Brenda Gail Cole v. Michael J. Astrue, No. 5:2012cv00800 - Document 24 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Sheri Pym: (see document image for further details). IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits, and dismissing the complaint with prejudice. (ad)
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O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 BRENDA GAIL COLE, 12 13 14 15 16 17 18 ) ) Plaintiff, ) ) v. ) ) ) CAROLYN W. COLVIN, ) Acting Commissioner of Social Security ) Administration, ) ) Defendant. ) ) ) Case No. ED CV 12-800-SP MEMORANDUM OPINION AND ORDER 19 I. 20 INTRODUCTION 21 On May 31, 2012, plaintiff Brenda Gail Cole filed a complaint against 22 defendant, the Commissioner of the Social Security Administration 23 ( Commissioner ), seeking a review of a denial of supplemental security income 24 ( SSI ). On June 29, 2012, plaintiff filed an amended complaint. Both plaintiff 25 and defendant have consented to proceed for all purposes before the assigned 26 Magistrate Judge pursuant to 28 U.S.C. § 636(c). The court deems the matter 27 suitable for adjudication without oral argument. 28 1 1 Plaintiff presents two issues for decision: (1) whether the Administrative 2 Law Judge ( ALJ ) properly discounted plaintiff s subjective complaints; and 3 (2) whether the ALJ properly discounted the testimony of a third-party witness 4 regarding plaintiff s limitations. Memorandum in Support of Plaintiff s Complaint 5 ( Pl. s Mem. ) at 4-12; Memorandum in Support of Defendant s Answer ( Def. s 6 Mem. ) at 2-6. 7 Having carefully studied, inter alia, the parties s moving papers, the 8 Administrative Record ( AR ), and the decision of the ALJ, the court concludes 9 that, as detailed herein, the ALJ properly discounted plaintiff s and the lay 10 witness s credibility. Consequently, this court affirms the decision of the 11 Commissioner denying benefits. 12 II. 13 FACTUAL AND PROCEDURAL BACKGROUND 14 Plaintiff, who was forty-nine years old on the date of her July 19, 2010 15 administrative hearing, has a ninth grade education. AR at 29, 127, 132. She has 16 no past relevant work experience. Id. at 29. 17 On December 22, 2008, plaintiff filed an application for SSI, alleging that 18 she has been disabled since March 1, 2003, due to diabetes and back problems. Id. 19 at 127. The Commissioner denied plaintiff s application initially and upon 20 reconsideration, after which plaintiff filed a request for a hearing. Id. at 24, 55-61, 21 71. 22 On July 19, 2010, plaintiff, represented by counsel, appeared and testified at 23 a hearing before the ALJ. Id. at 35-51. Corinne Porter, a vocational expert 24 ( VE ), also testified at the hearing. Id. at 51-54. On September 2, 2010, the ALJ 25 denied plaintiff s claim for benefits. Id. at 24-31. 26 Applying the well-known five-step sequential evaluation process, the ALJ 27 28 2 1 found, at step one, that plaintiff had not engaged in substantial gainful activity 2 since December 22, 2008, the application date. Id. at 26. 3 At step two, the ALJ found that plaintiff suffered from the following severe 4 impairments: insulin-dependent diabetes mellitus with diabetic neuropathy, treated 5 hypertension, and bipolar disorder. Id. 6 At step three, the ALJ found that plaintiff s impairments, whether 7 individually or in combination, did not meet or medically equal one of the listed 8 impairments set forth in 20 C.F.R. part 404, Subpart P, Appendix 1 (the 9 Listings ). Id. at 26-28. The ALJ then assessed plaintiff s residual functional capacity ( RFC ),1 and 10 11 determined that she had the RFC to perform medium work, with the limitations 12 that plaintiff can stand or walk six hours in an eight-hour workday with 13 customary breaks, sit without restriction except for customary breaks, [and] 14 occasionally walk on uneven terrain, climb ladders, or work at heights . . . . Id. at 15 28. The ALJ found no restriction on bending, crouching, kneeling, crawling, and 16 stooping, and further found plaintiff can perform simple, non-detailed tasks in a 17 non-public work setting. Id. The ALJ found, at step four, that plaintiff has no past relevant work. Id. at 18 19 29. 20 At step five, the ALJ found, after considering plaintiff s age, education, 21 work experience, and RFC, that there were jobs that existed in significant numbers 22 in the national economy that plaintiff could perform, including hand packager, 23 24 1 Residual functional capacity is what a claimant can do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 26 1155-56 nn.5-7 (9th Cir. 1989). Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ 27 assesses the claimant s residual functional capacity. Massachi v. Astrue, 486 28 F.3d 1149, 1151 n.2 (9th Cir. 2007). 3 1 cleaner, and laundry worker. Id. at 30. Consequently, the ALJ concluded that 2 plaintiff did not suffer from a disability as defined by the Social Security Act 3 ( SSA ). Id. 4 Plaintiff filed a timely request for review of the ALJ s decision, which was 5 denied by the Appeals Council. Id. at 6-11. The ALJ s decision stands as the final 6 decision of the Commissioner. 7 III. 8 STANDARD OF REVIEW 9 This court is empowered to review decisions by the Commissioner to deny 10 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 11 Administration must be upheld if they are free of legal error and supported by 12 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 13 (as amended). But if the court determines that the ALJ s findings are based on 14 legal error or are not supported by substantial evidence in the record, the court 15 may reject the findings and set aside the decision to deny benefits. Aukland v. 16 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 17 1144, 1147 (9th Cir. 2001). 18 Substantial evidence is more than a mere scintilla, but less than a 19 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such 20 relevant evidence which a reasonable person might accept as adequate to support 21 a conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 22 F.3d at 459. To determine whether substantial evidence supports the ALJ s 23 finding, the reviewing court must review the administrative record as a whole, 24 weighing both the evidence that supports and the evidence that detracts from the 25 ALJ s conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be 26 affirmed simply by isolating a specific quantum of supporting evidence. 27 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 28 4 1 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 2 the ALJ s decision, the reviewing court may not substitute its judgment for that 3 of the ALJ. Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 4 1992)). 5 IV. 6 DISCUSSION 7 A. The ALJ Gave Clear and Convincing Reasons for Discounting 8 Plaintiff s Testimony 9 Plaintiff complains that the ALJ failed to provide clear and convincing 10 reasons to reject her testimony regarding her excess pain. Pl. s Mem. at 4-9. The 11 court disagrees. 12 The ALJ must make specific credibility findings, supported by the record. 13 Social Security Ruling ( SSR ) 96-7p.2 To determine whether testimony 14 concerning symptoms is credible, the ALJ engages in a two-step analysis. 15 Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, the ALJ 16 must determine whether a claimant produced objective medical evidence of an 17 underlying impairment, which could reasonably be expected to produce the pain 18 or other symptoms alleged. Id. at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 19 341, 344 (9th Cir. 1991) (en banc)). Second, if there is no evidence of 20 malingering, an ALJ can reject the claimant s testimony about the severity of her 21 symptoms only by offering specific, clear and convincing reasons for doing so. 22 Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Benton v. Barnhart, 331 23 24 25 26 27 28 2 The Commissioner issues Social Security Rulings to clarify the Act s implementing regulations and the agency s policies. SSRs are binding on all components of the SSA. SSRs do not have the force of law. However, because they represent the Commissioner s interpretation of the agency s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations. Holohan v. Massanari, 246 F.3d 1195, 1203 n.1 (9th Cir. 2001) (internal citations omitted). 5 1 F.3d 1030, 1040 (9th Cir. 2003). The ALJ may consider several factors in 2 weighing a claimant s credibility, including: (1) ordinary techniques of credibility 3 evaluation such as a claimant s reputation for lying; (2) the failure to seek 4 treatment or follow a prescribed course of treatment; and (3) a claimant s daily 5 activities. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); Bunnell, 6 947 F.2d at 346-47. 7 Here, at the first step, the ALJ found that plaintiff s medically determinable 8 impairments could reasonably be expected to cause the symptoms alleged. AR at 9 27. At the second step, because the ALJ did not find any evidence of malingering, 10 the ALJ was required to provide clear and convincing reasons for discounting 11 plaintiff s credibility. The ALJ provided two reasons for discounting plaintiff s 12 credibility: (1) plaintiff lacks objective medical evidence to substantiate her 13 claims and the available objective medical evidence contradicts her claims; and 14 (2) plaintiff s treatment history does not support her claims. Id. at 27-29. 15 1. The ALJ Gave a Clear and Convincing Reason When He 16 Discounted Plaintiff s Credibility Based on Lack of Objective 17 Evidence Supporting Plaintiff s Claims 18 The first ground provided by the ALJ for discounting plaintiff s credibility 19 was the lack of objective medical evidence to substantiate plaintiff s claims. AR 20 27-27. An ALJ may not reject a claimant s subjective complaints based solely on 21 a lack of objective medical evidence to fully corroborate the alleged severity of 22 pain, but it may be one factor used to evaluate credibility. Bunnell, 947 F.2d at 23 345; see also Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001). 24 Here, plaintiff claims the record contains objective evidence that supports 25 her claims of debilitating back pain, leg and foot problems caused by diabetes, and 26 depression and anxiety. Pl. s Mem. at 4-9. She points to places in the record that 27 indicate the loss of sensation to plaintiff s legs and feet (AR at 193, 298, 335-36), 28 6 1 diabetic muscular infarction with neuropathy and lower back pain (id. at 193), 2 scoliosis in the lumbar region (id. at 339, 409), prescriptions for medications for 3 back pain (id. at 197, 296), fatigue with low hematocrit rates (id. at 194-97, 212, 4 227, 300, 311, 322, 346, 376, 403, 420), slowed mentation and depression (id. at 5 196-97), suicidal ideation (id. at 217-18, 222), bipolar disorder with psychosis (id. 6 at 244), and global assessment function ( GAF ) scores of 45, 50, and 48 in July 7 2008, January 2009, and January 2011, respectively (id. at 244, 429). See Pl. s 8 Mem. at 6-9. Thus, plaintiff asserts the ALJ improperly evaluated the plaintiff s 9 pain testimony and the record as a whole in discounting her credibility. See id. 10 In his opinion, the ALJ noted the impairments identified by plaintiff in her 11 briefing and acknowledged that plaintiff has the severe impairments of insulin 12 dependent diabetes with diabetic neuropathy, hypertension, and bipolar disorder, 13 but determined, relying on the conclusions of examining physicians, that the 14 record does not support the claimed intensity, persistence and limiting effects of 15 the symptoms of these impairments. AR at 26-29. The ALJ found that despite 16 plaintiff s ongoing diabetic condition, there was no indication of problems with 17 her diabetes other than persistent elevation of blood sugar levels and a slightly 18 elevated glycolated hemoglobin level. Id. at 26; see id. at 310-336, 344. 19 Similarly, while the ALJ did find evidence of impairments in the lumbar region, 20 the ALJ found no physical examination findings in plaintiff s most recent 21 treating record from May 2010 to support her claims. Id. at 26; see id. at 339. 22 And although the ALJ noted use of plaintiff s pain medication, the ALJ found no 23 weakness, imbalance, or disturbance of gait. Id. at 29. As for plaintiff s mental 24 condition, the ALJ found that despite the GAF of 42 in January 2007, plaintiff s 25 formal mental status examination was essentially negative. Id. at 27; see id. at 26 255-58. The ALJ noted also that [t]here is no treating source statement 27 suggesting that [plaintiff] is unable to work because of her mental impairment or 28 7 1 was unable to work for any significant period of time . . . because of her mental 2 impairment. Id. at 27. 3 In addition, the ALJ found affirmative medical evidence discounting 4 plaintiff s claims in the findings of Kristof Siciarz, M.D., a consultative examining 5 physician, who conducted an internal medicine examination on plaintiff and made 6 a functional assessment in March 2009, and in the findings of D.R. Conte, M.D., a 7 state agency psychiatric consultant, who conducted psychiatric reviews of 8 plaintiff. Id. at 27, 29. Dr. Siciarz found that plaintiff s back did not have any 9 abnormalities, palpations did not elicit pain complaints, and a straight-leg raising 10 test returned negative results. Id. at 298. In addition, Dr. Siciarz observed no 11 evidence of deformity or swelling of any joint and normal ranges of motion for 12 plaintiff s arms and legs. Id. As for plaintiff s mental health condition, Dr. Conte 13 concluded that plaintiff s alleged severity [was] not fully supported and that the 14 diagnosis of bipolar disorder was not fully credible in view of [plaintiff s] long 15 term drug use. Id. at 288. The ALJ relied on these findings by Dr. Siciarcz and 16 Dr. Conte, as well as lack of findings that support plaintiff s claims, in discrediting 17 plaintiff s complaints of pain, anxiety, and depression. Id. at 27, 29. 18 The court finds the ALJ, after acknowledging the medical evidence for the 19 existence of plaintiff s impairments, properly concluded that plaintiff s claims 20 regarding the intensity, persistence and limiting effects of her impairments lack 21 support from objective medical evidence. This was a clear and convincing reason 22 for discounting plaintiff s credibility. See AR at 23, 24-28; see also Andrews v. 23 Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (a consultative examiner s opinions, 24 if supported by clinical tests and observations upon examination, are substantial 25 medical evidence and may be relied upon by the ALJ in order to determine the 26 claimant s RFC). 27 28 8 1 2. The ALJ Gave a Clear and Convincing Reason When He 2 Discounted Plaintiff s Credibility Based on Failure to Seek 3 Regular Treatment 4 The ALJ s second ground for the adverse credibility finding failure to 5 seek regular treatment was similarly clear and convincing. See AR at 27, 29; 6 Tommasetti, 533 F.3d at 1039 (failure to follow a prescribed course of treatment 7 weighs against a claimant s credibility); Burch v. Barnhart, 400 F.3d 676, 8 680-81 (9th Cir. 2005) (the ALJ may properly rely on failure to seek treatment to 9 discredit plaintiff s subjective complaints); Orn v. Astrue, 495 F.3d 625, 638 (9th 10 Cir. 2007) (noting that a failure to seek treatment may be the basis for an adverse 11 credibility finding unless there is a showing of a good reason for the failure); 12 Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) ( [E]vidence of conservative 13 treatment is sufficient to discount a claimant s testimony regarding severity of an 14 impairment. ). 15 In his opinion, the ALJ noted several gaps in plaintiff s treatment as an 16 indication that her symptoms were not disabling. AR at 27, 29. Plaintiff testified 17 at the July 19, 2010 administrative hearing that she had no feeling whatsoever in 18 her feet, but admitted that she went nearly a year without treatment or medical 19 examination. Id. at 46-47; see id. at 29. Similarly, as the ALJ noted, plaintiff 20 alleged psychological problems of anger, aggravation, and frustration, but 21 admitted that her most recent mental health treatment was in October 2009, nine 22 months before the administrative hearing. Id. at 27, 42, 49. The ALJ further noted 23 that plaintiff had no mental health treatment records since June 2009. Id. at 27; 24 see id. at 360. 25 In her briefing, plaintiff attributes the inconsistency in seeking treatment 26 and the attendant sparseness of treatment records to her inability to afford care. 27 Pl. s Mem. at 7. She asserts not having insurance coverage led her to only seek 28 9 1 care when her condition was critical rather than ongoing chronic pain and 2 neuropathy for which there was no treatment other than medication renewals. Id. 3 She argues this inability to pay should not discount her complaints. Id. (quoting 4 Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995) ( [A] disabled claimant 5 cannot be denied benefits for failing to obtain medical treatment that would 6 ameliorate his condition if he cannot afford that treatment. )). 7 While plaintiff is correct to assert that her indigency or uninsured status 8 cannot be a reason to discredit her credibility, plaintiff does not point to any place 9 in the record where indigency is documented or argued as the reason for her 10 failure to seek treatment. See Pl. s Mem. at 7-9. In fact, nowhere in the record 11 does plaintiff indicate that the reason for the long gaps in treatment was inability 12 to pay and lack of insurance. See AR at 37-54, 126-33, 144-51, 166-73, 178-84. 13 Even if her assertions of inability to pay and buy insurance are true, plaintiff does 14 not explain why she could not continue receiving treatment and checkups at the 15 San Bernardino County Department of Behavioral Health where she received 16 periodic mental care and, in her own words, [s]he was not unfamiliar to them. 17 See Pl. s Mem. at 8-9; AR at 239-77. 18 In reaching his conclusions, the ALJ could not be expected to consider 19 reasons that plaintiff never provided. Based on the evidence available to him in 20 the record, the ALJ made a reasonable decision in concluding that the long gaps 21 between treatments and follow-ups with physicians seriously undermined her 22 claims that her symptoms were disabling. AR at 27, 29. Plaintiff s failure to seek 23 regular treatment, which the ALJ identified in his opinion, is another clear and 24 convincing reason for discounting plaintiff s claims. See Tommasetti, 533 F.3d at 25 1039; Burch, 400 F.3d at 680-81; Orn, 495 F.3d at 638; Parra, 481 F.3d at 26 750-51. 27 28 10 1 B. The ALJ Properly Rejected Lay Witness Testimony 2 Plaintiff contends that the ALJ erred in rejecting the lay testimony of her 3 sister-in-law, Pamela Stanton. Pl. s Mem. at 9-12. The court disagrees with 4 plaintiff s assertion that the ALJ failed to properly address this lay witness s 5 testimony. 6 [L]ay testimony as to a claimant s symptoms or how an impairment affects 7 ability to work is competent evidence and therefore cannot be disregarded without 8 comment. Stout v. Comm r, 454 F.3d 1050, 1053 (9th Cir. 2006) (internal 9 quotation marks, ellipses, and citation omitted); see Smolen, 80 F.3d at 1288; see 10 also 20 C.F.R. § 404.1513(d)(4) (explaining that Commissioner will consider 11 evidence from non-medical sources, including spouses, parents and other 12 caregivers, siblings, other relatives, friends, neighbors, and clergy, in determining 13 how a claimant s impairments affect his or her ability to work); 20 C.F.R. 14 § 416.913(d)(4) (same). The ALJ may only discount the testimony of lay 15 witnesses by providing specific reasons that are germane to each witness. 16 Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1983); accord Lewis v. Apfel, 236 17 F.3d 503, 511 (9th Cir. 2001) ( Lay testimony as to a claimant s symptoms is 18 competent evidence that an ALJ must take into account, unless he or she expressly 19 determines to disregard such testimony and gives reasons germane to each witness 20 for doing so. ). A lay witness is not disqualified from rendering an opinion on 21 how a plaintiff s condition affects his or her ability to work simply because that 22 witness is not a vocational or medical expert. Bruce v. Astrue, 557 F.3d 1113, 23 1116 (9th Cir. 2009). 24 Here, plaintiff s sister-in-law, Pamela Stanton, completed a Function 25 Report Adult Third Party on February 1, 2009. AR at 152-59. Stanton stated 26 that plaintiff has back pain [that] affects her physical activities, numbness and 27 pain in feet that make her move about as little as possible, blood sugar levels 28 11 1 that go up and down due to diabetes, and depression and bi-polar [disorder]. 2 Id. Stanton also indicated that plaintiff has trouble with lifting, squatting, 3 bending, standing, reaching, walking, sitting, kneeling, stair climbing, seeing, 4 memory, completing tasks, concentration, understanding, and following 5 instructions. Id. at 157. Regarding the ability to walk, Stanton noted plaintiff 6 can go maybe a block before need[ing] to sit down. Id. Stanton also noted 7 plaintiff does not handle stress well at all, becomes agitated [and] confused, and 8 wants to shut down. Id. According to Stanton, whereas plaintiff used to be a 9 very outgoing, social person, she now leads a secluded life in her house. Id. at 10 156-57. She cannot pay attention for long and gets distracted. Id. She does not 11 follow spoken instructions well, requiring frequent reminders. Id. 12 The ALJ did not find Stanton s testimony credible, reasoning that her 13 statements were not supported by plaintiff s medical record. Id. at 27-29. The 14 ALJ opined that Stanton s statements regarding serious problems with memory, 15 concentration, and persistence and problems with anger control were not 16 reflected in the concurrent treating mental health records. Id. at 27. The ALJ 17 opined further that Stanton s testimony about plaintiff s pain and numbness was 18 not supported by the medical record, as the record reflects fair to good control of 19 [plaintiff s] medical problems despite irregular treatment, except during a brief 20 period in 2008 when plaintiff started substance abuse treatment. Id. at 29. 21 Instead, the ALJ observed that Stanton s testimony appeared to be balancing the 22 need to show [plaintiff] as disabled with the need to show that [plaintiff] was able 23 to care for her son . . . . Id. at 29. 24 The court finds the reasons provided by the ALJ in discounting Stanton s 25 testimony were specific and germane to Stanton. See Dodrill, 12 F.3d at 919; 26 Lewis, 236 F.3d at 511. The ALJ found that Stanton s testimony regarding 27 plaintiff s physical and mental limitations conflicted with the objective medical 28 evidence, just as the ALJ had made the same determination regarding plaintiff s 12 1 testimony. This was clearly a germane reason for discounting Stanton s 2 testimony. See Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (citing 3 Lewis, 236 F.3d at 511) (inconsistency with medical evidence is a germane reason 4 for discrediting the testimony of lay witnesses). Accordingly, the ALJ properly 5 rejected Pamela Stanton s lay witness testimony. 6 V. 7 CONCLUSION 8 IT IS THEREFORE ORDERED that Judgment shall be entered 9 AFFIRMING the decision of the Commissioner denying benefits, and dismissing 10 the complaint with prejudice. 11 12 13 DATED: May 16, 2013 14 15 SHERI PYM United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 13
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