Tanya L. Tagle v. Carolyn W. Colvin, No. 2:2015cv03929 - Document 24 (C.D. Cal. 2016)

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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Tanya L. Tagle v. Carolyn W. Colvin Doc. 24 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 TANYA L. TAGLE, 12 Plaintiff, Case No. CV 15-3929-SP 13 MEMORANDUM OPINION AND ORDER 14 15 16 17 18 ) ) ) ) v. ) ) ) CAROLYN W. COLVIN, ) Acting Commissioner of Social Security ) Administration, ) ) Defendant. ) ) ) 19 I. 20 INTRODUCTION 21 On May 22, 2015, plaintiff Tanya Tagle filed a complaint against the 22 Commissioner of the Social Security Administration (“Commissioner”), seeking a 23 review of a denial of a period of disability, disability insurance benefits (“DIB”), 24 and supplemental security income (“SSI”). Both plaintiff and defendant have 25 consented to proceed for all purposes before the assigned Magistrate Judge 26 pursuant to 28 U.S.C. § 636(c). The court deems the matter suitable for 27 adjudication without oral argument. 28 1 Dockets.Justia.com 1 Plaintiff presents one disputed issue for decision, whether the administrative 2 law judge (“ALJ”) properly considered plaintiff’s credibility. Memorandum in 3 Support of Plaintiff’s Complaint (“P. Mem.”) at 4-15; Memorandum in Support of 4 Defendant’s Answer (“D. Mem.”) at 1-7. 5 Having carefully studied the parties’ written submissions, the Administrative 6 Record (“AR”), and the decision of the ALJ, the court concludes that, as detailed 7 herein, some of the reasons provided by the ALJ for discounting plaintiff’s 8 credibility were clear and convincing. Consequently, the court affirms the 9 decision of the Commissioner denying benefits. 10 II. 11 FACTUAL AND PROCEDURAL BACKGROUND 12 Plaintiff, who was thirty-eight years old on April 26, 2008, the beginning of 13 the period at issue, completed high school and has a certificate for medical 14 assisting. AR at 53, 76, 678, 684, 806, 1056. Plaintiff has past relevant work as a 15 retail sales clerk and a pharmacy clerk. Id. at 98, 206, 1035, 1057. 16 On January 16, 2007, plaintiff, unrepresented, filed applications for DIB 17 and SSI, alleging an onset date of January 1, 2007.1 Id. at 108. The Commissioner 18 denied plaintiff’s applications, after which plaintiff filed a request for a hearing. 19 See id. On April 25, 2008, ALJ Philip J. Simon denied plaintiff’s claims. Id. at 20 108-20. Plaintiff did not pursue any legal remedies at that time (see id. at 25, 21 641), therefore the unfavorable decision of April 25, 2008 is final and binding, and 22 is not now subject to review by this court. See 24 U.S.C. § 405(g)-(h). 23 On September 17, 2008, plaintiff filed new applications for a period of 24 disability, DIB, and SSI, alleging an onset date of June 22, 2007, due to scoliosis, 25 26 1 The Administrative Record does not contain plaintiff’s January 16, 2007 27 applications, but based on the decision, it appears plaintiff alleged disability due to 28 lower back pain, obesity, kidney stones, and ankle sprain. AR at 112. 2 1 depression, anxiety, arthritis, degenerative disc disease, and fibromyalgia. AR at 2 157-66, 205, 1056. The Commissioner denied plaintiff’s applications, after which 3 she filed a request for a hearing. Id. at 121-31. 4 On December 10, 2009, plaintiff, represented by counsel, appeared and 5 testified at a hearing before ALJ Michael J. Kopicki. Id. at 71-97. A vocational 6 expert also testified. Id. at 98-103. On December 21, 2009, the ALJ denied 7 plaintiff’s claims for benefits.2 Id. at 25-35. Plaintiff filed a timely request for 8 review of the ALJ’s decision, which was denied by the Appeals Council. Id. at 79 9, 17. After considering additional information submitted by plaintiff, the Appeals 10 Council again denied plaintiff’s request. Id. at 1-3. 11 On September 9, 2011, plaintiff filed a complaint in this court against the 12 Commissioner. See case no. CV-11-7093-SP. On September 21, 2012 the court 13 found the ALJ improperly discounted plaintiff’s credibility and remanded the case 14 to the Commission for further administrative proceedings. AR at 750-761. Upon 15 remand the Appeals Council directed the ALJ to offer plaintiff the opportunity to 16 appear at another hearing and to take any further action needed to complete the 17 record.3 Id. at 772; see id. at 641. 18 Plaintiff, represented by counsel, appeared and testified again before ALJ 19 20 21 22 23 24 25 26 2 A prior finding of non-disability creates a presumption of continuing nondisability, but the presumption does not apply if there are changed circumstances. Lester v. Chater, 81 F.3d 821, 827-28 (9th Cir. 1996); Chavez v. Bowen, 844 F.2d 691, 693-94 (9th Cir. 1988). Although the agency determined Chavez applied (AR at 123-35), the ALJ concluded changed circumstances existed. Id. at 26, 642. Further, Chavez is inapplicable when the claimant was unrepresented in the prior claim. Lester, 81 F.3d at 827-28. 3 Plaintiff filed a third set of applications for benefits on July 21, 2011. AR at 27 971-85. The Appeals Council consolidated all of plaintiff’s claims for 28 consideration by the ALJ. Id. at 773. 3 1 Kopicki on August 6, 2013.4 Id. at 676-709. A vocational expert also testified. 2 Id. at 709-15. On February 24, 2014, the ALJ again denied plaintiff’s claims for 3 benefits. Id. at 641-61 4 Applying the well-known five-step sequential evaluation process, the ALJ 5 found, at step one, that plaintiff had not engaged in substantial gainful activity 6 since April 26, 2008, the first day following the ALJ Simon’s binding decision 7 denying plaintiff benefits. Id. at 644; see id. at 25-35. 8 At step two, the ALJ found plaintiff suffered from the following severe 9 combination of impairments: fibromyalgia; degenerative disc disease of the 10 lumbar spine; minimal scoliosis; obesity; a depressive disorder, not otherwise 11 specified; a history of anxiety; and a history of recurrent kidney stones. Id. at 64412 45. The ALJ additionally found plaintiff’s irritable bowel syndrome, asthma, 13 allergies, and history of headaches nonsevere, and plaintiff’s medically 14 determinable mental impairment nonsevere when considered independent of her 15 physical impairments. Id. at 645-50. 16 At step three, the ALJ found that plaintiff’s impairments, whether 17 individually or in combination, did not meet or medically equal one of the listed 18 impairments set forth in 20 C.F.R. part 404, Subpart P, Appendix 1 (the 19 “Listings”). Id. 650. The ALJ then assessed plaintiff’s residual functional capacity (“RFC”),5 and 20 21 22 4 The ALJ stated in his decision that plaintiff appeared at an October 11, 2012 23 hearing. AR at 641. No transcript from such a hearing is in the record and there is 24 no indication in the record that the August 2013 hearing was of a supplemental nature. See id. at 678. Further, as an October 2012 hearing would have been 25 before the Appeals Council remanded the case to the ALJ in December 2012 (see 26 id. at 770), it appears unlikely there was such a hearing. 27 5 Residual functional capacity is what a claimant can do despite existing 28 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 4 1 determined she had the RFC to perform light work, with the limitations that 2 plaintiff could: lift or carry twenty pounds occasionally, and ten pounds 3 frequently; stand or walk for six hours in an eight-hour workday; sit for six hours 4 in an eight-hour workday; and occasionally crouch, crawl, stoop, and balance. Id. 5 at 651. The ALJ determined plaintiff could never climb ladders, ropes, or 6 scaffolds; should avoid operation of foot controls; and must avoid concentrated 7 exposure to temperature extremes and hazards, such as dangerous moving 8 machinery and unprotected heights. Id. Plaintiff was further limited to 9 performance of simple work tasks. Id. 10 The ALJ found, at step four, that plaintiff was incapable of performing her 11 past relevant work. Id. at 659. 12 At step five, the ALJ found that there were jobs that existed in significant 13 numbers in the national economy that plaintiff could perform, including 14 housekeeping cleaner, cashier II, and fast food worker. Id. at 660. Consequently, 15 the ALJ concluded that, for the relevant period, plaintiff did not suffer from a 16 disability as defined by the Social Security Act. Id. at 661. 17 Plaintiff filed a timely request for review of the ALJ’s decision, which was 18 denied by the Appeals Council. Id. at 634-37. The ALJ’s decision stands as the 19 final decision of the Commissioner. 20 III. 21 STANDARD OF REVIEW 22 This court is empowered to review decisions by the Commissioner to deny 23 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 24 Administration must be upheld if they are free of legal error and supported by 25 26 1155-56 n.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). 5 1 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 2 (as amended). But if the court determines that the ALJ’s findings are based on 3 legal error or are not supported by substantial evidence in the record, the court 4 may reject the findings and set aside the decision to deny benefits. Aukland v. 5 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 6 1144, 1147 (9th Cir. 2001). 7 “Substantial evidence is more than a mere scintilla, but less than a 8 preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such 9 “relevant evidence which a reasonable person might accept as adequate to support 10 a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 11 F.3d at 459. To determine whether substantial evidence supports the ALJ’s 12 finding, the reviewing court must review the administrative record as a whole, 13 “weighing both the evidence that supports and the evidence that detracts from the 14 ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be 15 affirmed simply by isolating a specific quantum of supporting evidence.’” 16 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 17 (9th Cir. 1998)). If the evidence can reasonably support either affirming or 18 reversing the ALJ’s decision, the reviewing court “‘may not substitute its 19 judgment for that of the ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 20 1018 (9th Cir. 1992)). 21 IV. 22 DISCUSSION 23 Plaintiff contends the ALJ failed to make a proper credibility determination. 24 P. Mem. at 4-15. Specifically, plaintiff contends the ALJ failed to provide any 25 clear and convincing reasons for discounting plaintiff’s credibility. The court 26 disagrees. 27 An ALJ must make specific credibility findings, supported by the record. 28 6 1 Social Security Ruling (“SSR”) 96-7p.6 To determine whether testimony 2 concerning symptoms is credible, the ALJ engages in a two-step analysis. 3 Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, the ALJ 4 must determine whether a claimant produced objective medical evidence of an 5 underlying impairment “‘which could reasonably be expected to produce the pain 6 or other symptoms alleged.’” Id. at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 7 341, 344 (9th Cir. 1991) (en banc)). Second, if there is no evidence of 8 malingering, an “ALJ can reject the claimant’s testimony about the severity of her 9 symptoms only by offering specific, clear and convincing reasons for doing so.”7 10 Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (citation omitted); accord 11 Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014). 12 “[A]n ALJ does not provide specific, clear, and convincing reasons for 13 rejecting a claimant’s testimony by simply reciting the medical evidence in 14 support of his or her residual functional capacity determination.” Brown-Hunter v. 15 Colvin, 806 F.3d 487, 489 (9th Cir. 2015). To permit a meaningful review of the 16 ALJ’s credibility determination, the ALJ must “specify which testimony [he] finds 17 not credible, and then provide clear and convincing reasons, supported by 18 evidence in the record, to support that credibility determination.” Id. The ALJ 19 20 21 22 23 24 25 6 “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). 7 Defendant suggests the ALJ was only required to provide specific reasons 26 supported by substantial evidence, rather than clear and convincing reasons. D. Mem. at 1. But the Ninth Circuit has explicitly rejected that argument. See 27 Burrell, 775 F.3d at 1136-37. Accordingly, this court applies the clear and 28 convincing standard. 7 1 may consider several factors in weighing a claimant’s credibility, including: 2 ordinary techniques of credibility evaluation such as a claimant’s reputation for 3 lying; the failure to seek treatment or follow a prescribed course of treatment; and 4 a claimant’s daily activities. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 5 2008); Bunnell, 947 F.2d at 346-47. The ALJ may additionally consider 6 “inconsistencies either in [claimant’s] testimony or between h[er] testimony and 7 h[er] conduct” and “testimony from physicians and third parties concerning the 8 nature, severity, and effect of the symptoms of which [s]he complains.” Light v. 9 Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). 10 Here, at the first step, the ALJ found the combination of plaintiff’s 11 medically determinable impairments could reasonably be expected to cause some 12 of the symptoms alleged. AR at 655. At the second step, because he was reluctant 13 to make an express and separate finding of malingering, the ALJ was required to 14 provide clear and convincing reasons for finding plaintiff less credible. See id. at 15 655, 657. Here, the ALJ discounted plaintiff’s credibility because: (1) the record 16 lacks objective medical evidence to “support the degree of limitation [plaintiff] 17 describes”; (2) there is no “credible explanation for the inconsistencies between 18 [plaintiff’s] 2009 and more recent testimony (and descriptions given to other 19 sources) concerning actives of daily living”; (3) plaintiff appears to embellish 20 when describing her symptoms – “clinicians [have] described [her] as exhibiting 21 exaggeration, poor motivation, vague complaints and poor effort on examination”; 22 (4) the record shows “large, unexplained gaps in [plaintiff’s] treatment history,” 23 and plaintiff “failed to follow-up with a mental health specialist”; and (5) plaintiff 24 “has a poor work record.” Id. at 655-58. 25 As an initial matter, the ALJ specified those portions of plaintiff’s testimony 26 that he found lacking in credibility: 27 In August 2013, [plaintiff] testified that she is unable to work due to 28 8 1 back pain, greater on the right, tailbone pain, pain in her whole body, 2 sharp stinging pain in her legs and feet, shooting and tingling pain 3 shooting down her arms and wrists, muscle aches, left-sided neck 4 pain, poor sleep, kidney stones, nausea and vomiting, stomach and 5 bowel problems, hypertension, anxiety and depression. 6 Id. at 654-55. 7 A. Lack of Objective Medical Evidence Was a Partially Clear and 8 Convincing Reason for Discounting Plaintiff’s Credibility 9 One of the reasons given by the ALJ for finding plaintiff less than credible 10 was the lack of objective medical evidence to support certain of her claimed 11 impairments. AR at 656. Generally an ALJ “may not reject a claimant’s 12 subjective complaints based solely on a lack of objective medical evidence to fully 13 corroborate the alleged severity of pain,” but lack of objective medical evidence 14 may be one factor used to evaluate credibility. Bunnell, 947 F.2d at 345; see 15 Rollins v. Massanari, 261 F.3d 853, 856-57 (9th Cir. 2001) (asserting a lack of 16 corroborative objective medical evidence may be one factor in evaluating 17 credibility). Plaintiff’s main complaints involve back and leg pain resulting from 18 degenerative disc disease and fibromyalgia, and anxiety, depression, and poor 19 sleep. 20 “Fibromyalgia’s cause is unknown, there is no cure, and it is poorly- 21 understood within much of the medical community.” Benecke v. Barnhart, 379 22 F.3d 587, 590 (9th Cir. 2004). Lack of objective tests supporting the severity of 23 plaintiff’s subjective complaints, alone, cannot justify discounting plaintiff’s 24 credibility because the diagnosis for fibromyalgia is based entirely on subjective 25 “reports of pain and other symptoms . . . . [and] to date there are no laboratory tests 26 to confirm the diagnosis.” Id. “There are no laboratory tests for the presence or 27 severity of fibromyalgia.” Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996) 28 9 1 (emphasis added); see Preston v. Secretary of Health and Human Servs., 854 F.2d 2 815, 818 (6th Cir. 1988) (noting that “physical examinations will usually yield 3 normal results – a full range of motion, no joint swelling, as well as normal muscle 4 strength and neurological reactions”). 5 The ALJ here recognized that “lack of objective findings is not a clear and 6 convincing reason for rejecting the claimant’s statements concerning the severity 7 of her fibromyalgia.” AR at 656. As such, the ALJ took pains to specify that his 8 discussion of lack of objective medical evidence did not concern fibromyalgia, 9 which was not the only impairment plaintiff alleged. Rather, he found a lack of 10 objective medical evidence to support plaintiff’s claimed limitations due to a 11 “back condition emanating from scoliosis or bulging or herniated lumbar discs.” 12 Id.; see id. at 69, 86, 646-48, 327-29, 336, 346-50, 376-78, 1172-76. 13 The ALJ noted, “[i]n contrast to fibromyalgia, which is defined by 14 classification of symptoms and for which there are no confirmatory diagnostic and 15 clinical tests, the nerve pain [plaintiff] describes should in a general sense have a 16 causative agent.” Id. at 656. The ALJ recounts numerous tests that were 17 unsuccessful in isolating the cause of plaintiff’s alleged severe back pain. Id.; see, 18 e.g., id. at 356 (finding mild age-related disk changes but no nerve root 19 impingement); 445 (finding mild tenderness but “no evidence of true nerve root 20 damage”); 1161 (“5/5 muscle strength globally” with intact sensation and 21 reflexes). The ALJ thus found no explanation in the record “from a back 22 perspective, for her nerve related leg and foot complaints . . . [n]or is an etiology 23 provided for her allegations of stinging arm pain.” Id. at 656. The ALJ 24 considered plaintiff’s complaints of “stinging arm and leg pain in the context of 25 fibromyalgia,” and found such pain did meet the diagnostic criteria for 26 fibromyalgia – “widespread muscle pain with repeated manifestations of six or 27 more fibromyalgia symptoms, none of which describe the stinging pain [plaintiff] 28 10 1 alleges.” Id. (citing SSR 12-2p, quoting the 2010 American College of 2 Rheumatology Preliminary Diagnostic Criteria). 3 Based on this analysis and the supporting evidence in the record, the lack of 4 objective medical evidence was a clear and convincing reason to discount 5 plaintiff’s subjective testimony as to the symptoms of her degenerative disc 6 disease and scoliosis. Nonetheless, plaintiff’s primary allegations of pain and 7 limitations appeared to stem from her fibromyalgia, and lack of objective medical 8 evidence is not a valid reason to discount such complaints. 9 B. Inconsistent and Unsupported Testimony Was a Partially Clear and 10 Convincing Reason for Discounting Plaintiff’s Credibility 11 The ALJ found, “[i]n her most recent testimony [plaintiff] describes 12 significantly greater limitations in activities of daily living than she did in at the 13 2009 hearing.” AR at 655. The ALJ found this testimony not to be “fully credible 14 in this regard as the expanded medical records do not corroborate a worsening of 15 her fibromyalgia and other conditions, except possibly those records related to her 16 kidney stones.” Id. Inconsistent and unsupported testimony can weigh against a 17 plaintiff’s credibility. See Light, 119 F.3d at 792 (finding inconsistency in 18 testimony may be considered in determining credibility); see also Bray v. Astrue, 19 554 F.3d 1219, 1227 (9th Cir. 2009); Batson v. Comm’r, 359 F.3d 1190, 1196-97 20 (9th Cir. 2004). 21 In 2008, plaintiff testified before ALJ Simon that her pain started eight 22 years prior and “in the last year and a half it [had] gotten really, really bad.” Id. at 23 56. She testified should could only stand for a few minutes, walk short distances, 24 navigate stairs with a cane, and although she could “force [her]self to sit” for more 25 than ten minutes, after which her legs went numb, she continued to experience 26 pain while sitting. Id. at 57-58. Plaintiff asserted she was not capable of any 27 exercise (id. at 60), and although she tries to assist with chores, her daughter “does 28 11 1 almost everything.” Id. at 63. She stated she occasionally left the apartment to 2 help with laundry at the facility located in the complex, to shop with her daughter, 3 and attend doctor’s appointments, but participated in no social activities, and was 4 “not real great with computers.” Id. at 63-64. She denied ever having a drivers 5 license, but acknowledged she could take public transportation or get rides from 6 friends. Id. 7 In 2009, plaintiff testified she was unable to work because her “pain is 8 really severe. It [is] painful to sit, even painful to lie down. But sometimes, it’s so 9 severe that [she] can’t even stand up at all and [she’s] just so tired from the pain.” 10 Id. at 79. She reported the pain is always present, “[b]ut it can be at different 11 levels.” Id. at 80. Plaintiff testified that her best guess was she could walk about a 12 half a block to her mailbox before the pain gets so bad that she “[doesn’t] want to 13 do anything else.” Id. at 92. She could stand for only five to ten minutes, could 14 not put any weight on her right-side while sitting, and she felt constant pain while 15 seated. Id. She confirmed that she would not be able to stand or sit longer even 16 with breaks. Id. at 93. She said she washed the dishes, might sleep all day if her 17 pain stopped her from sleeping the night before, helps with the laundry, and can 18 shop if there’s a list so she did stand for too long, watched a lot of broadcast 19 television, and did not read because she could not concentrate. Id. at 87-89. She 20 no longer took public transportation, so she was completely dependent on her 21 daughter to give her rides. Id. at 88. 22 In 2011, plaintiff completed an Adult Functional Report questionnaire. Id. 23 at 1026. She reported waking up, eating food cooked by her daughter, watching 24 television, and sleeping throughout a normal day. Id. She reported that attending 25 to her own “personal care” was not a problem, but her daughter does all the other 26 chores because it is too difficult for her to stand and she did not shave her legs 27 often because it hurt to bend. Id. at 1027-28. She reported going to the grocery 28 12 1 store but only with a set list of items to purchase, which helps limit the amount of 2 time she spends standing. Id. at 1029, 1030. She watched television, although she 3 reported it often put her to sleep. Id. at 1030-31. She socialized several times per 4 year with her father, but she mostly just stayed home. Id. In a 2011 disability 5 appeal form, plaintiff reported her symptoms began to worsen in April 2011. Id. at 6 1079. She stated, “[t]he main reason [she doesn’t] do anything all day is because 7 the pain get so bad and [she] will start to vomit.” Id. at 1083. She reported 8 difficulty showering because it hurt to stand. Id. at 1082. 9 At the 2013 hearing, plaintiff reported having degenerative disc disease, 10 fibromyalgia, and scoliosis. Id. at 685-86. She testified she experienced pain 11 throughout her body, especially in her tailbone and lower back, which was worse 12 on her right side. Id. at 686. She said her pain was exacerbated by standing, 13 walking, and sitting. Id. at 686-87. She reported her pain was so severe that she 14 no longer did any household chores. Id. at 687. She admitted her doctors suggest 15 she swim to help ease her pain, but she had no access to an indoor pool with warm 16 water and her medications made her susceptible to sunburn. Id. at 697-98. On an 17 average day, she mostly lay in bed watching television or sleeping. Id. at 701. 18 She reported not going to the market often and that her daughter did all the 19 household chores. Id. at 702. She reported difficulty showering and cleaning 20 herself. Id. She did not use public transportation because sitting was too difficult 21 (id. at 703), and since she stopped working she really has no friends. Id. at 705. 22 She said she experienced very few good days, but even on those, she could not “go 23 for walks or anything like that.” Id. She reported not leaving her apartment often 24 – sometimes not for an entire week. Id. at 707. 25 The review of plaintiff’s testimony reflects that, although plaintiff 26 consistently reported being in severe pain, her reported daily activities decreased 27 over the years. The ALJ focused on the differences in her testimony between 2009 28 13 1 and 2013. In 2009, plaintiff testified she could walk about a half a block to her 2 mailbox, could stand for five to ten minutes, washed the dishes, helped with the 3 laundry, and could shop for short periods of time. By contrast, in 2013 plaintiff 4 testified she no longer did any household chores, on an average day mostly lay in 5 bed watching television or sleeping, did not go to the market often, had difficulty 6 showering and cleaning herself, even on her good days could not go for walks, and 7 sometimes would not leave her apartment for an entire week. Although the 8 difference in this testimony is not dramatic, the change between being able to do 9 chores in 2009 and lying in bed all day most days in 2013 was significant. 10 The ALJ focused on the lack of evidence of this worsening condition. To 11 the extent the ALJ suggested the lack of objective medical evidence of a 12 worsening of her fibromyalgia was a relevant factor, the ALJ’s reasoning was 13 invalid, for the reasons discussed above. But the ALJ also notes that, given 14 plaintiff’s reports of doing virtually no activity, he would expect to see “evidence 15 of diffuse atrophy of her upper and lower extremities due to lack of use,” yet he 16 found no such evidence in the records. Id. at 655; see id at 646-47. This is 17 supported by evidence in the record. See id. at 444, 473, 1365. 18 The ALJ also found plaintiff’s testimony regarding the increasing severity 19 of her pain and limitations to be inconsistent with the extent to which medical 20 records note plaintiff complained of fibromyalgia pain, particularly in the “more 21 recent” treatment records from Dr. Patel . Id. at 658. But this is not supported by 22 the record, as Dr. Patel’s notes from 2010 through 2012 contain numerous 23 references to fibromyalgia. See id. at 1100-04, 1106-08, 1113-19, 1121-24, 1126, 24 1128; see also id. at 1167 (assessing plaintiff with fibromyalgia in 2013 after 25 examination at the Los Angeles County USC Medical Center and review of 26 plaintiff’s medical records). There is of course no dispute that plaintiff suffers 27 from fibromyalgia; the ALJ found it to be one of plaintiff’s severe impairments. 28 14 1 See id. at 644. It is the extent to which plaintiff’s fibromyalgia limits her that is in 2 dispute, and in this regard, the record does not reflect a significant lack of 3 complaints by plaintiff about her fibromyalgia. 4 As such, the lack of medical evidence of muscle atrophy to support her 5 claimed inactivity was a clear and convincing reason to discount plaintiff’s 6 credibility, but in other respects the ALJ failed to point to inconsistencies in 7 plaintiff’s testimony that fairly undercut her credibility. 8 C. Allegations of Embellishing Her Fibromyalgia Pain Were Not a Clear 9 and Convincing Reason for Discounting Plaintiff’s Credibility 10 The ALJ did not find plaintiff to be a malingerer (AR at 657), but he noted 11 “clinicians described [plaintiff] as exhibiting exaggeration, poor motivation, vague 12 complaints, and poor effort.” Id. at 656. In February 2007, Dr. Van Duong found 13 plaintiff’s reported pain in her right flank “[v]ery questionable.” Id. at 310, 656. 14 In March 2007, Dr. Adelaide Willis noted plaintiff was “apparently applying for 15 disability,” and in April 2007, she opined that plaintiff “may have secondary gain 16 in terms of trying to apply for disability.” Id. at 303, 305, 656. In June 2008, Dr. 17 Kaleem Uddin reported her impression that plaintiff “[was] not giving a good 18 effort” and was “very vague” in describing her pain during her examination. Id. at 19 356, 656. She opined “there are two possibilities either she is making it up just to 20 get off work . . . or this is soft tissue in nature.” Id. 21 Generally, an ALJ may discount a plaintiff’s subjective complaints when 22 there is evidence in the record of exaggeration or a lack of cooperation and effort. 23 See Tonapetyan, 242 F.3d at 1148 (discounting credibility due to, in part, a 24 showing of “poor effort” during testing); Thomas v. Barnhart, 278 F.3d 947, 959 25 (9th Cir. 2002) (finding “[e]ven more compelling is the ALJ’s [determination], 26 supported by the record, that [claimant] failed to give maximum or consistent 27 effort during two physical capacity evaluations”). But, in the instant case, all of 28 15 1 the reports cited by the ALJ occurred prior to plaintiff being diagnosed with 2 fibromyalgia in July 2008. After physicians became aware of her condition, they 3 found plaintiff to be at least of “average reliability” (AR at 442), reported she was 4 “a good and reliable historian” (id. at 1358; see id. at 358, 443) and “cooperative” 5 (id. at 1360), and were able to “develop[] a good rapport with [her].” Id. at 364, 6 443. Physicians often question the motives of a patient seeking disability, 7 especially when his or her subjective complaints cannot be substantiated. But it is 8 understood that fibromyalgia pain cannot be observed in the usual way, utilizing 9 standard medical tests. See Preston, 854 F.2d at 818. 10 The change in perception by examining physicians as to plaintiff’s 11 cooperation and effort after her diagnosis with fibromyalgia undermines the earlier 12 allegations of embellishing or poor effort, which therefore are not a clear and 13 convincing reason for finding plaintiff not credible. 14 D. Failure to Seek Treatment Was a Clear and Convincing Reason for 15 Discounting Plaintiff’s Credibility 16 The ALJ also found plaintiff’s allegations of disabling symptoms to be 17 inconsistent with the “large, unexplained gaps in treatment” reflected in her 18 medical records. AR at 657. The ALJ pointed to the fact that there was no 19 evidence of treatment for any condition from January to June 2012, and that 20 plaintiff did not see Dr. Buhay, her treating rheumatologist, for over a year from 21 September 2008 to November 2009. Id.; see id. at 548, 1102-03. The ALJ 22 recognized the challenges plaintiff faced in getting treatment from county facilities 23 or through her poor insurance, but noted that since plaintiff would get treatment 24 for acute conditions like a kidney stone, “one would expect a greater degree of 25 treatment” if plaintiff’s “symptoms are truly as severe as she alleges.” Id. at 657; 26 see Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (a claimant’s 27 “‘statements may be less credible if the level or frequency of treatment is 28 16 1 inconsistent with the level of complaints’”) (quoting SSR 96-7p). 2 In addition, the ALJ noted plaintiff was referred to mental health treatment 3 on several occasions, but failed to follow her physicians’ treatment 4 recommendations or otherwise pursue mental health care. AR at 648-50, 657; see 5 id. at 85, 700-01, 1128 (alleging persistent, overwhelming anxiety causes 6 concentration problems, chest pains, and sleep dysfunction but failing to follow-up 7 with physicians or seek treatment); Tommasetti, 533 F.3d at 1039 (failure to 8 follow a prescribed course of treatment weighs against a claimant’s credibility). 9 Plaintiff admits she was often referred to psychological treatment, but claims she 10 never went because her insurance did not cover such treatment. Id. at 84-85 11 (claiming MediCal does not pay for psychiatric treatment for those over the age of 12 21);8 id. at 94-96 (acknowledging her rheumatologist referred her to see a 13 psychologist and that she had access to county facilities); id. at 699 (“almost every 14 doctor I’ve ever seen, even the emergency room, has always asked me if I’ve been 15 to see a therapist, if I need to see one, but [] I don’t have coverage and I don’t have 16 any money to pay”). 17 Plaintiff argues she should not be penalized for failing to pursue treatment 18 she could not afford. P. Mem. at 10; see Regennitter v. Comm’r, 166 F.3d 1294, 19 1296 (9th Cir. 1999) (citing Smolen, 80 F.3d at 1284) (“[W]e have proscribed the 20 rejection of a claimant’s complaints for lack of treatment when the record 21 establishes that the claimant could not afford it.”); Gamble v. Chater, 68 F.3d 319, 22 321 (9th Cir. 1995) (“[A] disabled claimant cannot be denied benefits for failing to 23 obtain medical treatment that would ameliorate his condition if he cannot afford 24 that treatment.”). But here, plaintiff had affordable treatment options available, 25 8 Mental health services have been a part of MediCal since its inception in 1965. See MediCal Policy Institute, Medi-Cal Facts (April 2001), available at 27 http://www.chcf.org/~/media/MEDIA%20LIBRARY%20Files/PDF/PDF%20M/P 28 DF%20MediCalMentalHealth.pdf. 26 17 1 and simply chose not avail herself of subsidized, effective, and available remedies. 2 See, e.g., AR at 1168 (referring plaintiff in April 2013 to Department of Mental 3 Health based on a six-out-of-six depression/anxiety score at Los Angeles County 4 USC Medical Center and not providing any evidence of plaintiff’s follow-up). 5 Plaintiff further argues she “may have failed to seek psychiatric treatment 6 for her mental condition, but it is a questionable practice to chastise one with a 7 mental impairment for the exercise of poor judgment in seeking rehabilitation.” 8 Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) (quoting Blankenship v. 9 Bowen, 874 F.2d 1116, 1124 (6th Cir. 1989)). But this is not a case where 10 plaintiff failed to recognize her need for treatment. Rather, the ALJ was not 11 persuaded by the reasons plaintiff gave for not following her doctors’ 12 recommendations. See AR at 648-50, 657, 785. The court “may not engage in 13 second-guessing” the ALJ’s well supported determinations. Thomas, 278 F.3d at 14 959; see Molina, 674 F.3d at 1113-14 (affirming credibility finding, in light of 15 plaintiff’s unpersuasive reasons for resisting treatment, where despite repeated 16 efforts of treating physicians plaintiff failed to comply with recommended 17 treatment). 18 Plaintiff’s gaps in treatment and her repeated failure to follow her 19 physicians’ recommendations to seek mental health care constitute another clear 20 and convincing reason for finding plaintiff less than fully credible. 21 E. Plaintiff’s Minimal Work History Before the Onset of Her Alleged Pain 22 Was a Clear and Convincing Reason for Discounting Her Credibility 23 The ALJ noted plaintiff had a poor work record. AR at 658. The ALJ 24 found plaintiff worked for “only five years of her adult life,” which “casts doubt 25 on the current claims of inability to work.” Id. An ALJ is required to consider a 26 work history when assessing credibility. See 20 C.F.R. § 404.1529(c)(3). 27 Evidence of a poor work history is a clear and convincing reason to discredit 28 18 1 plaintiff’s credibility. Thomas, 278 F.3d at 959 (upholding ALJ’s negative 2 credibility determination because, among other factors, plaintiff’s “work history 3 was spotty, at best” and she “has shown little propensity to work in her lifetime”). 4 Plaintiff was thirty-seven years old on her alleged disability onset date. AR 5 at 76, 806. She testified in March 2008 that her symptoms began approximately 6 eight years earlier when she would have been about twenty-nine, but did not 7 become disabling until 2007. Id. at 56. Plaintiff completed high school in 1989 8 and acquired a certificate for medical assisting in 2000. Id. at 53, 76, 1056. Yet, 9 her only experience as a medical assistant was a temporary position that lasted 10 only a few months. See id. at 55, 76. Plaintiff has past relevant work as a retail 11 sales clerk and pharmacy clerk. Id. at 98, 206, 1035-39, 1057. But all of her work 12 was part-time. Id. at 54-55. In all the years prior to the ALJ’s determination, 13 plaintiff had never worked a full-time job, and “there [were] many years she did 14 not work consistently while she was admittedly not disabled.” Id. at 658; see id. at 15 54-56. Plaintiff neither addresses this portion of the ALJ’s decision nor offers any 16 argument to undermine this reasoning. Plaintiff’s unexplained poor work history 17 is a clear and convincing reason to discount her credibility. Thomas, 278 F.3d at 18 959. 19 In sum, some of the reasons the ALJ gave for discounting plaintiff’s 20 credibility were not clear and convincing or were only partially clear and 21 convincing. But any errors were harmless because the ALJ provided multiple 22 reasons that were clear and convincing, including the lack of objective medical 23 support for plaintiff’s alleged nerve-related back impairments, the lack of evidence 24 of atrophy to support her claimed inactivity and deteriorating condition, the gaps 25 in her treatment for fibromyalgia, her failure to seek prescribed mental health 26 treatment, and her poor work record prior to the onset of her alleged disability. 27 See Batson, 359 F.3d at 1195-97 (finding ALJ error harmless, because the 28 19 1 remaining reasons and ultimate credibility determination were adequately 2 supported by substantial evidence in the record). Thus, the ALJ did not err in 3 finding plaintiff less than fully credible. 4 V. 5 CONCLUSION 6 IT IS THEREFORE ORDERED that Judgment shall be entered 7 AFFIRMING the decision of the Commissioner denying benefits, and dismissing 8 the complaint with prejudice. 9 10 11 DATED: September 28, 2016 12 13 SHERI PYM United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20

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