Stephena C. Hanuscin v. Michael J. Astrue, No. 2:2009cv08999 - Document 16 (C.D. Cal. 2010)
Court Description: OPINION AND ORDER by Magistrate Judge Rosalyn M. Chapman; IT IS ORDERED that: (1) plaintiffs request for relief is denied; and (2) the Commissioners decision is affirmed, and Judgment shall be entered in favor of defendant. See order for further details. (jy)
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Stephena C. Hanuscin v. Michael J. Astrue Doc. 16 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 STEPHENA C. HANUSCIN, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) No. CV 09-8999-RC OPINION AND ORDER 17 18 Plaintiff Stephena C. Hanuscin filed a complaint on December 11, 19 2009, seeking review of the Commissioner’s decision denying her 20 applications for disability benefits. 21 Commissioner filed an answer to the complaint, and the parties filed a 22 joint stipulation on June 25, 2010. On May 24, 2010, the 23 24 25 BACKGROUND On September 29, 2006, plaintiff, who was born on September 11, 26 1951, applied for disability benefits under Title II of the Social 27 Security Act (“Act”), 42 U.S.C. § 423, and the Supplemental Security 28 Income program (“SSI”) of Title XVI of the Act, claiming an inability Dockets.Justia.com 1 to work since July 6, 2006, due to a bipolar disorder and hepatitis. 2 A.R. 34, 123-31, 153. 3 denied on February 2, 2007, and were denied again on July 12, 2007, 4 following reconsideration. 5 an administrative hearing, which was held before Administrative Law 6 Judge Ariel L. Sotolongo (“the ALJ”) on September 15, 2008, and 7 January 21, 2009. 8 decision finding plaintiff not disabled. 9 appealed this decision to the Appeals Council, which denied review on 10 November 13, 2009. The plaintiff’s applications were initially A.R. 57-67. A.R. 31-52, 68. The plaintiff then requested On April 7, 2009, the ALJ issued a A.R. 12-22. The plaintiff A.R. 1-7. 11 12 DISCUSSION 13 I 14 The Court, pursuant to 42 U.S.C. § 405(g), has the authority to 15 review the Commissioner’s decision denying plaintiff disability 16 benefits to determine if his findings are supported by substantial 17 evidence and whether the Commissioner used the proper legal standards 18 in reaching his decision. 19 Cir. 2009); Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). 20 “In determining whether the Commissioner’s findings are supported by 21 substantial evidence, [this Court] must review the administrative 22 record as a whole, weighing both the evidence that supports and the 23 evidence that detracts from the Commissioner’s conclusion.” 24 v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Holohan v. Massanari, 25 246 F.3d 1195, 1201 (9th Cir. 2001). 26 reasonably support either affirming or reversing the decision, [this 27 Court] may not substitute [its] judgment for that of the 28 Commissioner.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Reddick “Where the evidence can Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007), 2 1 cert. denied, 552 U.S. 1141 (2008); Vasquez, 572 F.3d at 591. 2 3 The claimant is “disabled” for the purpose of receiving benefits 4 under the Act if she is unable to engage in any substantial gainful 5 activity due to an impairment which has lasted, or is expected to 6 last, for a continuous period of at least twelve months. 7 §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). 8 “The claimant bears the burden of establishing a prima facie case of 9 disability.” 42 U.S.C. Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), 10 cert. denied, 517 U.S. 1122 (1996); Smolen v. Chater, 80 F.3d 1273, 11 1289 (9th Cir. 1996). 12 13 The Commissioner has promulgated regulations establishing a five- 14 step sequential evaluation process for the ALJ to follow in a 15 disability case. 16 the ALJ must determine whether the claimant is currently engaged in 17 substantial gainful activity. 18 If not, in the Second Step, the ALJ must determine whether the 19 claimant has a severe impairment or combination of impairments 20 significantly limiting her from performing basic work activities. 21 C.F.R. §§ 404.1520(c), 416.920(c). 22 must determine whether the claimant has an impairment or combination 23 of impairments that meets or equals the requirements of the Listing of 24 Impairments (“Listing”), 20 C.F.R. § 404, Subpart P, App. 1. 25 C.F.R. §§ 404.1520(d), 416.920(d). 26 ALJ must determine whether the claimant has sufficient residual 27 functional capacity despite the impairment or various limitations to 28 perform her past work. 20 C.F.R. §§ 404.1520, 416.920. In the First Step, 20 C.F.R. §§ 404.1520(b), 416.920(b). 20 If so, in the Third Step, the ALJ 20 If not, in the Fourth Step, the 20 C.F.R. §§ 404.1520(f), 416.920(f). 3 If not, 1 in Step Five, the burden shifts to the Commissioner to show the 2 claimant can perform other work that exists in significant numbers in 3 the national economy. 4 Moreover, where there is evidence of a mental impairment that may 5 prevent a claimant from working, the Commissioner has supplemented the 6 five-step sequential evaluation process with additional regulations 7 addressing mental impairments.1 8 Admin., 154 F.3d 913, 914-15 (9th Cir. 1998) (per curiam). 20 C.F.R. §§ 404.1520(g), 416.920(g). Maier v. Comm’r of the Soc. Sec. 9 10 Applying the five-step sequential evaluation process, the ALJ 11 found plaintiff has not engaged in substantial gainful activity since 12 July 6, 2006, the alleged onset date. 13 plaintiff has the following severe impairments: 14 depressive disorder and an alcohol abuse disorder in sustained (Step One). The ALJ then found an unspecified 15 16 1 17 18 19 20 21 22 23 24 25 26 27 28 First, the ALJ must determine the presence or absence of certain medical findings relevant to the ability to work. 20 C.F.R. §§ 404.1520a(b)(1), 416.920a(b)(1). Second, when the claimant establishes these medical findings, the ALJ must rate the degree of functional loss resulting from the impairment by considering four areas of function: (a) activities of daily living; (b) social functioning; (c) concentration, persistence, or pace; and (d) episodes of decompensation. 20 C.F.R. §§ 404.1520a(c)(2-4), 416.920a(c)(2-4). Third, after rating the degree of loss, the ALJ must determine whether the claimant has a severe mental impairment. 20 C.F.R. §§ 404.1520a(d), 416.920a(d). Fourth, when a mental impairment is found to be severe, the ALJ must determine if it meets or equals a Listing. 20 C.F.R. §§ 404.1520a(d)(2), 416.920a(d)(2). Finally, if a Listing is not met, the ALJ must then perform a residual functional capacity assessment, and the ALJ’s decision “must incorporate the pertinent findings and conclusions” regarding the claimant’s mental impairment, including “a specific finding as to the degree of limitation in each of the functional areas described in [§§ 404.1520a(c)(3), 416.920a(c)(3)].” 20 C.F.R. §§ 404.1520a(d)(3), (e)(2), 416.920a(d)(3), (e)(2). 4 1 remission (Step Two); however, she does not have an impairment or 2 combination of impairments that meets or equals a listed impairment. 3 (Step Three). 4 her past relevant work. 5 plaintiff is able to perform a significant number of jobs in the 6 national economy; therefore, she is not disabled. The ALJ next determined plaintiff is unable to perform (Step Four). Finally, the ALJ concluded (Step Five). 7 8 9 II A claimant’s residual functional capacity (“RFC”) is what she can 10 still do despite her physical, mental, nonexertional, and other 11 limitations. 12 see also Valentine v. Comm’r, Soc. Sec. Admin., 574 F.3d 685, 689 (9th 13 Cir. 2009) (RFC is “a summary of what the claimant is capable of doing 14 (for example, how much weight he can lift).”). 15 plaintiff has the RFC “to perform a full range of work at all 16 exertional levels but with the following nonexertional limitations: 17 the [plaintiff] is limited to simple, repetitive work that does not 18 require sustained concentration for detailed or complex work; [sic] or 19 require rapid production or rigid quotas.” 20 plaintiff contends the ALJ’s Step Five determination is not supported 21 by substantial evidence because the ALJ improperly found plaintiff was 22 not credible. Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); Here, the ALJ found A.R. 18. However, the The plaintiff is not correct. 23 24 The plaintiff testified at the administrative hearing that she 25 cannot work because she gets confused, is “lost,” cannot eat, has 26 attempted suicide more than once – most recently in October or 27 November 2008 – and has “so many days [when she] can’t get up.” 28 35-39, 41. A.R. The plaintiff stated that in December 2008, she was in bed 5 1 for 10 days straight and could not make herself get out of bed. A.R. 2 39-41. 3 a.m., but wakes up 2-3 times a night, and she cannot predict from one 4 day to the next how she is going to feel. She also said she goes to bed at 6:00 p.m. and gets up at 6:00 A.R. 39, 42, 45. 5 6 Once a claimant has presented objective evidence that she suffers 7 from an impairment that could cause pain or other nonexertional 8 limitations,2 the ALJ may not discredit the claimant’s testimony 9 “solely because the degree of pain alleged by the claimant is not 10 supported by objective medical evidence.” Bunnell v. Sullivan, 947 11 F.2d 341, 347 (9th Cir. 1991) (en banc); Moisa v. Barnhart, 367 F.3d 12 882, 885 (9th Cir. 2004). 13 subjective complaints are not credible, he “‘must provide specific, 14 cogent reasons for the disbelief.’” 15 972 (9th Cir. 2006) (citations omitted); Orn v. Astrue, 495 F.3d 625, 16 635 (9th Cir. 2007). 17 establishing an objective basis for some degree of pain and related 18 symptoms, and no evidence affirmatively suggesting that the claimant 19 is malingering, the Commissioner’s reasons for rejecting the 20 claimant's testimony must be “clear and convincing.” 21 of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Vasquez, 22 572 F.3d at 591. Thus, if the ALJ finds the claimant’s Greger v. Barnhart, 464 F.3d 968, Furthermore, if there is medical evidence Morgan v. Comm’r 23 24 Initially, in assessing whether the ALJ provided clear and 25 26 27 28 2 “While most cases discuss excess pain testimony rather than excess symptom testimony, rules developed to assure proper consideration of excess pain apply equally to other medically related symptoms.” Swenson v. Sullivan, 876 F.2d 683, 687-88 (9th Cir. 1989). 6 1 convincing reasons to support the adverse credibility determination, 2 the Court reviews the entirety of the ALJ’s opinion, not simply the 3 specific reasons the plaintiff discusses in the joint stipulation. 4 Cf. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (“The 5 ALJ’s findings will be upheld ‘if supported by inferences reasonably 6 drawn from the record. . . .’” (quoting Batson v. Comm’r of Soc. Sec. 7 Admin., 359 F.3d 1190, 1193 (9th Cir. 2004))); Magallanes v. Bowen, 8 881 F.2d 747, 755 (9th Cir. 1989) (Court can “draw[] specific and 9 legitimate inferences from the ALJ’s opinion.”). Here, although the 10 ALJ found plaintiff was “generally credible[,]” the ALJ concluded that 11 plaintiff’s “testimony that she cannot work because she gets 12 ‘confused’ and has long periods during which she cannot leave her bed 13 [wa]s incredible” for several reasons, including that it was 14 contradicted by the medical records, showing she was stable on 15 medication and had no significant side effects.3 16 finding is supported by substantial evidence in the record, A.R. 355, 17 363-64, 402, 413; thus, this reason “is a sufficient basis for 18 rejecting the claimant’s subjective testimony.” 19 Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008); see also Turner 20 v. Comm’r, Soc. Sec., 613 F.3d 1217, 1224-25 (9th Cir. 2010) (ALJ 21 properly found claimant’s not credible by referencing medical records 22 refuting claimant’s testimony). 23 // A.R. 19-20. This Carmickle v. Comm’r, 24 25 26 27 28 3 The medical records show plaintiff complained about an adverse reaction to Paxil on one occasion, and the medication was quickly changed. A.R. 223, 232, 388-89. She also initially complained that an increased dose of Seroquel made her feel too sedated and lethargic during the day, A.R. 223, 227-28, but later reported no side effects. A.R. 363-65, 367-69. 7 Additionally, the ALJ found plaintiff’s testimony was 1 2 inconsistent with other statements by plaintiff and information in the 3 medical record. 4 although plaintiff claimed to be “stand offish,” she was cooperative 5 and interacted appropriately with examining psychologist Rosa Colonna, 6 Ph.D., and her clinicians at the Hollywood Mental Health Center. 7 19, 219, 221, 257, 355. 8 unable to work, no physician has so opined; to the contrary, as the 9 ALJ noted, Dr. Colonna and nonexamining psychiatrist Lydia Mallare, A.R. 19-20. For instance, the ALJ found that A.R. Moreover, although plaintiff claims she is 10 M.D., opined plaintiff can perform simple repetitive tasks. A.R. 20, 11 221, 310. 12 determination on inconsistent statements by the claimant and the 13 medical record. 14 see also Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1995) 15 (substantial evidence supports finding claimant could do narrow range 16 of medium work where no examining physician found claimant was totally 17 disabled). 18 work, she “admitted to her treating clinicians at Gateway that she can 19 perform ‘non-stressful work.’” 20 rely on inconsistencies in a claimant’s statements in determining the 21 claimant is not a credible witness. 22 v. Barnhart, 340 F.3d 871, 873-74 (9th Cir. 2003). An ALJ can properly base an adverse credibility Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005); Similarly, although plaintiff claims she is unable to A.R. 20, 374. An ALJ may properly Batson, 359 F.3d at 1196; Connett 23 24 Finally, the ALJ found plaintiff was not credible because she 25 “was able to work for many years with depression and did not seek 26 psychiatric treatment or allege disability until she lost her job. 27 . . .” 28 // A.R. 19. This, too, is a proper basis for the ALJ’s adverse 8 1 credibility determination.4 2 828 (9th Cir. 2001) (ALJ provided specific, cogent reasons for 3 determining claimant is not credible witness, including that claimant 4 informed physician he left work because he was laid off, not because 5 he was injured); Copeland v. Bowen, 861 F.2d 536, 542 (9th Cir. 1988) 6 (ALJ properly concluded claimant was not credible witness based, in 7 part, on “the fact that [the claimant] left work because he was laid 8 off” rather than because of his condition.). 9 gave specific, clear and convincing reasons for discounting 10 // 12 // 13 Accordingly, “[t]he ALJ // 11 See Bruton v. Massanari, 268 F.3d 824, // 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Although the ALJ found plaintiff’s complaints of confusion and an inability to get out of bed for long periods are not supported by “the medical evidence of record[,]” A.R. 20, this is not so. See A.R. 226-27, 230, 240, 355, 374. Moreover, the ALJ’s reliance on plaintiff’s daily activities to reject her testimony, see A.R. 20, is not well taken since the ALJ failed to explain how plaintiff’s daily activities are inconsistent with her mental limitations, especially since plaintiff explained the shopping and household chores she performs are very limited, A.R. 40, 164-65, 190-91, and her reading and similar activities take only a few minutes a day “because she lacks concentration and always falls asleep.” A.R. 166, 192. In any event, the ability to perform such activities does not translate into an ability to work. See Orn, 495 F.3d at 639 (“[R]eading, watching television and coloring in coloring books are activities that are so undemanding that they cannot be said to bear a meaningful relationship to the activities of the workplace.”). Therefore, these reasons are not proper reasons for rejecting plaintiff’s testimony. Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001). Nevertheless, “the ALJ’s decision finding [plaintiff] less than fully credible is valid[,]” Carmickle, 533 F.3d at 1163, in light of the clear and convincing reasons the ALJ gave, which are discussed above. 9 1 [plaintiff’s] testimony.” Thomas, 278 F.3d at 959; Celaya v. Halter, 2 332 F.3d 1177, 1181 (9th Cir. 2003). 3 4 ORDER 5 IT IS ORDERED that: (1) plaintiff’s request for relief is denied; 6 and (2) the Commissioner’s decision is affirmed, and Judgment shall be 7 entered in favor of defendant. 8 9 DATE: November 17, 2010 10 11 /S/ ROSALYN M. CHAPMAN ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE R&R-MDO\09-8999.mdo 11/17/10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
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