Sharon Massey v. Michael J Astrue, No. 2:2012cv09222 - Document 18 (C.D. Cal. 2013)

Court Description: MEMORANDUM AND OPINION AND ORDER by Magistrate Judge Oswald Parada: Based on the foregoing, IT IS THEREFORE ORDERED, that judgment be entered affirming the decision of the Commissioner of Social Security and dismissing this action with prejudice. (am)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SHARON MASSEY, Plaintiff, 12 13 v. 14 15 CAROLYN W. COLVIN,1 Acting Commissioner of Social Security, 16 Defendant. ) Case No. CV 12-9222-OP ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) 17 18 The Court2 now rules as follows with respect to the disputed issues listed in 3 19 the Joint Stipulation ( JS ). 20 21 1 23 2 25 3 Carolyn W. Colvin, the current Acting Commissioner of Social Security, is 22 hereby substituted as the Defendant herein. See Fed. R. Civ. P. 25(d)(1). Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the 24 United States Magistrate Judge in the current action. (ECF Nos. 11, 12.) As the Court advised the parties in its Case Management Order, the 26 decision in this case is being made on the basis of the pleadings, the Administrative Record and the Joint Stipulation filed by the parties. In accordance with Rule 27 12(c) of the Federal Rules of Civil Procedure, the Court has determined which 28 (continued...) 1 1 I. 2 DISPUTED ISSUES 3 As reflected in the Joint Stipulation, the disputed issues raised by Plaintiff as 4 the grounds for reversal and/or remand are as follows: 5 1) 6 7 Whether the Administrative Law Judge ( ALJ ) properly considered Plaintiff s testimony; and 2) Whether the ALJ properly considered the lay witness testimony. 8 (JS at 4.) 9 II. 10 STANDARD OF REVIEW 11 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s decision 12 to determine whether the Commissioner s findings are supported by substantial 13 evidence and whether the proper legal standards were applied. DeLorme v. 14 Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means more 15 than a mere scintilla but less than a preponderance. Richardson v. Perales, 402 16 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Desrosiers v. Sec y of 17 Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial 18 evidence is such relevant evidence as a reasonable mind might accept as adequate 19 to support a conclusion. Perales, 402 U.S. at 401 (citation omitted). The Court 20 must review the record as a whole and consider adverse as well as supporting 21 evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). Where 22 evidence is susceptible of more than one rational interpretation, the 23 Commissioner s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 24 1452 (9th Cir. 1984). 25 26 3 (...continued) party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g). 28 (ECF No. 4 at 3.) 27 2 1 III. 2 DISCUSSION 3 A. 4 The ALJ s Findings. The ALJ found that Plaintiff has the following severe impairments: obesity, 5 insulin-dependent diabetes mellitus, and high blood pressure. (Administrative 6 Record ( AR ) at 14.) The ALJ concluded that Plaintiff retains the residual 7 functional capacity ( RFC ) to perform a range of light work with the following 8 limitations: occasionally pushing and pulling with the feet; no crawling; 9 occasional climbing of stairs; no working near unprotected heights; no climbing 10 ladders; no working around unusual amounts of dusts, fumes, and gases; no 11 driving long distances; and enduring only occasional temperature changes. (Id. at 12 15.) 13 Relying on the testimony of the vocational expert ( VE ), the ALJ 14 determined that given Plaintiff s age, education, work experience, and RFC, she is 15 capable of performing the requirements of such light occupations as: sorter 16 (Dictionary of Occupational Titles ( DOT ) No. 222.687-014); inspector (DOT 17 No. 529.687-186); and folder (DOT No. 369.687-018). (AR at 18.) Thus, the 18 ALJ determined that Plaintiff has not been under a disability, as defined by the 19 Social Security Act. (Id.) 20 B. 21 The ALJ Properly Evaluated Plaintiff s Credibility. Plaintiff asserts that the ALJ failed to provide clear and convincing reasons 22 for rejecting her subjective complaints. (JS at 5-14, 23.) Specifically, Plaintiff 23 states that the ALJ decision is void of any sufficient rationale at all as to why the 24 ALJ ignored and disregards Ms. Massey s testimony. (Id. at 7.) Plaintiff also 25 contends that the ALJ rejected Plaintiff s testimony using boilerplate language 26 because that testimony is inconsistent with what the ALJ believes it should be, 27 or only because it lacks support in the objective medical evidence. (Id. at 8-9.) 28 Moreover, Plaintiff claims that her attempt to maintain some semblance of 3 1 normalcy in her life in performing minimal activities of daily living does not 2 detract from her credibility as to her overall disability because it does not 3 correspond to an ability to perform work activity. (Id. at 11.) 4 1. 5 An ALJ s assessment of pain severity and claimant credibility is entitled to 6 great weight. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. 7 Heckler, 779 F.2d 528, 531 (9th Cir. 1986). When, as here, an ALJ s disbelief of 8 a claimant s testimony is a critical factor in a decision to deny benefits, the ALJ 9 must make explicit credibility findings. Rashad v. Sullivan, 903 F.2d 1229, 1231 10 (9th Cir. 1990); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981); see also 11 Albalos v. Sullivan, 907 F.2d 871, 874 (9th Cir. 1990) (an implicit finding that 12 claimant was not credible is insufficient). The ALJ must set forth findings 13 sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily 14 discredit claimant s testimony. Thomas, 278 F.3d at 958; Rollins v. Massanari, 15 261 F.3d 853, 856-57 (9th Cir. 2001); Bunnell, 947 F.2d at 345. Legal Standard. 16 Once a claimant has presented medical evidence of an underlying 17 impairment which could reasonably be expected to cause the symptoms alleged, 18 the ALJ may only discredit the claimant s testimony regarding subjective pain by 19 providing specific, clear, and convincing reasons for doing so. Lingenfelter v. 20 Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). An ALJ s credibility finding 21 must be properly supported by the record and sufficiently specific to ensure a 22 reviewing court that the ALJ did not arbitrarily reject a claimant s subjective 23 testimony. Bunnell v. Sullivan, 947 F.2d 341, 345-47 (9th Cir. 1991). 24 An ALJ may properly consider testimony from physicians . . . concerning 25 the nature, severity, and effect of the symptoms of which [claimant] complains, 26 and may properly rely on inconsistencies between claimant s testimony and 27 claimant s conduct and daily activities. See, e.g., Thomas v. Barnhart, 278 F.3d 28 947, 958-59 (9th Cir. 2002) (citation omitted). An ALJ also may consider [t]he 4 1 nature, location, onset, duration, frequency, radiation, and intensity of any pain 2 or other symptoms; [p]recipitating and aggravating factors ; [t]ype, dosage, 3 effectiveness, and adverse side-effects of any medication ; [t]reatment, other 4 than medication ; [f]unctional restrictions ; [t]he claimant s daily activities ; 5 unexplained, or inadequately explained, failure to seek treatment or follow a 6 prescribed course of treatment ; and ordinary techniques of credibility 7 evaluation, in assessing the credibility of the allegedly disabling subjective 8 symptoms. Bunnell, 947 F.2d at 346-47; see also Soc. Sec. Ruling 96-7p; 20 9 C.F.R. 404.1529 (2005); Morgan v. Comm r of Soc. Sec. Admin., 169 F.3d 595, 10 600 (9th Cir. 1999) (ALJ may properly rely on plaintiff s daily activities, and on 11 conflict between claimant s testimony of subjective complaints and objective 12 medical evidence in the record); Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 13 1998) (ALJ may properly rely on weak objective support, lack of treatment, daily 14 activities inconsistent with total disability, and helpful medication); Johnson v. 15 Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995) (ALJ may properly rely on the fact 16 that only conservative treatment had been prescribed); Orteza v. Shalala, 50 F.3d 17 748, 750 (9th Cir. 1995) (ALJ may properly rely on claimant s daily activities and 18 the lack of side effects from prescribed medication). 19 2. 20 As stated by the ALJ, Plaintiff alleged problems with blacking out due to 21 her uncontrolled diabetic blood sugars, dizziness, shortness of breath, weakness, 22 and lethargy. (AR at 16.) She claims that she has stopped going out for walks 23 because she experiences dizziness and shortness of breath, requiring her to sit or 24 lie down. (Id.) She also contends her weakness, lethargy, and dizziness preclude 25 her from taking care of her grandchildren. (Id.) 26 27 28 Analysis. The ALJ then provided additional clear and convincing reasons for his discounting of Plaintiff s subjective complaints. First, the ALJ found inconsistencies between Plaintiff s claimed limitations 5 1 and objective medical findings. (AR at 16.) To the extent the ALJ relied on the 2 fact that the objective medical evidence does not support Plaintiff s alleged 3 severity of symptoms, although a lack of objective medical evidence may not be 4 the sole reason for discounting a plaintiff s credibility, it is nonetheless a 5 legitimate and relevant factor to be considered. Rollins v. Massanari, 261 F.3d 6 853, 857 (9th Cir. 2001). Here, the report of Dr. Bailey, the medical expert, found 7 that Plaintiff retained the RFC consistent with a less than full range of light work 8 (AR at 16), while the consultative examiner and State Agency medical reviewer 9 assessed Plaintiff as capable of medium work (id. at 17). The ALJ gave Plaintiff 10 the benefit of the doubt by giving greater weight to the opinion of the medical 11 expert. (Id.) The ALJ noted that according to the medical expert, Plaintiff s 12 alleged symptoms of weakness, lethargy, and dizziness could not be attributed to 13 her severe impairments. (Id. at 16.) Morgan, 169 F.3d at 600 (a conflict between 14 subjective complaints and objective medical evidence in the record is a sufficient 15 reason that undermines a claimant s credibility). 16 Furthermore, the ALJ did not rely on this factor alone. He also noted 17 inconsistent statements made by Plaintiff regarding the basis for her disability. 18 For instance, the records of Plaintiff s treating physician, Dr. Young Harding, 19 consistently showed that despite Plaintiff s allegations of disabling symptoms, 20 Plaintiff regularly denied those problems typically associated with diabetes and 21 hypertension, including chest pain, shortness of breath, dysuria, urinary 22 frequency, headaches, hypoglycemia, and visual disturbances. (AR at 16.) The 23 ALJ concluded that Plaintiff s statements in the treatment notes were not 24 consistent with her subjective complaints and, therefore, cast[ed] a blemish upon 25 her overall credibility. (Id.) This is a specific and legitimate reason for 26 discounting Plaintiff s credibility. Thomas, 278 F.3d at 959 (the ALJ properly 27 drew an adverse credibility inference based on inconsistent statements). 28 In addition, the ALJ noted that treatment notes from Dr. Harding dated 6 1 December 2005 through January 2008 document little more than routine, follow- 2 up care for Plaintiff s diabetes and hypertension. (AR at 16.) Conservative or 3 infrequent treatment may be used by the ALJ to refute allegations of disabling 4 pain. See Johnson, 60 F.3d at 1434. 5 The ALJ also found that Plaintiff was noncompliant with a relatively 6 conservative treatment regimen. The ALJ noted that Plaintiff s diabetes would 7 be much better controlled if she would lose weight, but Plaintiff was poorly 8 compliant with her exercise regimen. (AR at 16.) The ALJ noted that Plaintiff 9 could be expected to have problems with weakness if she did not get out 10 frequently to exercise. (Id.) Again, this is a specific and legitimate reason for 11 discounting credibility. Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (an 12 ALJ is permitted to consider lack of treatment in his credibility determination); 13 see also Soc. Sec. Ruling 82-59 (when a disabling condition is amenable to 14 treatment, claimant must follow the course of treatment); id. 96-7p (an individual 15 may be less credible for failing to follow prescribed treatment without cause); 220 16 C.F.R. § 416.930 (applicant must follow treatment). 17 Even so, the ALJ noted that Plaintiff s diabetes, obesity, and hypertension 18 were better controlled by October 2007, and that she was doing well by 19 January 2008. (AR at 16.) As such, because Plaintiff s diabetes, obesity, and 20 hypertension could be controlled effectively, her complaints that she was unable 21 to work as a result of her severe impairments were properly discounted. Odle v. 22 Heckler, 707 F.2d 439, 440 (9th Cir. 1983) (where claimant s multiple 23 impairments were controllable by medication or other forms of treatment, ALJ did 24 not err by finding impairments did not significantly limit claimant s exertional 25 capabilities); Crane v. Shalala, 76 F.3d 251, 254 (9th Cir. 1996) (ALJ properly 26 considered claimant s good response to treatment). 27 28 Based on the foregoing, the Court finds the ALJ s credibility finding was supported by substantial evidence and was sufficiently specific to permit the Court 7 1 to conclude that the ALJ did not arbitrarily discredit Plaintiff s subjective 2 testimony. Thus, there was no error. 3 C. The ALJ Properly Considered the Lay Witness Testimony. 4 Donisha West, identified as Plaintiff s daughter, testified that she gives her 5 mother insulin shots when her mother becomes too weak, dizzy, and lightheaded; 6 that her mother sweats a lot; and that her mother does not like to socialize. (AR at 7 57.) Plaintiff contends it was error for the ALJ to disregard these statements 8 without explanation. (JS at 20.) 9 Title 20 C.F.R. §§ 404.1513(d) and 416.913(d) provides that, in addition to 10 medical evidence, the Commissioner may also use evidence from other sources 11 to show the severity of [an individual s] impairment(s) and how it affects [his] 12 ability to work, and the Ninth Circuit has repeatedly held that [d]escriptions by 13 friends and family members in a position to observe a claimant s symptoms and 14 daily activities have routinely been treated as competent evidence. Sprague v. 15 Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). This applies equally to the sworn 16 hearing testimony of witnesses (see Nguyen v. Chater, 100 F.3d 1462, 1467 (9th 17 Cir. 1996)), as well as to unsworn statements and letters of friends and relatives. 18 See Schneider v. Comm r of Soc. Sec. Admin., 223 F.3d 968, 975 (9th Cir. 2000). 19 If the ALJ chooses to reject such evidence from other sources, he may not do so 20 without comment. Nguyen, 100 F.3d at 1467. The ALJ must provide reasons 21 that are germane to each witness. Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 22 1993). 23 The ALJ s failure to address lay witness testimony generally is not 24 harmless. Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1991). In failing to 25 address a lay witness statement, the error is harmless only if a reviewing court . . 26 . can confidently conclude that no reasonable ALJ, when fully crediting the 27 testimony, could have reached a different disability determination. Stout v. 28 Comm r, Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006); see also 8 1 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006). 2 Here, the ALJ failed to address the testimony of Plaintiff s daughter. A 3 review of that testimony, however, demonstrates that it is not inconsistent with the 4 ALJ s findings and, therefore, it is not at all clear that the ALJ actually rejected 5 this evidence. Accordingly, there was no need for the ALJ to discuss this 6 evidence. 7 For instance, Donisha West s statement that Plaintiff becomes too weak, 8 dizzy, and lightheaded to give herself insulin shots (AR at 57) is reflected in the 9 ALJ s findings that Plaintiff is able to perform less than a full range of light work 10 with nonexertional limitations, including only occasional pushing and pulling with 11 the feet, no crawling, occasional climbing of stairs, no working at unprotected 12 heights or climbing ladders, no working around unusual amounts of dusts, fumes, 13 and gases, no driving long distances, and the ability to tolerate only occasional 14 temperature changes. (AR at 16.) 15 However, even if the ALJ s failure to address the opinions of Plaintiff s 16 daughter was error, the error is harmless because no reasonable ALJ would have 17 reached a different disability determination having considered it. Stout, 454 F.3d 18 at 1056; Robbins, 466 F.3d at 885. This is because the opinions of Plaintiff s 19 daughter basically mirrored the subjective complaints of Plaintiff, which were 20 properly rejected by the ALJ, as discussed in part above. (See Discussion Part 21 III.B.) Thus, the Court finds that even if this testimony was fully considered, no 22 reasonable ALJ could have reached a different disability determination. 23 Accordingly, any error was harmless. 24 Based on the foregoing, the Court finds that relief is not warranted on 25 Plaintiff s claim. 26 /// 27 /// 28 /// 9 1 IV. 2 ORDER 3 Based on the foregoing, IT IS THEREFORE ORDERED, that judgment be 4 entered affirming the decision of the Commissioner of Social Security and 5 dismissing this action with prejudice. 6 7 8 Dated: July 24, 2013 HONORABLE OSWALD PARADA United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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