Susan Ackley v. Michael J. Astrue, No. 5:2011cv01945 - Document 14 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge John E. McDermott, IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is AFFIRMED and this case dismissed with prejudice. LET JUDGMENT BE ENTERED ACCORDINGLY. (SEE OPINION FOR FURTHER DETAILS) (lmh)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 SUSAN ACKLEY, 12 Plaintiff, 13 v. 14 MICHAEL J. ASTRUE, 15 Commissioner of Social Security, Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 11-1945-JEM MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY 17 PROCEEDINGS 18 19 On December 16, 2011, Susan Ackley ( Plaintiff ) filed a Complaint seeking review of 20 the decision by the Commissioner of the Social Security Administration ( Commissioner ) 21 denying her applications for Social Security Disability Insurance benefits and Supplemental 22 Security Income ( SSI ) disability benefits. The Commissioner filed an Answer on March 19, 23 2012. On May 29, 2012, the parties filed a Joint Stipulation ( JS ). The matter is now ready 24 for decision. 25 Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before the 26 undersigned Magistrate Judge. After reviewing the pleadings, transcripts, and administrative 27 record ( AR ), the Court concludes that the Commissioner s decision should be affirmed and 28 the case dismissed with prejudice. BACKGROUND 1 2 Plaintiff was born on August 5, 1966, and was 41 years old on her alleged disability 3 onset date of January 1, 2008. (AR 124.) Plaintiff filed applications for Social Security 4 Disability Insurance benefits and SSI disability benefits on February 5, 2009 (AR 117-31), 5 and claims she is disabled due to bipolar disorder, depression, anxiety, seizures, and pain in 6 her hands, among other things. (AR 141.) Plaintiff has not engaged in substantial gainful 7 activity since her alleged onset date of January 1, 2008. (AR 12.) 8 Plaintiff s claim was denied initially on June 3, 2009 (AR 58-63), and upon 9 reconsideration on August 4, 2009. (AR 67-72.) Plaintiff then filed a timely request for 10 hearing on August 25, 2009. (AR 74.) Plaintiff appeared with counsel and testified at a 11 hearing held on August 16, 2010, before Administrative Law Judge ( ALJ ) Sharilyn Hopson. 12 (AR 22-40.) The ALJ issued a decision denying benefits on December 2, 2010. (AR 10-18.) 13 The Appeals Council denied review on October 26, 2011. (AR 1-3.) 14 15 DISPUTED ISSUE As reflected in the Joint Stipulation, there is one disputed issue: whether the ALJ 16 properly assessed Plaintiff s credibility. 17 18 STANDARD OF REVIEW Under 42 U.S.C. § 405(g), this Court reviews the ALJ s decision to determine whether 19 the ALJ s findings are supported by substantial evidence and free of legal error. Smolen v. 20 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); see also DeLorme v. Sullivan, 924 F.2d 841, 846 21 (9th Cir. 1991) (ALJ s disability determination must be supported by substantial evidence and 22 based on the proper legal standards). 23 Substantial evidence means more than a mere scintilla, but less than a 24 preponderance. Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting Richardson 25 v. Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is such relevant evidence as a 26 reasonable mind might accept as adequate to support a conclusion. Richardson, 402 U.S. 27 at 401 (internal quotation marks and citation omitted). 28 2 1 This Court must review the record as a whole and consider adverse as well as 2 supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). 3 Where evidence is susceptible to more than one rational interpretation, the ALJ s decision 4 must be upheld. Morgan v. Comm r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 5 1999). However, a reviewing court must consider the entire record as a whole and may not 6 affirm simply by isolating a specific quantum of supporting evidence. Robbins, 466 F.3d at 7 882 (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)); see also Orn v. Astrue, 8 495 F.3d 625, 630 (9th Cir. 2007). 9 10 THE SEQUENTIAL EVALUATION The Social Security Act defines disability as the inability to engage in any substantial 11 gainful activity by reason of any medically determinable physical or mental impairment which 12 can be expected to result in death or . . . can be expected to last for a continuous period of 13 not less than 12 months. 42 U.S.C. §§ 423(d) (1)(A), 1382c(a)(3)(A). The Commissioner 14 has established a five-step sequential process to determine whether a claimant is disabled. 15 20 C.F.R. §§ 404.1520, 416.920. 16 The first step is to determine whether the claimant is presently engaging in substantial 17 gainful activity. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). If the claimant is 18 engaging in substantial gainful activity, disability benefits will be denied. Bowen v. Yuckert, 19 482 U.S. 137, 140 (1987). Second, the ALJ must determine whether the claimant has a 20 severe impairment or combination of impairments. Parra, 481 F.3d at 746. An impairment is 21 not severe if it does not significantly limit the claimant s ability to work. Smolen, 80 F.3d at 22 1290. Third, the ALJ must determine whether the impairment is listed, or equivalent to an 23 impairment listed, in the regulations at 20 C.F.R. Part 404, Subpart P, Appendix I. Id. If the 24 impediment meets or equals one of the listed impairments, the claimant is presumptively 25 disabled. Bowen v. Yuckert, 482 U.S. at 141. Fourth, the ALJ must determine whether the 26 impairment prevents the claimant from doing past relevant work. Pinto v. Massanari, 249 27 F.3d 840, 844-45 (9th Cir. 2001). Before making the step four determination, the ALJ first 28 3 1 must determine the claimant s residual functional capacity ( RFC ).1 20 C.F.R. § 416.920(e). 2 The RFC must account for all of the claimant s impairments, including those that are not 3 severe. 20 C.F.R. §§ 416.920(e), 416.945(a)(2); Social Security Ruling ( SSR ) 96-8p. If the 4 claimant cannot perform his or her past relevant work or has no past relevant work, the ALJ 5 proceeds to the fifth step and must determine whether the impairment prevents the claimant 6 from performing any other substantial gainful activity. Moore v. Apfel, 216 F.3d 864, 869 (9th 7 Cir. 2000). The claimant bears the burden of proving steps one through four, consistent with the 8 9 general rule that at all times the burden is on the claimant to establish his or her entitlement 10 to benefits. Parra, 481 F.3d at 746. Once this prima facie case is established by the 11 claimant, the burden shifts to the Commissioner to show that the claimant may perform other 12 gainful activity. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). To support a 13 finding that a claimant is not disabled at step five, the Commissioner must provide evidence 14 demonstrating that other work exists in significant numbers in the national economy that the 15 claimant can do, given his or her RFC, age, education, and work experience. 20 C.F.R. § 16 416.912(g). If the Commissioner cannot meet this burden, then the claimant is disabled and 17 entitled to benefits. Id. THE ALJ S DECISION 18 In this case, the ALJ determined at step one that Plaintiff has not engaged in 19 20 substantial gainful activity since her alleged disability onset date of January 1, 2008. (AR 21 12.) 22 At step two, the ALJ determined that Plaintiff suffers from the following severe 23 impairments: seizure disorder, affective mood disorder, methamphetamine dependence, 24 25 26 27 1 Residual functional capacity ( RFC ) is what one can still do despite [his or her] limitations and represents an assessment based on all the relevant evidence. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). 28 4 1 joint pain in the hands and wrists, calix formations on the inner parts of the palms, and 2 asthma. (AR 12.) 3 At step three, the ALJ found that Plaintiff does not have an impairment or combination 4 of impairments that meets or medically equals one of the listed impairments. (AR 12-13.) 5 The ALJ found that Plaintiff has the RFC to lift and/or carry 50 pounds occasionally 6 and 25 pounds frequently; stand and/or walk six hours out of an eight-hour day; no sitting 7 limitations; cannot climb ladders, ramps, or scaffolds; cannot work at heights or balance; no 8 significant exposure to excessive concentration of pulmonary irritants such as smoke, dust, 9 and fumes; should work in an air-conditioned environment; no work requiring agility; no 10 highly dexterous work, but can perform fine and gross manipulation bilaterally on a frequent 11 basis; and limited to nonpublic simple repetitive tasks. (AR 13-14.) In determining this 12 RFC, the ALJ also made an adverse credibility determination. (AR 15.) 13 At step four, the ALJ determined that Plaintiff has no past relevant work. (AR 16.) 14 At step five, the ALJ determined that Plaintiff could perform the occupations of hand 15 packager, floor waxer, and day worker housecleaner. (AR 17.) The ALJ therefore 16 concluded that Plaintiff is not disabled. (AR 18.) 17 DISCUSSION 18 The ALJ Properly Discounted Plaintiff s Credibility 19 Plaintiff argues that the ALJ failed to provide legally sufficient reasons for discounting 20 the credibility of her subjective complaints. The Court disagrees. 21 A. Relevant Law 22 The test for deciding whether to accept a claimant s subjective symptom testimony 23 turns on whether the claimant produces medical evidence of an impairment that reasonably 24 could be expected to produce the pain or other symptoms alleged. Bunnell v. Sullivan, 947 25 F.2d 341, 346 (9th Cir. 1991); see also Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998); 26 Smolen, 80 F.3d at 1281-82 & n.2. The Commissioner may not discredit a claimant s 27 testimony on the severity of symptoms merely because they are unsupported by objective 28 5 1 medical evidence. Reddick, 157 F.3d at 722; Bunnell, 947 F.2d at 343, 345. If the ALJ finds 2 the claimant s symptom testimony not credible, the ALJ must specifically make findings 3 which support this conclusion. Bunnell, 947 F.2d at 345. These findings must be 4 sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit 5 [the] claimant s testimony. Thomas, 278 F.3d at 958; see also Rollins v. Massanari, 261 6 F.3d 853, 856-57 (9th Cir. 2001); Bunnell, 947 F.2d at 345-46. Unless there is evidence of 7 malingering, the ALJ can reject the claimant s testimony about the severity of her symptoms 8 only by offering specific, clear and convincing reasons for doing so. Smolen, 80 F.3d at 9 1283-84; see also Reddick, 157 F.3d at 722. The ALJ must identify what testimony is not 10 credible and what evidence discredits the testimony. Reddick, 157 F.3d at 722; Smolen, 80 11 F.3d at 1284. 12 B. Analysis 13 In this case, the ALJ found that Plaintiff s medically determinable impairments could 14 reasonably be expected to cause the alleged symptoms; however, [Plaintiff s] statements 15 concerning the intensity, persistence and limiting effects of these symptoms are not credible 16 to the extent they are inconsistent with the above [RFC] assessment. (AR 15.) Because 17 the ALJ did not find that Plaintiff was malingering, she was required to provide clear and 18 convincing reasons for discounting her credibility. Although the ALJ could have been more 19 explicit about the reasons she discounted Plaintiff s credibility, the Court finds that she 20 provided legally sufficient reasons to support her assessment of Plaintiff s credibility. 21 First, a reading of the ALJ s decision makes clear that she found that the objective 22 medical evidence did not support Plaintiff s allegations of disabling symptoms. (AR 15-16.) 23 An ALJ may consider whether there is a lack of medical evidence to corroborate a claimant s 24 symptoms as long as it is not the only reason for discounting a claimant s credibility. Burch 25 v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005). The ALJ noted that examining physician 26 Dr. To found that Plaintiff could perform medium work provided she have seizure 27 precautions, manipulative activities limited to a frequent basis, and restriction from agility 28 6 1 activities. (AR 15 (citing AR 249).) She also noted that the evidence included records of 2 acute episodes of body aches, abdominal pain, asthma exacerbation, and probable 3 streptococcal pharyngitis rather than longstanding, chronic problems. (AR 16.) The ALJ 4 also noted that examining psychiatrist Dr. Gessesse found that Plaintiff had no significant 5 mental work restrictions. (AR 16 (citing AR 243).) In addition, [t]he State agency medical 6 consultants concluded [Plaintiff] had non-severe physical and mental impairments. (AR 16 7 (citing AR 250-70).) 8 Next, the ALJ found that Plaintiff s illicit drug use detracted from her credibility. The 9 ALJ noted that Plaintiff testified she last used methamphetamines two days prior to the 10 hearing and smokes when possible. (AR 14; see AR 29-30.) The ALJ also noted that the 11 examining psychiatrist diagnosed Plaintiff with substance-induced mood disorder and a 12 treating clinician diagnosed Plaintiff with amphetamine dependence. (AR 16 (citing AR 243, 13 284).) Plaintiff told that clinician that she had used methamphetamine and crack ten days 14 before her appointment. (AR 16 (citing AR 280).) The ALJ therefore found that Plaintiff s 15 ongoing illicit drug use . . . without the presence of regular psychiatric treatment impacted 16 the validity of some of the psychiatric findings of record. (AR 16.) The ALJ properly 17 considered Plaintiff s drug use in assessing her credibility. See Edlund v. Massanari, 253 18 F.3d 1152, 1157 (9th Cir. 2001) (holding that evidence of drug-seeking behavior undermines 19 a claimant s credibility); Bunnell, 947 F.2d at 346 ( An adjudicator may also use ordinary 20 techniques of credibility evaluation to test a claimant s credibility. (quoting Fair v. Bowen, 21 885 F.2d 597, 604 n.5 (9th Cir. 1989))). 22 Finally, even though the ALJ discounted Plaintiff s credibility, she made clear that she 23 considered Plaintiff s alleged symptoms and limitations (AR 16), and her decision did not 24 amount to a wholesale rejection of Plaintiff s subjective complaints. For example, the ALJ s 25 finding that Plaintiff was limited to simple, repetitive, nonpublic work reasonably accounted 26 for Plaintiff s testimony that she does not know how to talk to people (AR 33), thinks 27 people talk about [her] and everyone s against [her], and has a hard time focusing, 28 7 1 concentrating, and remembering. (AR 28.) Notably, the ALJ explicitly relied upon Plaintiff s 2 testimony in including these limitations even though the examining psychiatrist concluded 3 [Plaintiff] had no significant mental work restrictions. (AR 16.) Similarly, the ALJ s findings 4 that Plaintiff could not tolerate significant exposure to pulmonary irritants and should work in 5 an air-conditioned environment reasonably accounted for Plaintiff s testimony that she has a 6 hard time breathing due to asthma. (AR 32.) 7 Although the ALJ s assessment of Plaintiff s credibility was not a model of clarity, it 8 was sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily 9 discredit [Plaintiff s] testimony. See Thomas, 278 F.3d at 958. Accordingly, a reversal or 10 remand is not warranted. ORDER 11 12 IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is 13 AFFIRMED and this case dismissed with prejudice. 14 LET JUDGMENT BE ENTERED ACCORDINGLY. 15 16 DATED: June 26, 2012 /s/ John E. McDermott JOHN E. MCDERMOTT UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 8

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