Gina Y. Villareal v. Nancy A. Berryhill, No. 2:2018cv03332 - Document 30 (C.D. Cal. 2019)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Sheri Pym. IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits, and dismissing the complaint with prejudice. (sbou)
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Gina Y. Villareal v. Nancy A. Berryhill Doc. 30 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 GINA V., 12 13 14 15 16 17 18 ) ) Plaintiff, ) ) v. ) ) ) ANDREW M. SAUL, Commissioner of ) Social Security Administration, ) ) Defendant. ) ) ) ) Case No. CV 18-3332-SP MEMORANDUM OPINION AND ORDER 19 I. 20 INTRODUCTION 21 On April 20, 2018, plaintiff Gina V. filed a complaint against defendant, the 22 Commissioner of the Social Security Administration (“Commissioner”), seeking a 23 review of a denial of supplemental security income (“SSI”). The parties have fully 24 briefed the matters in dispute, and the court deems the matter suitable for 25 adjudication without oral argument. 26 Plaintiff presents one disputed issue for decision, whether the Administrative 27 Law Judge (“ALJ”) properly considered plaintiff’s subjective symptom testimony. 28 1 Dockets.Justia.com 1 Memorandum in Support of Plaintiff’s Complaint (“P. Mem.”) at 5-11; see 2 Memorandum in Support of Defendant’s Answer (“D. Mem.”) at 2-11. 3 Having carefully studied the parties’ memoranda on the issue in dispute, the 4 Administrative Record (“AR”), and the decision of the ALJ, the court concludes 5 that, as detailed herein, the ALJ properly considered plaintiff’s testimony. 6 Consequently, the court affirms the decision of the Commissioner denying 7 benefits. 8 II. 9 FACTUAL AND PROCEDURAL BACKGROUND 10 Plaintiff, who was 34 years old on the alleged disability onset date, 11 completed high school through the eleventh grade. AR at 63, 97. Plaintiff has no 12 past relevant work. Id. at 81. 13 Plaintiff had filed three prior applications for SSI on June 13, 2006, August 14 31, 2007, and October 6, 2010, all of which were denied at the initial level.1 Id. at 15 98. 16 On October 8, 2013, plaintiff filed a fourth application for SSI, alleging an 17 onset date of June 15, 1999 due to bipolar disorder, hypothyroidism, and a lower 18 back injury. Id. at 97. The Commissioner denied plaintiff’s application initially, 19 after which he filed a request for a hearing. Id. at 112-16, 120-21. 20 On September 14, 2016, plaintiff, represented by counsel, appeared and 21 testified at a hearing before the ALJ. Id. at 59-89. The ALJ also heard testimony 22 from Howard J. Goldfarb, a vocational expert. Id. at 81-87. On November 1, 23 2016, the ALJ denied plaintiff’s claim for benefits. Id. at 37-47. 24 25 Plaintiff filed a request for hearing after the denial of his second application but the ALJ dismissed the request after plaintiff failed to appear at the hearing. AR 27 at 92-93. Petitioner then filed a request for review, which was denied by the 28 Appeals Council as untimely. Id. at 95-96. 26 1 2 1 Applying the well-known five-step sequential evaluation process, the ALJ 2 found, at step one, that plaintiff had not engaged in substantial gainful activity 3 since October 8, 2013, the application date. Id. at 39. 4 At step two, the ALJ found plaintiff suffered from the following severe 5 impairments: hypothyroidism; lumbar spine degenerative disc disease and 6 spondylosis; cervical spine degenerative disc disease; hypertension with sinus 7 tachycardia; chronic obstructive pulmonary disease (“COPD”); asthma with 8 dyspnea; hypoxia; emphysema; hyperventilation syndrome; diabetes mellitus; 9 hypoglycemia; bipolar disorder; major depressive disorder; mood disorder; 10 schizophrenia; polysubstance dependence; borderline personality disorder; and 11 anxiety disorder. Id. 12 At step three, the ALJ found plaintiff’s impairments, whether individually or 13 in combination, did not meet or medically equal one of the listed impairments set 14 forth in 20 C.F.R. part 404, Subpart P, Appendix 1 (the “Listings”). Id. at 40. 15 The ALJ then assessed plaintiff’s residual functional capacity (“RFC”),2 and 16 determined she had the RFC to perform less than the full range of medium work, 17 with the limitations that plaintiff could: lift, carry, push, and pull 50 pounds 18 occasionally and 25 pounds frequently; stand and walk six hours in an eight-hour 19 work day; sit six hours in an eight-hour workday; engage in postural activities such 20 as climbing, balancing, stooping, kneeling, crouching, and crawling on a frequent 21 basis; and have occasional interaction with the general public. Id. at 41. The ALJ 22 precluded plaintiff from concentrated exposure to pulmonary irritants such as 23 24 Residual functional capacity is what a claimant can do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 115526 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 assesses the 27 claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 28 n.2 (9th Cir. 2007). 2 3 1 fumes, odors, dust, and gases. Id. 2 The ALJ found, at step four, that plaintiff had no past relevant work. Id. at 3 46. 4 At step five, considering plaintiff’s age, education, work experience, and 5 RFC, the ALJ found there were jobs that existed in significant numbers in the 6 national economy that plaintiff could perform, including packer, laborer in stores, 7 and production assembler. Id. Consequently, the ALJ concluded plaintiff did not 8 suffer from a disability as defined by the Social Security Act. Id. at 47. 9 Plaintiff filed a timely request for review of the ALJ’s decision, which was 10 denied by the Appeals Council. Id. at 1-4. The ALJ’s decision stands as the final 11 decision of the Commissioner. 12 III. 13 STANDARD OF REVIEW 14 This court is empowered to review decisions by the Commissioner to deny 15 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 16 Administration must be upheld if they are free of legal error and supported by 17 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 18 (as amended). But if the court determines that the ALJ’s findings are based on 19 legal error or are not supported by substantial evidence in the record, the court may 20 reject the findings and set aside the decision to deny benefits. Aukland v. 21 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 22 1144, 1147 (9th Cir. 2001). 23 “Substantial evidence is more than a mere scintilla, but less than a 24 preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such 25 “relevant evidence which a reasonable person might accept as adequate to support 26 a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 27 F.3d at 459. To determine whether substantial evidence supports the ALJ’s 28 4 1 finding, the reviewing court must review the administrative record as a whole, 2 “weighing both the evidence that supports and the evidence that detracts from the 3 ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be 4 affirmed simply by isolating a specific quantum of supporting evidence.’” 5 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 6 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 7 the ALJ’s decision, the reviewing court “‘may not substitute its judgment for that 8 of the ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 9 1992)). 10 IV. 11 DISCUSSION 12 Plaintiff argues the ALJ impermissibly rejected her subjective symptom 13 testimony. P. Mem. at 5-11. Specifically, plaintiff contends the ALJ’s reasons for 14 discounting her testimony were not supported by substantial evidence. Id. 15 The ALJ must make specific credibility findings, supported by the record. 16 Social Security Ruling (“SSR”) 96-7p.3 To determine whether testimony 17 concerning symptoms is credible, the ALJ engages in a two-step analysis. 18 Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, the ALJ 19 must determine whether a claimant produced objective medical evidence of an 20 underlying impairment “‘which could reasonably be expected to produce the pain 21 or other symptoms alleged.’” Id. at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 22 341, 344 (9th Cir. 1991) (en banc)). Second, if there is no evidence of 23 24 25 26 27 28 “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). 3 5 1 malingering, an “ALJ can reject the claimant’s testimony about the severity of her 2 symptoms only by offering specific, clear and convincing reasons for doing so.” 3 Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Burrell v. Colvin, 775 F.3d 4 1133, 1136-37 (9th Cir. 2014). The ALJ may consider several factors in weighing 5 a claimant’s credibility, including: (1) ordinary techniques of credibility 6 evaluation such as a claimant’s reputation for lying; (2) the failure to seek 7 treatment or follow a prescribed course of treatment; and (3) a claimant’s daily 8 activities. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); Bunnell, 9 947 F.2d at 346-47. 10 At the first step, the ALJ here found plaintiff’s medically determinable 11 impairments could reasonably be expected to cause the symptoms alleged. AR at 12 41. At the second step, because the ALJ did not find any evidence of malingering, 13 the ALJ was required to provide clear and convincing reasons for discounting 14 plaintiff’s testimony. The ALJ found plaintiff’s testimony to be not entirely 15 credible because: (1) the objective evidence did not support her allegations; (2) 16 she received conservative treatment; (3) she failed to comply with her treatment 17 plan; and (4) her daily activities were inconsistent with her allegations. See id. at 18 42-45. 19 At the hearing, plaintiff testified that she suffered from, among other things, 20 chronic lower back pain, anxiety, “thyroidism,” diabetes, and emphysema, and was 21 considered a schizophrenic. See id. at 65-67, 77. Plaintiff testified due to her 22 lower back pain, she could only sit for about 20 minutes and stand for about 20 23 minutes. See id. at 63-64. Plaintiff also testified that it was hard to be around other 24 people, she had a lot of anxiety because of her thyroid, and she got overwhelmed 25 easily. See id. at 65-67. Plaintiff did not believe she could perform even simple 26 work because it hurt to stand, her pace was too slow, and she could not stay 27 focused. Id. at 75. Plaintiff testified that she could cook, shop, and walk a mile, 28 6 1 and during a typical day, she walked around, watched television, and sat. See id. at 2 63-64, 78. 3 Plaintiff also made other statements concerning her symptoms. In a 4 December 2013 Function Report, plaintiff reported she could prepare meals, do 5 housework when “feeling good,” went outside everyday, and could shop. See id. at 6 220-21. On a daily basis, plaintiff engaged in reading, writing, singing, drawing, 7 and watching television. Id. at 222. Plaintiff reported that she enjoyed spending 8 time with her family. See id. Plaintiff indicated her impairments affected her 9 ability to, among other things, lift, squat, walk, sit, kneel, reach, talk, complete 10 tasks, and concentrate. Id. at 223. At the July 2014 consultative examination, 11 plaintiff told the examining physician she could only sit for five minutes or stand 12 and walk for five minutes. Id. at 340. 13 The ALJ’s first reason for an adverse credibility finding was plaintiff’s 14 alleged sitting and standing limitations were inconsistent with the objective 15 findings. Id. at 45; see Rollins v. Massanari, 261 F.3d 853, 856-57 (9th Cir. 2001) 16 (the lack of objective medical evidence to corroborate pain allegations is one 17 factor, in conjunction with others, the ALJ may consider in his or her credibility 18 determination). The ALJ acknowledged an August 2015 MRI of the cervical spine 19 reflected degenerative osteophytic changes with 1-2mm impingement on the thecal 20 sac, imaging of the lumbar spine showed moderate to advanced degenerative 21 changes, and the consultative examiner observed reduced range of motion in the 22 back. See AR at 42; see also id. at 432, 439. But the ALJ noted there was no 23 indication that these impairments required significant functional limitations. The 24 few treatment records containing physical examinations reflect normal or minimal 25 objective findings. The consultative examiner observed plaintiff had a negative 26 straight leg raising test; palpation along the spinous process did not elicit pain or 27 evidence of spasm; and plaintiff’s motor function, strength, and gait were normal. 28 7 1 See id. at 342-43. During other physical examinations, physicians observed 2 plaintiff had full range of motion in the neck, no tenderness, no difficulty walking, 3 and otherwise normal findings.4 See, e.g., id. at 30, 374, 380, 384, 458. As such, 4 the ALJ’s finding that the objective medical evidence did not support plaintiff’s 5 alleged physical limitations was a clear and convincing reason supported by 6 substantial evidence for discounting her testimony.5 7 The second reason cited by the ALJ for discounting plaintiff’s testimony was 8 she received conservative treatment for her back pain. Id at 42; see Parra v. 9 Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (“[E]vidence of conservative treatment is 10 sufficient to discount a claimant’s testimony regarding severity of an impairment.”) 11 (internal quotation marks and citation omitted). Plaintiff argues she did not receive 12 conservative treatment for her psychiatric impairments. P. Mem. at 7. But the ALJ 13 only cited conservative treatment for plaintiff’s back pain as a basis for the adverse 14 credibility finding. See AR at 42. The ALJ noted plaintiff was only treated with 15 pain medication. Contrary to the ALJ’s findings, it does not appear physicians 16 prescribed any course of treatment for plaintiff’ back pain, much less prescription 17 pain medication. In March 2013, plaintiff indicated to the emergency room nurse 18 she took Norco, but no treatment note in the record reflects such a prescription and 19 20 Although plaintiff alleged an onset date of June 15, 1999, the ALJ’s decision 21 focused on the period from the application date forward. See AR at 39. Other than 22 three sets of treatment notes, plaintiff did not submit medical records from the period prior to the application date. See id. at 275-311. During the March and 23 August 2013 emergency room visits, plaintiff complained of back pain, but other 24 than a finding of pain with range of motion, the physicians did not indicate any objective findings. See id. at 299. 25 4 The ALJ also found the record only supported mild to moderate mental limitations. See AR at 43-44. Plaintiff does not discuss these findings and only 27 argues the ALJ may not reject his subjective complaints of pain based on lack of 28 objective medical evidence. 26 5 8 1 the emergency room treatment note similarly contains no notation prescribing pain 2 medication. See AR at 300. Instead, the hospital provided plaintiff standard 3 discharge instructions regarding back pain, instructing her, among other things, to 4 rest, avoid prolonged sitting, and take acetaminophen or ibuprofen as needed. Id. 5 at 302-03. In July 2014 and August 2015, plaintiff was neither taking any 6 medication for her back pain nor receiving any other form of treatment such as 7 physical therapy. See id. at 341, 423. Consequently, although there was no 8 evidence to support the ALJ’s finding that plaintiff’s back pain was treated with 9 pain medication, the ALJ’s underlying finding that plaintiff’s testimony should be 10 discounted because she was treated conservatively was supported by substantial 11 evidence. Plaintiff’s back pain was so mild that her physicians chose not to even 12 prescribe pain medication to treat it. 13 Third, the ALJ cited plaintiff’s failure to comply with her treatment plan as a 14 basis for an adverse credibility finding. See id. at 42-44; Tommasetti, 533 F.3d at 15 1039. The record contains substantial evidence of non-compliance. When plaintiff 16 was hospitalized in August 2015 and February 2016 for respiratory issues, it was 17 due to the fact that she failed to take her medication. See id. at 42-43, 382, 407, 18 421. Plaintiff also failed to take her medication on several other occasions that did 19 not result in hospitalization. See id. at 356, 358, 364. Indeed, when plaintiff took 20 her medication as prescribed, her symptoms were well-controlled. See, e.g., id. at 21 76, 333, 362; Warre v. Comm’r, 439 F.3d 1001, 1006 (9th Cir. 2006) 22 (“Impairments that can be controlled effectively with medication are not disabling 23 for purposes of determining eligibility for SSI benefits.”). 24 Finally, the ALJ discounted plaintiff’s testimony because her activities of 25 daily living were inconsistent with her alleged symptoms. See AR at 43-44; 26 Valentine v. Astrue, 574 F.3d 685, 693 (9th Cir. 2009) (the ALJ properly 27 discounted plaintiff’s credibility because his daily activities suggested his claims 28 9 1 about the severity of his limitations were exaggerated); Thomas v. Barnhart, 278 2 F.3d 947, 958-59 (9th Cir. 2002) (in making a credibility determination, an ALJ 3 may consider inconsistencies between a claimant’s testimony and conduct). 4 Plaintiff testified she could only sit and stand for 20 minutes at a time and told the 5 consultative examiner she could only sit, stand, and walk for five minutes. See AR 6 at 63-64, 340. Notwithstanding the fact that these statements were inconsistent 7 with each other, her statement that she could only walk for five minutes was 8 inconsistent with her testimony that she could walk a mile. See id. at 64; see also 9 Bunnell, 947 F.2d at 346 (an ALJ “may discredit claimant based on inconsistencies 10 in the testimony”). Moreover, plaintiff reported she went out everyday, which is 11 seemingly inconsistent with an ability to walk or stand for only five minutes at 12 time. See id. at 221. Thus, substantial evidence supported the ALJ’s findings that 13 at least some of plaintiff’s activities were inconsistent with the severity of the 14 limitations alleged. 15 In sum, the ALJ cited multiple clear and convincing reasons supported by 16 substantial evidence for finding plaintiff’s testimony less than entirely credible. As 17 such, the ALJ did not err in discounting plaintiff’s subjective allegations. 18 V. 19 CONCLUSION 20 IT IS THEREFORE ORDERED that Judgment shall be entered 21 AFFIRMING the decision of the Commissioner denying benefits, and dismissing 22 the complaint with prejudice. 23 24 DATED: September 30, 2019 25 SHERI PYM United States Magistrate Judge 26 27 28 10
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