three, the ALJ determines whether the claimant s 13 impairment or combination of impairments meets or equals an impairment 14 listed in 20 C.F.R., Part 404, Subpart P, Appendix 1. 15 404.1520(a)(4)(iii), 416.920(a)(4)(iii). 16 automatically determined disabled. 17 416.920(d). 18 20 C.F.R. §§ If so, the claimant is See 20 C.F.R. §§ 404.1520(d), If not, the ALJ proceeds to step four. At step four, the ALJ must assess the claimant s residual 19 functional capacity ( RFC ). 20 despite [his or her] limitations and represents an assessment based 21 on 22 416.945(a)(1). The ALJ then must determine whether the claimant s RFC 23 is sufficient for the claimant to perform past relevant work. 24 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). 25 capable 26 disabled. If the claimant is no longer capable of past relevant work, 27 the ALJ proceeds to step five. 28 416.920(f). all the of relevant performing The RFC is the most [one] can still do evidence. past 20 relevant C.F.R. work, §§ the 404.1545(a)(1), 20 If the claimant is claimant is not See 20 C.F.R. §§ 404.1520(f), 5 1 At the fifth and final step, the ALJ determines whether, 2 considering claimant s RFC, age, education, and work experience, the 3 claimant 4 significant 5 §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If he is, the claimant is not 6 disabled. If he is not, the claimant is disabled and entitled to 7 benefits. Id. is able to numbers perform in other the work national that is available economy. 20 in C.F.R. 8 Claimants have the burden of proof at steps one through four, 9 subject to the presumption that Social Security hearings are non- 10 adversarial and to the Commissioner s affirmative duty to assist 11 claimants in fully developing the record even if they are represented 12 by counsel. 13 F.3d 1273, 1288 (9th Cir. 1996). 14 case of disability is made, and the burden shifts to the Commissioner 15 at step five. 16 721; 20 C.F.R. §§ 404.1520, 416.920. 17 B. 18 Tackett, 180 F.3d at 1098 and n.3; Smolen v. Chater, 80 If this burden is met, a prima facie Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at Mental Impairment Plaintiff contends that the ALJ erred at step two of the 19 sequential evaluation by determining that her mental impairment was 20 non-severe. 21 (Joint Stip. at 4-5.) Plaintiff s claim is without merit. [The Ninth] Circuit has 22 consistently 23 impairment is not severe at step two is harmless if the ALJ considers 24 the resulting limitations caused by the impairment later in the 25 sequential evaluation process. 26 *4 (W.D. Wash. Oct. 15, 2013); see also Lewis v. Astrue, 498 F.3d 909, 27 911 (9th Cir. 2007); Burch v. Barnhart, 400 F.3d 676, 683-84 (9th Cir. 28 2005). held that an ALJ s error in finding a claimant s Cheth v. Colvin, 2013 WL 5652344, at In this case, even though the ALJ found that Plaintiff s 6 1 depression on its own was non-severe (AR at 49-50), the ALJ proceeded 2 to the next step in the sequential evaluation and considered this 3 impairment in the RFC finding (see AR at 53). 4 evaluating Plaintiff s RFC at step four, the ALJ properly took into 5 account Plaintiff s mental impairment by limiting Plaintiff to simple 6 to moderately complex work. 7 adequately addresses Plaintiff s depression.1 8 that the ALJ may have committed at step two pertaining to Plaintiff s 9 depression was harmless. 10 C. (See AR at 51, 53.) This limitation Accordingly, any error See Lewis, 498 F.3d at 911; Burch, 400 F.3d at 682. 11 Specifically, when The ALJ s RFC Assessment 12 The ALJ determined that Plaintiff has the residual functional 13 capacity to perform light work as defined in 20 C.F.R. 404.1567(b) 14 15 1 16 17 18 19 20 21 22 23 24 25 26 27 28 To the extent Plaintiff is arguing that the ALJ s RFC assessment fails to adequately address her mental impairment, the Court rejects the argument. In the Joint Stipulation, Plaintiff points out that the consultative examiner, Dr. Fahmy Ibrahim, assessed her with mild to moderate mental limitations, including a moderate limitation in the ability to focus and concentrate, and that the ALJ failed to include these limitations in the RFC. (Joint Stip at 5; AR at 364.) The ALJ, however, gave sufficient reasons for rejecting Dr. Ibrahim s opinion (see AR at 53), and Plaintiff does not argue otherwise. Moreover, the Court notes that two of the jobs identified by the VE, garment bagger and floor worker, have SVPs of 1 and reasoning levels of 1. A job with a SVP of 1 and reasoning level of 1 has been found to be consistent with a moderate limitation in concentration, persistence, and pace. See, e.g., Sabin v. Astrue, 337 Fed. Appx. 617, 621 (9th Cir. 2009)(finding ALJ properly assessed medical evidence in determining that despite moderate difficulties as to concentration, persistence, or pace, claimant could perform simple and repetitive tasks on a consistent basis); Brown v. Astrue, 2012 WL 761681, at *10 (E.D. Cal. March 6, 2012)(noting that a job with an SVP of 2 and a reasoning level of 2 fully encompasses any and all restrictions imposed by Plaintiff s moderate difficulties with concentration, persistence, and pace. ). Accordingly, even if the ALJ erred in rejecting Dr. Ibrahim s opinion, any error was harmless. 7 1 and 2 Plaintiff contends that the ALJ s RFC assessment is in error because 3 the ALJ should not have expressed her RFC in terms of a category of 4 work. 5 function analysis of her RFC as dictated by SSR 96-8p. (Joint Stip. 6 at 11-12.) 416.967(b) with some additional limitations. (AR at 51.) Rather, the ALJ was required to provide a function by 7 Social Security Ruling 96-8p provides: 8 At step 4 of the sequential evaluation process, the RFC must not 9 be expressed initially in terms of the exertional categories of 10 sedentary, light, medium, heavy, and very heavy work 11 because the first consideration at this step is whether the 12 individual can do past relevant work as he or she actually 13 performed it. 14 RFC may be expressed in terms of an exertional category, such as 15 light, if it becomes necessary to assess whether an individual is 16 able to do his or her past relevant work as it is generally 17 performed in the national economy. 18 function-by-function assessment of the individual s physical and 19 mental capacities, it may not be possible to determine whether 20 the individual is able to do past relevant work as it is 21 generally performed in the national economy because particular 22 occupations 23 nonexertional demands necessary to do the full range of work at 24 a given exertional level. 25 At step 5 of the sequential evaluation process, RFC must be 26 expressed in terms of, or related to, the exertional categories 27 when the adjudicator determines whether there is other work the may not require 28 8 However, without the initial all of the exertional and 1 individual can do. 2 full 3 sedentary, the individual must be able to perform substantially 4 all of the exertional and nonexertional functions required in 5 work at that level. 6 individual s capacity to perform each of these functions in order 7 to decide which exertional level is appropriate and whether the 8 individual 9 contemplated by the exertional level. 10 SSR 96-8p, 1996 WL 374184, at *3 (July 2, 1996). range of is However, in order for an individual to do a work at a given exertional level, such as Therefore, it is necessary to assess the capable of doing the full range of work 11 Here, the ALJ failed to comply with the requirements of SSR 96-8p 12 and make an explicit function-by-function assessment at step four of 13 the sequential evaluation. 14 because the ALJ determined at step four that Plaintiff could not 15 perform her past relevant work as a stock clerk (AR at 55), and 16 Plaintiff does not dispute this finding. See Membrila v. Astrue, 2013 17 WL 3064172, at *3 (D. Ariz. June 18, 2013); Perez v. Astrue, 2011 WL 18 5909877, at *8 (D. Ariz. Nov. 28, 2011). Nonetheless, any error was harmless 19 At step five, the ALJ properly expressed Plaintiff s RFC in terms 20 of the exertional categories used to assess whether an individual can 21 perform 22 Specifically, the ALJ found that Plaintiff could perform light work 23 as work defined in as 20 generally C.F.R. performed 404.1567(b) in and the national 416.967(b). 2 economy. In so 24 2 25 26 27 28 Light work is defined as follows: Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a (continued...) 9 1 determining, the ALJ implicitly found that Plaintiff was able to 2 perform 3 functions required in work at that level. SSR 96-8p, 1996 WL 374184, 4 at *3. 5 the full range of light work is supported by the opinions of the 6 consultative examiner and the State Agency medical consultant. 7 the consultative examiner and the State Agency physician opined that 8 Plaintiff can lift and carry 50 pounds occasionally and 25 pounds 9 frequently, and that she can stand, walk, and sit up to 6 hours in an 10 workday. (AR at 359, 457.) The State Agency physician further opined 11 that Plaintiff is unlimited in her ability to push and pull. 12 457.) substantially all of the exertional and nonexertional This assessment that Plaintiff is physically able to perform Both (AR at 13 For the foregoing reasons, the Court rejects Plaintiff s claim. 14 See Buckner-Larkin v. Astrue, 450 Fed. Appx. 626, 627 (9th Cir. 15 2011)(rejecting Plaintiff s argument that her RFC was incorrectly 16 determined because the ALJ did not set forth a function-by-function 17 assessment).3 18 D. 19 20 Treating Physicians Next, Plaintiff contends that the ALJ improperly rejected the opinions of her treating physicians, Derrick Butler, M.D., 21 2 22 23 24 25 (...continued) full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time. 20 C.F.R. §§ 404.1567(b), 416.967(b). 3 26 27 28 In the Joint Stipulation, Plaintiff argues that the ALJ failed to consider all of the relevant medical evidence. (Joint Stip. at 17.) But this argument goes to whether the ALJ properly weighed the medical evidence, not to whether the ALJ s RFC assessment complied with the requirements of the Social Security Regulations. 10 and 1 Lawrence Miller, M.D. (Joint Stip. at 17-20.) 2 In general, a treating physician s opinion is entitled to special 3 consideration because a treating physician is employed to cure and has 4 a 5 individual. 6 1989). 7 condition is not necessarily conclusive as to either a medical 8 condition or the ultimate issue of disability, it must be given 9 substantial weight. greater opportunity to know and observe the patient as an McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. While a treating doctor s opinion regarding a claimant s Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 10 1988); see also Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) 11 (stating that opinions of treating physicians are entitled to great 12 deference). 13 medical 14 convincing reasons supported by substantial evidence in the record. 15 Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001)(quoting 16 Reddick, 157 F.3d at 725). 17 contrary to that of the treating physician, an ALJ may rely on the 18 contrary opinion only if there are specific and legitimate reasons 19 supported by substantial evidence in the record. Holohan, 246 F.3d at 20 1202 (quoting Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). 21 The ALJ can meet this burden by setting out a detailed and thorough 22 summary of the facts and conflicting clinical evidence, stating her 23 interpretation thereof, and making findings. 24 533 F.3d 1035, 1041 (9th Cir. 2008)(quoting Magallanes, 881 F.2d at 25 751). Accordingly, an ALJ may reject the uncontradicted opinion of a treating physician only for clear and Even when there is a medical opinion Tommasetti v. Astrue, 26 In this case, Dr. Miller reported on July 31, 2009 that Plaintiff 27 is unable to work and should be considered temporarily totally 28 11 1 disabled. 2 2009, January 22, 2010, May 14, 2010 and June 3, 2010 that Plaintiff 3 is unable to work. 4 out a physical RFC questionnaire on March 23, 2011, in which he opined 5 that Plaintiff was extremely limited in her functioning. 6 786-89.) (AR at 269.) Similarly, Dr. Butler opined on July 29, (AR at 306, 478-79, 481.) Dr. Butler also filled (See AR at 7 Dr. Miller s and Dr. Butler s opinions were contrary to those of 8 the consultative internist and the State Agency medical consultant. 9 (See AR at 359, 457.) 10 Thus, the ALJ needed to give only specific and legitimate reasons for rejecting them. 11 The ALJ adequately met this burden here. First, the ALJ did not 12 err in giving little weight to Dr. Miller s and Dr. Butler s opinions 13 that Plaintiff is unable to work because such a conclusion is reserved 14 to the Commissioner. 15 Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). Moreover, the ALJ was 16 not required to further develop the record. McLeod v. Astrue, 640 17 F.3d 18 physician s opinion on ability to perform any rumunerative work does 19 not by itself trigger a duty to contact the physician for more 20 explanation. ). 21 881, 884-85 See 20 C.F.R. § 404.1527(d); Tonapetyan v. (9th Cir. 2011)( Rejection of the treating Second, the ALJ gave legally sufficient reasons for rejecting Dr. 22 Butler s March 23, 2011 physical RFC assessment. 23 rejected Dr. Butler s opinion because it was unsupported by the 24 objective medical evidence. 25 Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004)(ALJ may discredit 26 treating physician s opinion that is unsupported by medical findings). 27 Dr. Butler opined that Plaintiff was disabled due to uncontrolled 28 diabetes, uncontrolled hypertension, obesity, lower back pain, and (AR at 54.) 12 The ALJ properly See Batson v. Comm r of Soc. 1 diabetic neuropathy. 2 that Plaintiff suffers from uncontrolled diabetes and hypertension, 3 Plaintiff fails to point to any objective medical evidence in the 4 record, indicating that these conditions are disabling. Plaintiff did 5 develop diabetic neuropathy, but she suffers only mild, neuropathic 6 pain. 7 lower back pain, Plaintiff fails to point to any objective medical 8 evidence in the record, indicating that her lower back pain is 9 disabling. 10 (AR at 786.) However, while it is undisputed (AR at 788; see also AR at 359.) Likewise, regarding her The ALJ also rejected Dr. Butler s opinion because it was 11 inconsistent with his own treatment notes. 12 proper ground for rejecting a treating physician s opinion. 13 Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003)(holding that a 14 treating doctor s opinion regarding patient s RFC can be discounted if 15 it is unsupported by a doctor s own treatment notes); Bayliss v. 16 Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005)(discrepancies between a 17 doctor s own notes and conclusions constitute a clear and convincing 18 reason to reject that doctor s opinion.). 19 Butler stated that Plaintiff suffered from fatigue and pain that 20 interfered with her ability to work. 21 treatment notes indicate otherwise. For example, on January 20, 2011, 22 Dr. Butler reported that Plaintiff was well-appearing and in no 23 acute distress. 24 state for two months with her sick mother. 25 2011, Dr. Butler reported that Plaintiff was general[ly] able to do 26 usual 27 weakness. 28 Plaintiff was well-appearing and in good general state of health, (AR at 54.) This is a See In his RFC assessment, Dr. (AR at 786-87.) But his own He further noted that Plaintiff had been out of the activities and had (AR at 757-58.) good (AR at 764.) appetite, no On March 21, fatigue and no On May 3, 2011, Dr. Butler reported that 13 1 and that Plaintiff had good exercise tolerance and no fatigue. 2 (AR at 837.) Additionally, on June 19, 2011, Dr. Butler reported that 3 Plaintiff 4 appetite, no fatigue, and no weakness. 5 was in no acute distress, and had a general good (AR at 835.) Accordingly, because the ALJ properly discounted the treating 6 physicians opinions, Plaintiff s claim is without merit. 7 E. Credibility 8 Plaintiff contends that the ALJ failed to properly assess her 9 subjective complaints and testimony and the lay witness statements of 10 her daughter. 11 1. 12 An ALJ must engage in a two-step analysis to determine whether a Plaintiff s Testimony 13 claimant s 14 Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). 15 First, the ALJ must determine whether the claimant has presented 16 objective medical evidence of an underlying impairment which could 17 reasonably be expected to produce the pain or other symptoms alleged. 18 Id. at 1036. 19 could reasonably be expected to cause the severity of the symptom she 20 has alleged; she need only show that it could reasonably have caused 21 some degree of the symptom. 22 test and there is no evidence of malingering, the ALJ can only reject 23 the claimant s testimony about the severity of the symptoms if she 24 gives specific, clear and convincing reasons for the rejection. 25 Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)(quotation 26 omitted); Lingenfelter, 504 F.3d at 1036. testimony regarding subjective pain is credible. The claimant is not required to show that her impairment Id. If the claimant meets the first 27 At the administrative hearing, Plaintiff testified that she was 28 limited in her ability to work by leg and feet numbness, back pains 14 1 and dizzy spells. 2 for one hour, walk 30 minutes, sit 30 minutes to an hour, and lift 10 3 to 20 pounds. 4 (AR at 20-21.) She alleged that she could stand (AR at 28-29.) In his decision, the ALJ gave several valid reasons for rejecting 5 Plaintiff s 6 subjective complaints were not supported by the objective medical 7 evidence. 8 objective evidence supporting subjective symptom testimony is a factor 9 that may be considered in a credibility determination. complaints. (AR at 52.) First, the ALJ noted that Plaintiff s Although not sufficient alone, a lack of See 20 C.F.R. 10 §§ 404.1529(c), 416.929(c)(2); Rollins v. Massanari, 261 F.3d 853, 857 11 (9th Cir. 2001)( While subjective pain testimony cannot be rejected on 12 the sole ground that it is not fully corroborated by objective medical 13 evidence, 14 determining the severity of the claimant s pain and its disabling 15 effects. ). Here, as discussed above, Plaintiff fails to point to any 16 objective 17 disabling. 18 the medical medical evidence evidence is still indicating a that relevant her factor impairments in were Second, the ALJ properly noted that Plaintiff s activities of 19 daily living were inconsistent with her subjective complaints. 20 Tommasetti, 533 F.3d at 1039 (An ALJ may consider the claimant s daily 21 activities 22 credibility); Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)(same). 23 The record indicates that Plaintiff is able to tend to her personal 24 care needs, do light household chores, shop in stores and handle 25 money. 26 starts, uses public transportation, and socializes. 27 81, 187-89.) 28 as one of many factors (AR at 33-34, 177, 179-80, 187) in weighing a See claimant s She also finishes what she (AR at 34, 180- Finally, the ALJ noted evidence of Plaintiff s poor compliance 15 1 with treatment. 2 many factors in weighing a claimant s credibility, including an 3 unexplained or inadequately explained failure to seek treatment or to 4 follow a prescribed course of treatment. ). 5 in the record that Plaintiff s diabetes, and consequently her diabetic 6 neuropathy, was poorly controlled due to lack of compliance. 7 342.) Tommasetti, 533 F.3d at 1039 ( The ALJ may consider 8 2. (AR at As such, the Court rejects this claim. 9 Here, there is evidence Lay Witness Testimony 10 The testimony of lay witnesses about their own observations 11 regarding the claimant s impairments constitutes competent evidence 12 that must be taken into account and evaluated by the Commissioner in 13 the disability evaluation. 14 Cir. 2009); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 15 2006); Stout v. Comm r of Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th 16 Cir. 2006). 17 reasons that are germane to that witness. Carmickle v. Comm r of Soc. 18 Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008); Stout, 454 F.3d at 19 1053 (citing Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993)); 20 Bayliss, 427 F.3d at 1218; Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 21 2001). [W]here the ALJ s error lies in a failure to properly discuss 22 competent lay testimony favorable to the claimant, a reviewing court 23 cannot consider the error harmless unless it can confidently conclude 24 that no reasonable ALJ, when fully crediting the testimony, could have 25 reached a different disability determination. Stout, 454 F.3d at 26 1056. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Such testimony cannot be discounted unless the ALJ gives 27 In support of Plaintiff s application for disability benefits, 28 her daughter, Desiraa Jordan, submitted a Third Party Function 16 1 Report, detailing Plaintiff s daily activities. 2 the report, Ms. Jordan wrote that Plaintiff cannot stand or walk for 3 a long period of time and that she cannot lift heavy objects. 4 177, 181.) 5 for Plaintiff. 6 cannot handle stress well, and she cries and gets frustrated. 7 at 182.) 8 9 (AR at 176-83.) In (AR at She also wrote that she does all the house and yard work (AR at 178-79.) According to Ms. Jordan, Plaintiff (AR In his decision denying benefits, the ALJ gave several reasons for rejecting Ms. Jordan s testimony. Specifically, the ALJ noted 10 that Ms. Jordan was not medically trained, was not a disinterested 11 third party, and that her statements were not supported by objective 12 medical evidence. 13 reasons for rejecting lay witness testimony. 14 464 F.3d 968, 972 (9th Cir. 2006)(lay witness s close relationship 15 with claimant is a legitimate, germane reason for rejecting that 16 witness s 17 ( Inconsistency with medical evidence is a valid and germane reason 18 for discounting lay witness testimony. ). 19 Plaintiff s claim. 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // (AR at 54-55.) testimony); see also 28 17 These are permissible, germane See Greger v. Barnhart, Bayliss, 427 F.3d at 1218 Thus, the Court rejects 1 ORDER 2 Accordingly, IT IS ORDERED that: 3 1. The decision of the Commissioner is AFFIRMED. 4 2. This action is DISMISSED WITH PREJUDICE. 5 3. The Clerk of the Court shall serve this Decision and Order 6 and the Judgment herein on all parties or counsel. 7 8 DATED: December 11, 2013 9 ________________________________ 10 CARLA M. WOEHRLE United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.