Maria Flora Najera v. Nancy A Berryhill, No. 2:2018cv04384 - Document 29 (C.D. Cal. 2019)

Court Description: MEMORANDUM OPINION by Magistrate Judge Charles F. Eick. Plaintiff's motion for summary judgment is denied and Defendant's motion for summary judgment is granted. (sp)

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Maria Flora Najera v. Nancy A Berryhill Doc. 29 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 MARIA F.N., ) ) Plaintiff, ) ) v. ) ) NANCY A. BERRYHILL, DEPUTY ) COMMISSIONER FOR OPERATIONS, ) SOCIAL SECURITY, ) ) Defendant. ) ___________________________________) NO. CV 18-4384-E MEMORANDUM OPINION 17 18 PROCEEDINGS 19 20 Plaintiff filed a complaint on May 23, 2018, seeking review of 21 the Commissioner’s denial of benefits. The parties consented to 22 proceed before a United States Magistrate Judge on June 17, 2018. 23 Plaintiff filed a motion for summary judgment on November 29, 2018. 24 Defendant filed a motion for summary judgment on February 8, 2019. 25 The Court has taken the motions under submission without oral 26 argument. 27 /// 28 /// See L.R. 7-15; “Order,” filed May 29, 2018. Dockets.Justia.com 1 BACKGROUND 2 3 Following a previous remand,1 an Administrative Law Judge (“ALJ”) 4 examined the record and conducted a second hearing at which Plaintiff 5 and a vocational expert testified (Administrative Record (“A.R.”) 458- 6 89). The ALJ found that Plaintiff suffers from severe “lumbar spine 7 degeneration and left knee joint arthritis,” but retains the residual 8 functional capacity for a reduced range of light work (A.R. 461-62). 9 According to the ALJ, Plaintiff’s capacity includes an ability to 10 “stand and/or walk for four hours and sit for six hours during an 11 eight-hour workday . . . [and Plaintiff] does not require an assistive 12 device for walking” (A.R. 462). 13 testimony that her subjective symptomatology further reduces her 14 functional capacity (A.R. 463-66). The ALJ discounted Plaintiff’s 15 16 A vocational expert testified that a person having the residual 17 functional capacity the ALJ found to exist could perform Plaintiff’s 18 past relevant work as a sewing machine operator (A.R. 486-87). 19 ALJ relied on this testimony in finding Plaintiff not disabled (A.R. 20 467). The 21 22 STANDARD OF REVIEW 23 24 25 Under 42 U.S.C. section 405(g), this Court reviews the Administration’s decision to determine if: (1) the Administration’s 26 27 28 1 In Najera v. Colvin, CV 16-2442-E, this Court reversed in part a previous denial of benefits and remanded the matter for further administrative proceedings. 2 1 findings are supported by substantial evidence; and (2) the 2 Administration used correct legal standards. 3 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 4 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 5 682 F.3d 1157, 1161 (9th Cir. 2012). 6 relevant evidence as a reasonable mind might accept as adequate to 7 support a conclusion.” 8 (1971) (citation and quotations omitted); see also Widmark v. 9 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). See Carmickle v. Substantial evidence is “such Richardson v. Perales, 402 U.S. 389, 401 10 11 If the evidence can support either outcome, the court may 12 not substitute its judgment for that of the ALJ. 13 Commissioner’s decision cannot be affirmed simply by 14 isolating a specific quantum of supporting evidence. 15 Rather, a court must consider the record as a whole, 16 weighing both evidence that supports and evidence that 17 detracts from the [administrative] conclusion. But the 18 19 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 20 quotations omitted). 21 22 DISCUSSION 23 24 After consideration of the record as a whole, Defendant’s motion 25 is granted and Plaintiff’s motion is denied. 26 findings are supported by substantial evidence and are free from 27 /// 28 /// 3 The Administration’s 1 material2 legal error. Plaintiff’s contrary arguments are unavailing. 2 3 I. Substantial Evidence Supports the Conclusion Plaintiff Can Work. 4 5 A social security claimant bears the burden of “showing that a 6 physical or mental impairment prevents [her] from engaging in any of 7 [her] previous occupations.” 8 (9th Cir. 1987); accord Bowen v. Yuckert, 482 U.S. 137, 146 n.5 9 (1987). Sanchez v. Secretary, 812 F.2d 509, 511 Plaintiff must prove her impairments prevented her from 10 working for twelve continuous months. See Krumpelman v. Heckler, 767 11 F.2d 586, 589 (9th Cir. 1985), cert. denied, 475 U.S. 1025 (1986). 12 Substantial evidence supports the conclusion that Plaintiff failed to 13 carry her burden in this case. 14 relevant evidence that “a reasonable mind might accept as adequate to 15 support [the] conclusion” that Plaintiff was not disabled from all 16 employment through the date of the ALJ’s decision. 17 Perales, 402 U.S. at 401 (9th Cir. 2006). The Administrative Record contains See Richardson v. 18 19 Dr. Payam Moazzaz, a consultative examining orthopedic surgeon, 20 opined Plaintiff has a residual functional capacity even greater than 21 the capacity the ALJ found to exist (A.R. 263). 22 furnishes substantial evidence supporting the conclusion Plaintiff can 23 work. 24 (examining physician’s opinion based on independent clinical findings Dr. Moazzaz’ opinion See Orn v. Astrue, 495 F.3d 625, 631-32 (9th Cir. 2007) 25 26 2 27 28 The harmless error rule applies to the review of administrative decisions regarding disability. See Garcia v. Commissioner, 768 F.3d 925, 932-33 (9th Cir. 2014); McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011). 4 1 constitutes substantial evidence to support a disability 2 determination); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 3 2001) (same). 4 5 Non-examining state agency physicians also opined Plaintiff has a 6 residual functional capacity greater than the capacity the ALJ found 7 to exist (A.R. 65, 73, 84, 94). 8 opinions lend additional support to the ALJ’s findings. 9 v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (where the opinions of 10 non-examining physicians do not contradict “all other evidence in the 11 record” an ALJ properly may rely on these opinions); Curry v. 12 Sullivan, 925 F.2d 1127, 1130 n.2 (9th Cir. 1990). These non-examining physicians’ See Andrews 13 14 Medical testing, including x-rays and MRIs, suggest no more than 15 mild problems with Plaintiff’s back and left knee (A.R. 262, 286-87, 16 294, 297, 307, 322-25, 399-401, 406-08, 416-17, 739-40, 750). 17 Furthermore, examination reports reflect Plaintiff’s ability to walk 18 without an assistive device and with a “normal gait” (A.R. 260, 263, 19 852). 20 21 The vocational expert testified that a person with the residual 22 functional capacity the ALJ found to exist could perform Plaintiff’s 23 past relevant work as a sewing machine operator (A.R. 486-87). 24 testimony furnishes substantial evidence that there exist significant 25 numbers of jobs Plaintiff can perform. 26 F.2d 1474, 1478-80 (9th Cir. 1989); Martinez v. Heckler, 807 F.2d 771, 27 775 (9th Cir. 1986); see generally Johnson v. Shalala, 60 F.3d 1428, 28 1435-36 (9th Cir. 1995) (ALJ properly may rely on vocational expert to 5 This See Barker v. Secretary, 882 1 identify jobs claimant can perform); 42 U.S.C. § 423(d)(2)(A); 20 2 C.F.R. §§ 404.1520, 416.920. 3 4 To the extent the evidence of record is conflicting, the ALJ 5 properly resolved the conflicts. See Treichler v. Commissioner, 775 6 F.3d 1090, 1098 (9th Cir. 2014) (court “leaves it to the ALJ” to 7 resolve conflicts and ambiguities in the record). 8 uphold the administrative decision when the evidence “is susceptible 9 to more than one rational interpretation.” The Court must Andrews v. Shalala, 53 10 F.3d at 1039-40. The Court will uphold the ALJ’s rational 11 interpretation of the evidence in the present case notwithstanding any 12 conflicts in the record. 13 14 15 II. The ALJ did not Materially Err in Discounting Plaintiff’s Subjective Complaints. 16 17 Plaintiff challenges the legal sufficiency of the ALJ’s stated 18 reasons for discounting Plaintiff’s testimony concerning her 19 subjective symptomatology. The Court discerns no material error. 20 21 An ALJ’s assessment of a claimant’s credibility is entitled to 22 “great weight.” Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th Cir. 23 1990); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). 24 here, an ALJ finds that the claimant’s medically determinable 25 impairments reasonably could be expected to cause some degree of the 26 alleged symptoms of which the claimant subjectively complains, any 27 discounting of the claimant’s complaints must be supported by 28 specific, cogent findings. Where, as See Berry v. Astrue, 622 F.3d 1228, 1234 6 1 (9th Cir. 2010); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); 2 but see Smolen v. Chater, 80 F.3d 1273, 1282-84 (9th Cir. 1996) 3 (indicating that ALJ must offer “specific, clear and convincing” 4 reasons to reject a claimant’s testimony where there is no evidence of 5 “malingering”).3 6 specific to allow a reviewing court to conclude the ALJ rejected the 7 claimant’s testimony on permissible grounds and did not arbitrarily 8 discredit the claimant’s testimony.” 9 882, 885 (9th Cir. 2004) (internal citations and quotations omitted); An ALJ’s credibility finding “must be sufficiently See Moisa v. Barnhart, 367 F.3d 10 see also Social Security Ruling (“SSR”) 96-7p (explaining how to 11 assess a claimant’s credibility), superseded, SSR 16-3p (eff. Mar. 28, 12 2016).4 13 deeming Plaintiff’s subjective complaints less than fully credible. 14 /// As discussed below, the ALJ stated sufficient reasons for 15 16 17 18 19 20 21 22 23 24 3 In the absence of an ALJ’s reliance on evidence of “malingering,” most recent Ninth Circuit cases have applied the “clear and convincing” standard. See, e.g., Leon v. Berryhill, 880 F.3d 1041, 1046 (9th Cir. 2017); Brown-Hunter v. Colvin, 806 F.3d 487, 488-89 (9th Cir. 2015); Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014); Treichler v. Commissioner, 775 F.3d at 1102; Ghanim v. Colvin, 763 F.3d 1154, 1163 n.9 (9th Cir. 2014); Garrison v. Colvin, 759 F.3d 995, 1014-15 & n.18 (9th Cir. 2014); see also Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting earlier cases). In the present case, the ALJ’s findings are sufficient under either standard, so the distinction between the two standards (if any) is academic. 4 25 26 27 28 The appropriate analysis under the superseding SSR is substantially the same as the analysis under the superseded SSR. See R.P. v. Colvin, 2016 WL 7042259, at *9 n.7 (E.D. Cal. Dec. 5, 2016) (stating that SSR 16-3p “implemented a change in diction rather than substance”) (citations omitted); see also Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (suggesting that SSR 16-3p “makes clear what our precedent already required”). 7 1 The ALJ stressed that, in numerous respects, the objective 2 medical evidence fails to support the claimed severity of Plaintiff’s 3 subjective symptoms (A.R. 463-66). 4 part on a lack of supporting objective medical evidence in discounting 5 a claimant’s allegations of disabling symptomology. 6 Barnhart, 400 F.3d 676, 681 (2005) (“Although lack of medical evidence 7 cannot form the sole basis for discounting pain testimony, it is a 8 factor the ALJ can consider in his [or her] credibility analysis.”); 9 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (same); see An ALJ permissibly may rely in See Burch v. 10 also Carmickle v. Commissioner, 533 F.3d at 1161 (“Contradiction with 11 the medical record is a sufficient basis for rejecting the claimant’s 12 subjective testimony”); Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 13 2007), cert. denied, 552 U.S. 1141 (2008) (subjective knee pain 14 properly discounted where laboratory tests showed knee function within 15 normal limits); SSR 16–3p (“[O]bjective medical evidence is a useful 16 indicator to help make reasonable conclusions about the intensity and 17 persistence of symptoms, including the effects those symptoms may have 18 on the ability to perform work-related activities . . .”). 19 inconsistencies between subjective symptom complaints and objective 20 medical evidence cannot be the sole basis for discounting a claimant’s 21 complaints, Burch v. Barnhart, 400 F.3d at 681, the ALJ did not 22 discount Plaintiff’s complaints solely on the basis that the 23 complaints were inconsistent with the objective medical evidence. Although 24 25 As the ALJ also indicated, Plaintiff’s testimony was inconsistent 26 with the observations of third party examiners (A.R. 464, 466). 27 Plaintiff testified she must use a cane whenever she walks (A.R. 54, 28 554). Yet, as previously indicated, third party examiners reported 8 1 Plaintiff had a “normal gait” and walked without the need for an 2 assistive device (A.R. 260, 263, 852). 3 claimant’s assertions which are inconsistent with the observations of 4 third parties. 5 1999); Copeland v. Bowen, 861 F.2d 536, 541 (9th Cir. 1988); see also 6 SSR 16-3p at *7. An ALJ properly may discount a See Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 7 8 9 As the ALJ also indicated, the treatment received by Plaintiff has been relatively conservative and there evidently was a lengthy (3 10 year) gap in her treatment (A.R. 463-66). At times, Plaintiff took 11 only relatively mild medications for her allegedly disabling back and 12 knee pain (A.R. 259, 335, 356).5 13 relatively conservative nature of a claimant’s treatment properly may 14 factor into the evaluation of a claimant’s credibility. 15 Tommasetti v. Astrue, 533 F.3d at 1039-40; Parra v. Astrue, 481 F.3d 16 at 751; Osenbrock v. Apfel, 240 F.3d 1157, 1166 (9th Cir. 2001); see 17 also Burch v. Barnhart, 400 F.3d at 681 (unexplained failure to seek 18 medical treatment may discredit a claimant’s allegations of disabling 19 symptoms); Chavez v. Department of Health and Human Services, 103 F.3d 20 849, 853 (9th Cir. 1996) (failure to seek “further treatment” for back Observations regarding the See 21 22 5 23 24 25 26 27 28 One doctor did recommend surgery on Plaintiff’s left knee (A.R. 398). However, the ALJ properly rejected the validity of this recommendation, stating legally sufficient reasons for doing so (A.R. 465). See Smolen v. Chater, 80 F.3d at 1285 (ALJ may reject uncontradicted opinion of a treating physician by stating “clear and convincing” reasons that are based on substantial evidence in the record); Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987) (ALJ may reject the contradicted opinion of a treating physician by stating “specific, legitimate” reasons for doing so that are based on substantial evidence in the record). 9 1 problem among specific findings justifying rejection of claimant’s 2 excess pain testimony). 3 4 The ALJ also pointed out evidence that Plaintiff’s pain may be 5 adequately controlled with medication (A.R. 464; see also A.R. 845). 6 See Warre v. Commissioner, 439 F.3d 1001, 1006 (9th Cir. 2006) 7 (“Impairments that can be controlled effectively with medication are 8 not disabling for the purpose of determining eligibility for SSI 9 benefits.”) (citations omitted); see also 20 C.F.R. §§ 10 404.1529(c)(3), 416.929(c)(3) (effectiveness of medication and 11 treatment is a relevant factor in determining the severity of a 12 claimant’s symptoms); Tommasetti v. Astrue, 533 F.3d at 1040 (a 13 favorable response to treatment can undermine a claimant’s complaints 14 of debilitating pain or other severe symptoms); Morgan v. 15 Commissioner, 169 F.3d 595, 599 (9th Cir. 1999) (ALJ properly 16 discredited claimant’s subjective complaints by citing physician’s 17 report that symptoms improved with medication); Tidwell v. Apfel, 161 18 F.3d 599, 602 (9th Cir. 1999) (ALJ did not err in considering that 19 medication “aided” claimant’s symptoms in assessing claimant’s 20 credibility). 21 22 To the extent one or more of the ALJ’s stated reasons for 23 discounting Plaintiff’s credibility may have been invalid, the Court 24 nevertheless would uphold the ALJ’s credibility determination under 25 the circumstances presented. 26 at 1162-63 (despite the invalidity of one or more of an ALJ’s stated 27 reasons, a court properly may uphold the ALJ’s credibility 28 determination where sufficient valid reasons have been stated). See Carmickle v. Commissioner, 533 F.3d 10 In 1 the present case, the ALJ stated sufficient valid reasons to allow 2 this Court to conclude that the ALJ discounted Plaintiff’s credibility 3 on permissible grounds. 4 Court therefore defers to the ALJ’s credibility determination. 5 Lasich v. Astrue, 252 Fed. App’x 823, 825 (9th Cir. 2007) (court will 6 defer to Administration’s credibility determination when the proper 7 process is used and proper reasons for the decision are provided); 8 accord Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 9 1464 (9th Cir. 1995).6 10 /// 11 /// 12 /// 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// See Moisa v. Barnhart, 367 F.3d at 885. The See 24 25 26 27 28 6 The Court need not and does not determine whether Plaintiff’s subjective complaints are credible. Some evidence suggests that those complaints may be credible. However, it is for the Administration, and not this Court, to evaluate the credibility of witnesses. See Magallanes v. Bowen, 881 F.2d 747, 750, 755-56 (9th Cir. 1989). 11 1 CONCLUSION 2 3 For all of the foregoing reasons,7 Plaintiff’s motion for summary 4 judgment is denied and Defendant’s motion for summary judgment is 5 granted. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: March 4, 2019. 10 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 7 25 26 27 28 The Court has considered and rejected each of Plaintiff’s arguments. Neither Plaintiff’s arguments nor the circumstances of this case show any “substantial likelihood of prejudice” resulting from any error allegedly committed by the Administration. See generally McLeod v. Astrue, 640 F.3d 881, 887-88 (9th Cir. 2011) (discussing the standards applicable to evaluating prejudice). 12

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