Zina Steagall v. Michael J Astrue, No. 5:2011cv01389 - Document 20 (C.D. Cal. 2012)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal; IT IS ORDERED that: Judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. See order for details. (jy)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ZINA STEAGALL, Plaintiff, 12 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) ) NO. EDCV 11-01389 SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Plaintiff Zina Steagall ( Plaintiff ) seeks review of the decision 22 by 23 Commissioner ) to deny her disability benefits. 24 on September 9, 2011. 25 undersigned United States Magistrate Judge, pursuant to 28 U.S.C. § 26 636(c). 27 AFFIRMED. 28 \\ the Commissioner of Social Security Administration ( the She filed a Complaint The parties consented to the jurisdiction of the For the reasons stated below, the Commissioner s decision is 1 II. 2 PROCEDURAL HISTORY 3 4 Plaintiff filed a previous application for disability insurance 5 benefits under Title XVI of the Social Security Act, which was denied on 6 October 16, 1997. 7 the current application for supplemental security income on March 27, 8 2007, alleging a disability onset date of March 27, 2007. 9 Plaintiff based her claim on back pain. (Administrative Record AR 134). (AR 138). Plaintiff filed (AR 601). The Social Security 10 Administration (the Agency ) denied Plaintiff s claim on June 15, 2007. 11 (AR 59). The denial was upheld upon reconsideration on August 10, 2007. 12 (AR 64). 13 14 Plaintiff then requested a hearing, (AR 70), which was held before 15 an Administrative Law Judge ( ALJ ). (AR 28-56). 16 and was represented by counsel. 17 Joseph Mooney, testified at a separate hearing on March 5, 2009. (AR 23- 18 27). (AR 28). Plaintiff appeared A vocational expert ( VE ), 19 20 On May 19, 2009, the ALJ issued a decision denying benefits. 21 8-20). Plaintiff sought review of the ALJ s decision before the Appeals 22 Council, (AR 21), which denied her request on July 31, 2009. 23 In 2009, Plaintiff sought review by this Court by filing Steagall v. 24 Astrue, Case No. EDCV 09-1601 SS. 25 Court 26 supplemental testimony from the VE. 27 expanded on the grounds for remand and ordered that a subsequent claim remanded for further (AR 566-67). administrative 28 2 (AR (AR 1-3). On April 4, 2010, this proceedings, (AR 566-69). to obtain The Appeals Council 1 be associated and consolidated with this case on June 10, 2010. 2 (AR 572-73). 3 4 ALJ Sharilyn Hopson held a third hearing in this case on April 13, 5 2011. (AR 496-549). The ALJ heard testimony from Plaintiff; a medical 6 expert, Dr. Jeremy Landau; a lay witness, Cynthia Quinn, Plaintiff s 7 aunt; and a vocational expert, David Rinehart. 8 represented by counsel. 9 Plaintiff s claim, finding Plaintiff able to perform a limited range of (AR 496). (Id.). Plaintiff was On June 17, 2011, the ALJ denied 10 light work. 11 Appeals Council. The ALJ s decision therefore became the final decision 12 of the Agency. 13 (Compl. 1). (AR 457-468). Plaintiff did not seek review from the Plaintiff commenced this action on August 31, 2011. 14 15 III. 16 FACTUAL BACKGROUND 17 18 Plaintiff was born on July 13, 1967 and was forty-three years old 19 at the time of the last hearing. 20 education is eleventh grade. 21 writes English. (AR 133). (AR 32). Her highest level of Plaintiff speaks, reads and (AR 137). 22 23 A. Plaintiff s Medical History 24 25 On August 20, 2006, Plaintiff was admitted to Hemet Valley Medical 26 Center for complaints of chest pain, headaches and hypertension. 27 229). 28 December 7, 2006. (AR Plaintiff injured her neck and lower back in a car accident on (AR 197-98). Plaintiff was treated for non-bleeding 3 1 hemorrhoids, and there was evidence of a past rectal bleeding on 2 December 21, 2006. 3 emergency room for headaches, but a CT scan was normal. 4 Plaintiff went to the emergency room on November 29, 2007 for right 5 shoulder pain following a car accident on November 17, 2007, but the X- 6 ray was normal. (AR 219). On May 19, 2007, Plaintiff went to the (AR 278). (AR 276). 7 8 On May 22, 2007, Dr. Mohammad Khayali conducted a neurological 9 consultative examination of Plaintiff after she was admitted to the 10 hospital complaining of headaches and a sore throat. (AR 284-85). Dr. 11 Khayali diagnosed nonspecific headaches and recommended that Plaintiff 12 cease taking antibiotics. (Id.). 13 On December 6, 2007, Dr. Milind Panse, an orthopedist, examined 14 15 Plaintiff for right shoulder pain. (AR 357). Dr. Panse s physician s 16 assistant, Amber Hollenbeck, diagnosed bursitis and tendinitis. 17 358). 18 followed up with Amber Hollenbeck, who prescribed eight sessions of 19 physical therapy, as well as ice and heat therapy. Plaintiff declined a cortisone injection. (AR 358). (AR Plaintiff (AR 356). 20 21 Plaintiff was admitted to Hemet Valley Medical Center for headaches 22 and hypertension on August 29, 2008. 23 that rebound, or withdrawal, and possible opioid dependency caused 24 her 25 frequently. (Id.). Plaintiff complained of back and neck pain, but X- 26 rays were normal. headaches because Plaintiff (AR 298). continued (AR 310-11). 27 28 4 The doctors suspected to ask for Dilaudid 1 On September 1, 2008, Dr. Khayali conducted a neurological 2 examination after Plaintiff was admitted to the hospital for headaches. 3 (AR 303-04). 4 dependency and hypertension. (Id.). He recommended pain management and 5 continued analgesics. He determined the cause to be rebound from narcotic (Id.). 6 7 Plaintiff saw Dr. Kurt Frauenpreis, her primary care physician, for 8 complaints of hypertension and headaches on September 17, 2008. 9 322). (AR He diagnosed poorly controlled high blood pressure and opioid 10 withdrawal. (Id.). On October 24, 2008, Plaintiff followed up with Dr. 11 Humayun Qureshi, a cardiologist, who diagnosed improvement with her 12 blood 13 Plaintiff had suffered tachycardia in the hospital, but it passed 14 quickly. 15 2009, who determined that her blood pressure was under control. 16 653). pressure. (AR (Id.). 365-67). Dr. Qureshi also determined that She saw a nephrologist, Dr. Ishak, on January 13, (AR 17 18 Plaintiff had carpal tunnel release surgery on her left hand on 19 September 25, 2009. (AR 735-742). Further examination showed increased 20 function in her left hand. 21 abdominal pain on March 2, 2009. 22 diverticulitis. (AR 735). Plaintiff was hospitalized for (AR 439). She was diagnosed as having (AR 440). 23 24 On February 8, 2011, Dr. Khayali conducted a neurological 25 consultative examination. 26 were both normal. (Id.). Plaintiff still had mild to borderline carpal 27 tunnel on the left and mild carpal tunnel syndrome on the right. 28 Both sides had improved. (Id.). He recommended that Plaintiff decrease (AR 854-56). 5 Plaintiff s strength and gait (Id.). 1 pain medication 2 medications. and use more non-steroidal anti-inflammatory (Id.). 3 4 B. Consultative Examinations 5 6 On May 25, 2007, Dr. Sabourin conducted an orthopedic consultation 7 that revealed no nerve damage, but Plaintiff was not completely 8 cooperative. 9 refuses to move the back stating it will hurt. (AR 260-63). Dr. Sabourin observed that Plaintiff She is noted to be able 10 to sit on the examination with her legs straight out in front of her. 11 (AR 261). 12 Dr. Sabourin noted that there is no deformity, scar, tenderness, spasm, 13 swelling or warmth in the neck and no tenderness, warmth, crepitus, 14 instability, or swelling in the shoulders. 15 wrote that [e]xamination reveals giving way with every muscle tested in 16 the upper and lower extremities. 17 could lift or carry 20 pounds occasionally and 10 pounds frequently. 18 (AR 263). 19 workday and sit for six hours. 20 (Id.). She also refused to move her neck or shoulders. (Id.). (AR 262). (AR 261-62). Dr. Sabourin also He found that Plaintiff She could stand and walk for six hours of an eight hour She has no manipulative limitations. 21 22 On December 3, evaluation 2008, from Plaintiff Dr. received Gabriel complete Fabella, which internal 23 medicine 24 hypertension, limited range of motion for the right shoulder and 25 atypical sharp pain. 26 and she had a normal range of motion in the neck. (Id.). 27 noted that Plaintiff drove herself to the office. (AR 389). (AR 389-94). T. a showed She had no tenderness in the back, 28 6 Dr. Fabella 1 On October 15, 2009, Plaintiff received a complete internal 2 medicine evaluation from Dr. Nizar Salek, who determined that Plaintiff 3 had normal range of motion in both shoulders and her neck. 4 Plaintiff walked normally, had no trouble getting in or out of her chair 5 and did not complain of headaches. 6 from her recent carpal tunnel surgery, but there was no evidence of 7 tenderness, and range of motion was normal. (Id.). (AR 716-23). Plaintiff s hands had scars (Id.). 8 9 A blood test in September 2010 came back positive for Phencyclidine 10 but negative for Plaintiff s prescribed painkillers. 11 laboratory 12 controlled substance with no known licit pharmaceutical applications. 1 13 (Id.). 14 inconsistent with the reported prescription. 15 blood test was again negative for Plaintiff s prescribed painkillers. 16 (AR 747). also The noted that laboratory Phencyclidine noted that the is lack a (AR 752). DEA of (Id.). Schedule analgesics The II is A January 2011 17 18 C. Non-Consultative Examinations 19 20 On June 12, 2007, Dr. M. H. Yee reviewed Plaintiff s records and 21 found that she suffered from a cervical strain, a lumbar strain and 22 hypertension. 23 about once a month when she did not take her hypertension medicine. 24 268). 25 recommended that Plaintiff could lift ten pounds frequently and twenty 26 pounds occasionally; she could stand and/or walk about six hours in an Dr. (AR 266-71). Yee s residual She also complained of having headaches functional capacity ( RFC ) (AR assessment 27 1 28 Phencyclidine is the illegal hallucinogen commonly known as PCP. U.S. v. Barnett, 667 F.2d 835, 838 (9th Cir. 1982). 7 1 eight-hour workday; she could sit about six hours in an eight-hour 2 workday; she had no limitations on pushing or pulling; she should never 3 climb; and she should avoid concentrated exposure to hazards like 4 machinery and heights. 5 level of exertion. 6 confirmed Dr. Yee s analysis and Defendant s first denial of benefits. 7 (AR 274). (Id.). Otherwise, she was capable of a light (AR 273). On August 6, 2007, Dr. J. Hartman 8 9 On October 26, 2009, Dr. A. Lizarraras reviewed Plaintiff s record. 10 (AR 727-34). His RFC assessment was identical to Dr. Yee s, except that 11 he removed the restriction on exposure to hazards. 12 Lizarraras found Plaintiff s allegations credible except as to the 13 persistence, intensity and functional limitations. (Id.). Dr. (AR 732, 734). 14 15 D. Plaintiff s Testimony 16 17 Plaintiff testified on October 31, 2008. (AR 30). She was 41 18 years old at the time of the hearing, weighed 224 pounds and was 5'8". 19 (AR 32). 20 testified that 21 provider. (AR 33). 22 2006 and November 2007. 23 back pain that spreads from her lower back to her neck. Her highest education level was eleventh grade. she last worked in 2000 as a (Id.). full-time She childcare She noted that she was in car accidents in December (AR 33, 47). As a result, she says she has (AR 45-46). 24 25 Plaintiff also claims to suffer from headaches, numbness in her 26 extremities and high blood pressure. 27 tires easily from moving around rapidly. 28 having tachycardia, pain in her entire body and photophobia. 8 (AR 34). She stated that she (Id.). She testified to (AR 34- 1 37). She claimed to lie down four to six hours a day. 2 said that she does not drive, do laundry or shop. 3 described a burning pain in her upper thigh, a swollen right ankle and 4 chest pain. 5 (AR 40). 6 thirty minutes at a time. 7 helps with the chest pain but makes the headaches worse. 8 She said that her pain medication makes her drowsy. (AR 39-42). (AR 37). (AR 38-39). She She She rated her leg pain as seven out of ten. She rated her chest pain as eight out of ten, lasting for (AR 42). She testified that nitroglycerin (AR 42-43). (AR 43). 9 10 Additionally, Plaintiff claimed that she cannot sit or stand for 11 more than ten minutes. (AR 45). 12 her right shoulder, which causes pain and prevents her from lifting more 13 than ten pounds. 14 half a block without suffering pain and fatigue. 15 testified that she cannot climb stairs, bend over, climb ladders, kneel 16 or crawl because of her back. 17 ankle hurt. 18 ache. 19 claimed to have stopped driving several years before the hearing. 20 52-53). 21 (AR 53-54). 22 stamps. 23 ten-year-old 24 benefits, 25 Plaintiff s aunt passed away. (AR 46-48). (AR 50-51). (AR 51). She testified that she has bursitis in She said she is able to walk less than (AR 50). (AR 49). She She noted that cold makes her She testified that humidity makes her body She first received a drivers license in 2006 but (AR She noted that she lived with her wife and their four children. She said her income consists of $588 per month in food (AR 54). She also says she collects Social Security for her daughter, which her who has cortical seventeen-year-old blindness, and son receiving began survivors when (AR 54-55). 26 27 At her second ALJ hearing on April 13, 2011, Plaintiff testified 28 that she was self-employed braiding hair until 2009, when her hands 9 1 could no longer do the work. 2 three heads per day, two days out of the week, charging between $50 and 3 $175, depending on the service. 4 of at least $1200 per month, but Plaintiff testified that she made close 5 to $500 per month. 6 and did not file a tax return. (Id.). (AR 501). She stated that she braided (AR 502). The ALJ calculated an income She did not know exactly how much she made (AR 503). 7 8 9 Next, Plaintiff claimed to have stopped drinking alcohol at 18 and to not using drugs. (AR 506-07). She smokes cigarettes. (AR 507). 10 Plaintiff testified that most days, she goes to bed around 10:00 p.m. 11 and wakes up around 11:30 a.m. or noon. 12 being drowsy from her pain medication. 13 takes Norco six times per day. 14 her muscles. (AR 508-10). 15 (AR 510-11). She testified that sometimes she can use the bathroom on 16 her own, and sometimes she gets help from her aunt or her daughter. 17 511). 18 Plaintiff said she reads the Bible sometimes and does not use the 19 computer. 20 but it did not help. 21 acupuncturist for her back problems. 22 severe shoulder pain all the time. 23 her hand at a ten out of ten before taking painkillers and an eight out 24 of ten afterwards. 25 of ten while testifying. (Id.). (AR 514). (AR 509). She complained of She noted that she She said she takes Soma to relax She said that her aunt bathes her and cooks. She observed that she has stopped going to church. (AR 513). (AR (AR 512). She testified that she had carpal tunnel surgery, (AR 515). (AR 535-36). She noted that she had seen an (AR 516). (AR 531-32). She claimed to have She rated the pain in She claimed that her pain was ten out (AR 535). 26 27 28 10 1 E. Vocational Expert s Testimony 2 3 The first vocational expert ( VE ) testified on March 5, 2009, (AR 4 24-27), but this Court remanded for the ALJ to ask the VE a hypothetical 5 that included all of Plaintiff s limitations. (AR 566-69). 6 7 David Rinehart testified at the hearing on April 13, 2011 as a VE. 8 (AR 544-48). 9 Plaintiff s file, the ALJ posed six hypotheticals to the VE. 10 48). After the VE heard Plaintiff s testimony and reviewed (AR 546- The ALJ gave the first hypothetical as follows: 11 12 [a person] who is 39 years old, has an 11th-grade education, 13 is literate and speaks English, and can perform the demands of 14 work within the following RFC. She can stand, walk or sit six 15 hours out of an eight-hour day with normal breaks such as 16 every 17 frequently, 20 pounds occasionally. 18 stoop and bend. 19 ladders, work at heights or balance. 20 neck motion but should avoid extremes of motion. 21 work above shoulder level on the right, [sic] there is no 22 limitation on the left. 23 air-conditioned for temperature control. two hours. She can lift and/or carry 10 pounds She can occasionally She can climb stairs but she can not climb She can do occasional She can not And the work environment should be 24 25 (AR 546-47). 26 could perform unskilled, entry-level jobs like information clerk, fund 27 raiser or inspector and hand packager. Given this hypothetical, the VE found that such a person 28 11 (AR 547). 1 The second hypothetical was identical to the first, except with the 2 additional restrictions that the person do occasional neck motion, avoid 3 extremes of neck motion, hold the head in a comfortable position at 4 other times and maintain a fixed head position for 15 to 30 minutes at 5 a time occasionally. 6 would still be available. (AR 547). The VE determined that the same jobs (Id.). 7 8 The ALJ s third hypothetical added that the person not do forceful 9 gripping, grasping or twisting, but she could do up to frequent fine 10 manipulation such as keyboarding, and gross manipulation such as opening 11 doors and carrying files. 12 still be able to do the same jobs. (AR 548). The VE responded that she would (Id.). 13 14 The ALJ s fourth hypothetical added the person had to be able to 15 wear a wrist brace. (Id.). 16 able to do the same jobs. The VE testified that she would still be (Id.). 17 18 The ALJ s fifth hypothetical added that the person be off task 20% 19 of the time due to drowsiness and pain. (Id.). With that change, the 20 VE determined that the person could not maintain competitive employment. 21 (Id.). 22 23 The ALJ s sixth hypothetical asked if the person would still be 24 able to work if she were absent three or more days a month because of 25 medications and pain. 26 circumstances, Plaintiff would not be able to work. (Id.). The VE testified that, under those 27 28 12 (Id.). 1 F. Lay Witness Testimony 2 3 Plaintiff s aunt, Cynthia Quinn, also testified at the March 5, 4 2009 hearing. (AR 538-44). She testified that she takes care of 5 Plaintiff and Plaintiff s daughters. 6 Plaintiff breakfast and helps her bathe and dress. 7 that Plaintiff was getting worse because her feet bother her and has 8 lost dexterity in her hands. 9 Plaintiff outside, sits with her, and gets her ready for bed. (Id.). (AR 539). She said she gives (Id.). She noted She testified that she takes (AR 540). 10 Ms. Quinn noted that her 29-year-old daughter also helps take care of 11 Plaintiff. (Id.). Ms. Quinn stated that she makes dinner for Plaintiff 12 and assists her in taking medications. 13 Plaintiff is often in pain and has good and bad days. 14 Quinn testified that Plaintiff stays in bed most of the day but is not 15 necessarily asleep. 16 11:30 a.m. 17 an hour on the couch and then return to bed. (Id.). (AR 544). (AR 540-41). She observed that (AR 542). Ms. She stated that Plaintiff gets up at about She reported that Plaintiff might sit for about (Id.). 18 19 IV. 20 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 21 22 To qualify for disability benefits, a claimant must demonstrate a 23 medically determinable physical or mental impairment that prevents him 24 from engaging in substantial gainful activity2 and that is expected to 25 result in death or to last for a continuous period of at least twelve 26 27 28 2 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay or profit. 20 C.F.R. §§ 404.1510, 416.910. 13 1 months. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 2 U.S.C. § 423(d)(1)(A)). 3 incapable of performing the work he previously performed and incapable 4 of performing any other substantial gainful employment that exists in 5 the national economy. 6 1999) (citing 42 U.S.C. § 423(d)(2)(A)). The impairment must render the claimant Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 7 8 9 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are: 10 11 (1) Is the claimant presently engaged in substantial gainful 12 activity? If so, the claimant is found not disabled. If 13 not, proceed to step two. 14 (2) Is the claimant s impairment 15 claimant is found not disabled. 16 severe? If not, the three. 17 (3) If so, proceed to step Does the claimant s impairment meet or equal one of a 18 list of specific impairments described in 20 C.F.R. Part 19 404, Subpart P, Appendix 1? If so, the claimant is found 20 disabled. 21 (4) If not, proceed to step four. Is the claimant capable of performing his past work? 22 so, the claimant is found not disabled. 23 If to step five. 24 (5) If not, proceed Is the claimant able to do any other work? If not, the 25 claimant is found disabled. If so, the claimant is found 26 not disabled. 27 28 14 1 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 2 949, 953-54 (9th Cir. 2001) (citing Tackett); 20 C.F.R. §§ 404.1520(b)- 3 404.1520(f)(1) & 416.920(b)-416.920(f)(1). 4 5 The claimant has the burden of proof at steps one through four, and 6 the Commissioner has the burden of proof at step five. 7 F.3d 8 affirmative duty to assist the claimant in developing the record at 9 every step of the inquiry. at 953-54 (citing Tackett). Additionally, Id. at 954. Bustamante, 262 the ALJ has an If, at step four, the claimant 10 meets his burden of establishing an inability to perform past work, the 11 Commissioner must show that the claimant can perform some other work 12 that exists in significant numbers in the national economy, taking 13 into 14 education, and work experience. 15 Reddick, 157 F.3d at 721; 20 C.F.R. §§ 404.1520(f)(1), 416.920(f)(1). 16 The Commissioner may do so by the testimony of a vocational expert or by 17 reference to the Medical-Vocational Guidelines appearing in 20 C.F.R. 18 Part 404, Subpart P, Appendix 2 (commonly known as the Grids ). 19 Osenbrock v. 20 Tackett). When a claimant has both exertional (strength-related) and 21 nonexertional limitations, the Grids are inapplicable and the ALJ must 22 take the testimony of a vocational expert. 23 864, 869 (9th Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 24 (9th Cir. 1988)). account the claimant s Apfel, 240 F.3d residual functional capacity,3 age, Tackett, 180 F.3d at 1098, 1100; 1157, 1162 (9th Cir. 2001) (citing Moore v. Apfel, 216 F.3d 25 26 27 28 3 Residual functional capacity is what [one] can still do despite [his] limitations and represents an assessment based upon all of the relevant evidence. 20 C.F.R. §§ 404.1545(a), 416.945(a). 15 1 V. 2 THE ALJ S DECISION 3 4 The ALJ employed the five-step sequential evaluation process and 5 concluded that Plaintiff was not disabled within the meaning of the 6 Social Security Act. 7 that although Plaintiff s work as a hairdresser in 2008 and 2009 was 8 indicative of the ability to work, there was not enough evidence to show 9 that Plaintiff had engaged in substantial gainful activity. (AR 459-68). At the first step, the ALJ observed (AR 460). 10 Thus, the ALJ concluded that Plaintiff had not engaged in substantial 11 gainful activity at any time relevant to her decision. 12 two, she found that Plaintiff had the severe impairments of obesity; 13 headaches; degenerative disc disease of the entire spine, consistent 14 with age; treated hypertension; chronic kidney disease, stage two; 15 diverticulosis with one attack of diverticulitis; right hemicolectomy 16 for undetermined reason; right shoulder bursitis/tendinitis; and mild 17 anemia. (Id.). At step (Id.). 18 19 At the third step, the ALJ found that Plaintiff s impairments did 20 not meet or medically equal one of the listed impairments in 20 C.F.R. 21 Part 404, Subpart P, Appendix 1. 22 considered the entire record in determining that Plaintiff had the RFC 23 to perform a limited range of light exertion. (Id.). Specifically, the 24 ALJ found that Plaintiff can (Id.). At step four, the ALJ 25 26 lift 27 frequently. 28 hour workday, and she can sit for 6 hours out of an 8-hour and carry 20 pounds occasionally and 10 pounds She can stand and walk for 6 hours out of an 8- 16 1 workday with breaks every 2 hours. She can occasionally stoop 2 and bend. She can climb stairs, but she cannot climb ladders, 3 work at heights, or balance. 4 motion, but she should avoid extremes of motion. 5 should be held in a comfortable position at other times. 6 can maintain a fixed head position for 15-30 minutes at a 7 time, occasionally. 8 the right; she has no limitations on the left. 9 environment should be air conditioned for temperature control. 10 After April 2009, she could not perform forceful gripping, 11 grasping or twisting, but she could do up to frequent fine 12 manipulation such as keyboarding, and gross manipulation such 13 as opening drawers and carrying files. 14 brace as needed. She can perform occasional neck Her head She She cannot work above shoulder level on Her work She can wear a wrist 15 16 (AR 460-61). The ALJ incorporated the limitations prescribed by the 17 non-consulting physician and found that Plaintiff could perform a 18 limited range of work at the light exertional level. (AR 460-67). 19 20 Having addressed Plaintiff s functional limitations, the ALJ found 21 that Plaintiff was unable to perform any of her past work. 22 Specifically, because the ALJ was unable to verify whether Plaintiff s 23 past relevant work as a hairdresser was substantial gainful activity, 24 the ALJ found that Plaintiff had no past relevant work. (AR 467). (Id.). 25 26 Finally, at step five, the ALJ concluded that, based on Plaintiff s 27 RFC and the testimony of the VE, Plaintiff could work as an information 28 clerk, fund raiser or inspector/hand 17 packager. (AR 467-68). 1 Accordingly, the ALJ determined that Plaintiff was not disabled, as 2 defined in the Social Security Act, at any time through the date of the 3 decision. (AR 468). 4 5 VI. 6 STANDARD OF REVIEW 7 8 9 Under 42 U.S.C. § 405(g), a district Commissioner s decision to deny benefits. court may review the The court may set aside the 10 Commissioner s decision when the ALJ s findings are based on legal error 11 or are not supported by substantial evidence in the record as a whole. 12 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (citing 13 Tackett, 180 F.3d at 1097); Smolen v. Chater, 80 F.3d 1273, 1279 (9th 14 Cir. 1996) (citing Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). 15 16 Substantial evidence is more than a scintilla, but less than a 17 preponderance. 18 112 F.3d 1064, 1066 (9th Cir. 1997)). 19 reasonable person might accept as adequate to support a conclusion. 20 Id. (citing Jamerson, 112 F.3d at 1066; Smolen, 80 F.3d at 1279). 21 determine whether substantial evidence supports a finding, the court 22 must consider the record as a whole, weighing both evidence that 23 supports 24 conclusion. 25 F.3d 953, 956 (9th Cir. 1993)). 26 either affirming or reversing that conclusion, the court may not 27 substitute its judgment for that of the Commissioner. Reddick, 157 F.3d 28 at 720-21 (citing Flaten v. Sec y, 44 F.3d 1453, 1457 (9th Cir. 1995)). and Reddick, 157 F.3d at 720 (citing Jamerson v. Chater, evidence that It is relevant evidence which a detracts from the To [Commissioner s] Aukland, 257 F.3d at 1035 (citing Penny v. Sullivan, 2 If the evidence can reasonably support 18 1 VII. 2 DISCUSSION 3 4 Plaintiff argues that the ALJ erred for two reasons: (1) the ALJ 5 did not properly consider Plaintiff s testimony, (Mem. Supp. Compl. at 6 15-22), and (2) the ALJ did not properly consider Cynthia Quinn s 7 testimony regarding the severity and functional limits of Plaintiff s 8 pain. 9 the Court disagrees with both of Plaintiff s contentions. (Mem. Supp. Compl. at 7-15). For the reasons discussed below, 10 11 A. The ALJ Provided Clear And Convincing Reasons For Rejecting Plaintiff s Subjective Pain Testimony 12 13 1. 14 Plaintiff s Testimony 15 16 Whenever an ALJ s disbelief of a plaintiff s testimony is a 17 critical factor in a decision to deny benefits, as it is here, the ALJ 18 must make explicit credibility findings. 19 1229, 1231 (9th Cir. 1990). 20 showing that the plaintiff is malingering, the ALJ s reasons for 21 rejecting the plaintiff s testimony must be clear and convincing. 22 Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). 23 offers evidence of a medical impairment that could reasonably be 24 expected to produce pain, the ALJ may not require the degree of pain to 25 be corroborated by objective medical evidence. Bunnell v. Sullivan, 947 26 F.2d 341, 346-47 (9th Cir. 1991) (en banc). 27 \\ 28 \\ Rashad v. Sullivan, 903 F.2d Unless there is affirmative evidence 19 If a plaintiff 1 An ALJ can, however, reject plaintiff s testimony regarding the 2 severity of her symptoms if she points to clear and convincing reasons 3 for doing so. 4 claimant s testimony regarding the severity of her symptoms is credible, 5 the ALJ may consider, among other things, the following evidence: (1) 6 ordinary techniques of credibility evaluation, such as the claimant s 7 reputation for lying, prior inconsistent statements concerning the 8 symptoms and other testimony by the claimant that appears less than 9 candid; (2) unexplained or inadequately explained failure to seek 10 treatment or to follow a prescribed course of treatment; and (3) the 11 claimant s daily activities. 12 finding is supported by substantial evidence in the record, the court 13 may not engage in second-guessing. See Smolen, 80 F.3d at 1283-84. Id. at 1284. To determine whether a If the ALJ's credibility Id. 14 15 Here, the ALJ did (AR 460-67). not explicitly find that Plaintiff was 16 malingering. The ALJ found that Plaintiff had a severe 17 impairment likely to produce some pain. 18 Plaintiff s 19 not linked to any significant medical findings, (3) her hypertension and 20 kidney disease were now controlled, (4) she had not sought treatment for 21 her right shoulder bursitis recently, (5) her complaints of chest pain 22 were unsubstantiated except for mild sinus tachycardia and (6) her 23 carpal tunnel release improved her hands functionality more than she 24 admitted. 25 concerning the intensity, persistence and limiting effects of these 26 symptoms [were] not credible to the extent that they [were] inconsistent 27 with the above residual functional capacity assessment. (AR 462). The 28 ALJ gave several specific, clear and convincing reasons for rejecting (AR 460-1). The ALJ found (1) headaches were caused by drug abuse, (2) her back pain was (AR 465). The ALJ determined that Plaintiff s statements 20 1 Plaintiff s subjective complaints including medical records that do not 2 support Plaintiff s claims, Plaintiff s inconsistent statements and 3 Plaintiff s questionable conduct. (Id.). 4 5 In this case, the ALJ had clear and convincing reasons to discredit 6 Plaintiff s excess pain testimony. 7 claim of headaches because they resulted from narcotic rebound and were 8 manageable without strong pain medication. 9 are supported by the record because Plaintiff s headaches were diagnosed caused by rebound multiple First, the ALJ rejected Plaintiff s times, (AR 465-66). (AR 298, These reasons 10 as 304), and because 11 Plaintiff s blood twice tested negative for painkillers. (AR 747, 752); 12 see also Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (holding 13 that a lack of candor about drug and alcohol usage carries over to 14 descriptions of physical pain). 15 16 Second, the ALJ rejected Plaintiff s testimony about pain in her 17 back, (AR 465), because her degenerative changes were consistent with 18 age. 19 physical examinations of Plaintiff s back show nothing significantly 20 wrong. 21 Plaintiff s neurological examinations were normal. 22 284, 298, 300-01, 303, 306, 312). (AR 310-11, 360, 392, 720). (Id.). This reason Furthermore, radiograph studies and is supported by the record because (AR 276, 279, 283, 23 24 Third, the ALJ observed that Plaintiff s hypertension and kidney 25 disease were resolved by medication. (AR 465). The record demonstrates 26 that Plaintiff s kidney disease and hypertension have improved. 27 367). Her blood pressure is now under control. 28 21 (AR 654). (AR Her kidney 1 disease has not progressed, as the most recent renal sonogram was 2 normal. (AR 658). 3 4 Fourth, the ALJ discredited Plaintiff s history of right shoulder 5 bursitis/tendinitis because Plaintiff has had no recent treatment. 6 465). 7 to physical therapy in December 2007. 8 normal. 9 also Smolen, 80 F.3d at 1284 (holding that failure to seek treatment may 10 (AR The record indicates that Plaintiff s last treatment was limited (AR 359). (AR 356-58). Her X-rays were She declined a cortisone injection. (AR 358); see factor into ALJ s credibility determination). 11 12 Fifth, the ALJ rejected Plaintiff s complaints of chest pain 13 because her heart examinations have revealed nothing except mild sinus 14 tachycardia. 15 229-30, 232, 235, 278-79, 365-67, 392-93). (AR 465). The record confirms the ALJ s finding. (AR 16 17 Sixth, with respect to Plaintiff s hands, the ALJ determined that 18 Plaintiff underwent left carpal tunnel release but rejected Plaintiff s 19 complaints 20 improvement. (AR 465). The record indicates that Plaintiff s condition 21 has improved because her hands have increased functionality. 22 854). of no improvement because medical evidence showed (AR 735, 23 24 Her carpal tunnel syndrome improved to be mild/borderline on the 25 left and mild on the right. 26 testimony and the medical evidence undermines her credibility. 27 Smolen, 80 F.3d at 1284 (holding that inconsistent statements are 28 grounds to discredit testimony). (AR 854). 22 The conflict between her See 1 Seventh, the ALJ properly considered Plaintiff s inconsistent 2 statements and actions when discrediting Plaintiff s testimony. For 3 instance, Plaintiff s testimony regarding her headaches is inconsistent 4 with two blood tests. 5 Norco than prescribed after Dr. Khayali specifically recommended that 6 she decrease her use of narcotics. 7 854). 8 (AR 508), is inconsistent with her use of the illegal hallucinogen 9 Phencyclidine (PCP) in September 2010, (AR 752), and her frequently (AR 747, 752). Furthermore, Plaintiff took more (Compare AR 508-09 with AR 304, Additionally, Plaintiff s testimony that she does not use drugs, 10 asking for Dilaudid at the hospital. (AR 298). Similarly, Plaintiff 11 was inconsistent regarding her income because she testified that she 12 charged between $50 and $175 braiding hair for three clients two days a 13 week in 2008 and 2009, which the ALJ correctly calculated to be $1200 14 per month at minimum, but Plaintiff testified that she made only $500. 15 (AR 501-03). This testimony also conflicts her testimony from the first 16 ALJ hearing in October 2008 that she had stopped working in 2000, (AR 17 33) and could not work or stand for more than ten minutes. (AR 45). 18 19 Finally, additional evidence supports the ALJ s rejection of 20 Plaintiff s testimony. At her orthopedic consultation in May 2007, 21 Plaintiff refused to move her neck or back but was able to get onto the 22 examination table and gave way with every muscle tested. 23 see also Thomas, 278 F.3d at 959 (holding that failures to give maximum 24 effort during physical capacity examinations argue strongly as to lack 25 of credibility ). Plaintiff s testimony regarding her inability to work 26 is less credible because her earning record indicates no lifelong 27 interest or attachment to work. (AR 260-63); (AR 18); see also Thomas, 278 F.3d at 28 23 1 959 (holding that having shown little propensity to work in her 2 lifetime negatively affects credibility regarding inability to work). 3 Thus, 4 substantial evidence in the record supports the ALJ s 5 rejection of Plaintiff s testimony. Based on the foregoing, the Court 6 finds that the ALJ provided clear and convincing reasons for rejecting 7 Plaintiff s subjective pain. Accordingly, no remand is required. 8 9 10 B. The ALJ Provided Reasons Germane To Ms. Quinn In Discrediting Her Lay Witness Testimony 11 12 Plaintiff contends that the ALJ did not properly consider lay 13 witness testimony. (Mem. Supp. Compl. 14 Plaintiff argues that the ALJ improperly discredited the statements of 15 Plaintiff s aunt, Ms. Quinn, with respect to the extent of Plaintiff s 16 pain and inability to function. 17 Plaintiff s contention. (Id.). at 7-15). Specifically, The Court disagrees with 18 19 In determining whether a claimant is disabled, lay witness 20 testimony cannot be disregarded without comment. Molina v. Astrue, 21 674 F.3d 1104, 1115 (9th Cir. 2012) (emphasis, internal quotations and 22 citations omitted); 20 C.F.R. §§ 404.1513(d)(4) & (e), and 416.913(d)(4) 23 & (e). 24 gives reasons that are germane to each witness. 25 12 F.3d 915, 919 (9th Cir. 1993); see also Lewis v. Apfel, 236 F.3d 503, 26 511 (9th Cir. 2001) ( Lay testimony as to a claimant s symptoms is 27 competent evidence that an ALJ must take into account, unless he or she 28 expressly determines to disregard such testimony and gives reasons The ALJ may discount the testimony of lay witnesses only if she 24 Dodrill v. Shalala, 1 germane to each witness for doing so. (citations omitted)). If the 2 ALJ s ultimate credibility determination and reasoning are adequately 3 supported by substantial evidence in the record, no remand is required. 4 Id. (citing Batson v. Comm r of the Soc. Sec. Admin., 359 F.3d 1190, 5 1195-97 (9th Cir. 2004)). 6 7 The ALJ gave four reasons to give less weight to Ms. Quinn s 8 testimony: (1) her statements are not supported by the clinical or 9 diagnostic 10 plaintiff s 11 interest in Plaintiff s receiving benefits; and (4) she is not a medical 12 professional. medical evidence; subjective (2) her testimony is complaints; (3) Ms. has Quinn a repeat a of financial (AR 466). 13 14 15 1. The ALJ Properly Determined That Ms. Quinn s Testimony Was Not Supported By The Medical Evidence 16 17 The ALJ s most important reason to discredit Ms. Quinn s testimony 18 was that her statements are not supported by the clinical or diagnostic 19 medical evidence that is discussed more thoroughly herein. 20 Plaintiff argued that this was an improper reason to dismiss Ms. Quinn s 21 testimony because (1) it is a vague, conclusory statement and (2) the 22 very nature of excess pain and symptom testimony is that it is testimony 23 unsupported by medical evidence. 24 Court disagrees. (AR 466). (Mem. Supp. Compl. at 14-15). The 25 26 Regarding the ALJ s statement, the ALJ was not vague or conclusory 27 because she referenced her previous analysis of Plaintiff s impairments, 28 which was very specifically tied to the medical record. 25 (AR 466). 1 Regarding Plaintiff s hands, for instance, the ALJ addressed Ms. Quinn s 2 testimony that Plaintiff s condition is gradually deteriorating, (AR 3 539), with Dr. Khayali s records showing improvement. (AR 461, 854-56). 4 Inconsistency with medical evidence is a valid reason for rejecting a 5 lay witness' testimony. 6 Cir. 2005) (citing Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) 7 ("One reason for which an ALJ may discount lay testimony is that it 8 conflicts with medical evidence.")). Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th 9 10 Similarly, Ms. Quinn testified that Plaintiff s feet bother her. 11 (AR 544). The ALJ addressed this point by saying, there is no evidence 12 of [this] condition. 13 supported by objective medical evidence. 14 this testimony. (AR 465). Ms. Quinn s statement was not The ALJ properly discredited 15 16 2. The ALJ Properly Found That Ms. Quinn s Testimony Repeated 17 Plaintiff s Subjective Complaints Which The ALJ Provided Clear 18 and Convincing Reasons To Reject 19 20 The ALJ s second reason for discrediting Ms. Quinn s testimony is 21 that [h]er testimony appears to be no more than a parroting of the 22 subjective complaints already testified to by the complainant. 23 discussed above, the complainant s credibility is highly suspect, and 24 the repetition of the complainant s subjective complaints through her 25 aunt does not make them any more credible. 26 contends that this was error because (1) lay witnesses have personal 27 knowledge and have to rely to some extent on communications with 28 26 (AR 466). As Plaintiff 1 plaintiffs and (2) lay witness observations are valuable corroboration. 2 (Mem. Supp. Compl. at 9-10). The Court disagrees. 3 4 When an ALJ provides clear and convincing reasons for rejecting 5 plaintiff s own subjective complaints, and lay witness testimony is 6 similar to such complaints, it follows that the ALJ also gave germane 7 reasons for rejecting the lay witness s testimony. 8 Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009). 9 ALJ provided clear and convincing reasons for discrediting Plaintiff s 10 Valentine v. Comm r In this case, the testimony, as discussed above. 11 12 3. The ALJ Correctly Found That Ms. Quinn Has A Financial Interest In Plaintiff s Receiving Benefits 13 14 15 The ALJ s third reason for discrediting Ms. Quinn s testimony is 16 that she has a financial interest in seeing the complainant receive 17 benefits in that they live in adjoining duplexes, and the aunt helps 18 care for the complainant and her daughters, per her testimony. 19 466). Plaintiff contends that rejection based on familial and financial 20 interest is not germane to Ms. Quinn because it is common that the 21 people closest to a claimant are also a source of income for the 22 claimant. 23 to reject Plaintiff s aunt s testimony regarding her pain and symptoms 24 solely on the grounds that she was Plaintiff s aunt. 25 Comm r of the Soc. Sec. Admin., 166 F.3d 1294, 1298 (9th Cir. 1999) 26 (quoting Smolen, 80 F.3d 1289). 27 serve as legitimate reasons to discredit the testimony of a third party 28 when those reasons are supported by substantial evidence and when they (Mem. Supp. Compl. at 12). (AR It would be improper for the ALJ Regennitter v. However, bias and financial motive may 27 1 are not the sole reason for rejecting the lay witness testimony. Greger 2 v. Barnhart, 464 F.3d 969, 972 (9th Cir. 2006). 3 reason may function as support for the ALJ's rejection of Ms. Quinn's 4 testimony, when considered with all of the record evidence. In this case, the 5 4. 6 Ms. Quinn Is Not A Medical Professional 7 8 The ALJ s fourth reason for discrediting Ms. Quinn s testimony is 9 that she is not a medical professional and as a lay witness, is not 10 competent to make a diagnosis or argue the severity of the claimant s 11 symptoms in relationship to the claimant s ability to work. 12 Plaintiff argues that because lay witnesses testify only to personal 13 knowledge and observations, professional expertise is not required. 14 Mem. Supp. Compl. at 10-11). Though a medical professional s opinion is 15 entitled to greater weight, Plaintiff is correct that this reason would 16 not, 17 considered in light of the record as a whole, the Court finds that the 18 ALJ's rejection of Ms. Quinn's testimony does not require remand. 19 \\ 20 \\ 21 \\ 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ by itself, discredit Ms. Quinn s 28 testimony. (AR 466). However, when 1 VII. 2 CONCLUSION 3 4 Consistent with the foregoing, IT IS ORDERED that: Judgment be 5 entered AFFIRMING the decision of the Commissioner and dismissing this 6 action with prejudice. 7 Court serve copies of this Order and the Judgment on counsel for both 8 parties. IT IS FURTHER ORDERED that the Clerk of the 9 10 11 12 13 DATED: July 18, 2012. /S/ ______________________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29
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