Kim Arnette William Saunders v. Nancy A. Berryhill et al, No. 2:2018cv06415 - Document 20 (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. (See document for details.) (sbou)
Download PDF
<![CDATA[
Kim Arnette William Saunders v. Nancy A. Berryhill et al Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 KIM A.W.S., ) ) Plaintiff, ) ) v. ) ) NANCY A. BERRYHILL, DEPUTY ) COMMISSIONER FOR OPERATIONS, ) SOCIAL SECURITY, ) ) Defendant. ) ___________________________________) NO. CV 18-6415-E MEMORANDUM OPINION 17 18 PROCEEDINGS 19 20 Plaintiff filed a complaint on July 25, 2018, seeking review of 21 the Commissioner’s denial of benefits. The parties consented to 22 proceed before a United States Magistrate Judge on August 20, 2018. 23 Plaintiff filed a motion for summary judgment on January 11, 2019. 24 Defendant filed a motion for summary judgment on February 11, 2019. 25 The Court has taken the motions under submission without oral 26 argument. 27 /// 28 /// See L.R. 7-15; “Order,” filed July 30, 2018. Dockets.Justia.com 1 BACKGROUND 2 In 2008, when Plaintiff was working in retail sales, Plaintiff 3 injured her left knee, and perhaps also her back, when she jumped down 4 three or four feet from a stuck elevator (Administrative Record 5 (“A.R.”) 262)). 6 retail sales in March of 2009, but “did not engage in any substantial 7 gainful activity” after January 24, 2010, and was fired in October of 8 2010 (A.R. 49-50, 66, 141, 149). 9 other retail jobs without success (A.R. 64-65, 238, 240, 258-59). Plaintiff apparently resumed working part time in In 2011 and 2012, Plaintiff sought 10 11 In 2015, Plaintiff filed an application for disability insurance 12 benefits, alleging she had been disabled since January 24, 2010 (A.R. 13 136). 14 61). Plaintiff’s last insured date was December 31, 2014 (A.R. 49, 15 16 An Administrative Law Judge (“ALJ”) reviewed the record and heard 17 testimony from Plaintiff and a vocational expert (A.R. 47-389). 18 ALJ found that, prior to December 31, 2014, Plaintiff had severe 19 “chronic low back pain [and] status post left knee arthroscopic 20 surgery,” but retained the residual functional capacity to perform 21 certain light work, including Plaintiff’s past relevant work as 22 generally performed (A.R. 49-53; see also A.R. 74-75 (vocational 23 expert’s testimony, which the ALJ adopted)). 24 denied review (A.R. 1-3). 25 /// 26 /// 27 /// 28 /// 2 The Appeals Council The 1 STANDARD OF REVIEW 2 3 Under 42 U.S.C. section 405(g), this Court reviews the 4 Administration’s decision to determine if: (1) the Administration’s 5 findings are supported by substantial evidence; and (2) the 6 Administration used correct legal standards. 7 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 8 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 9 682 F.3d 1157, 1161 (9th Cir. 2012). See Carmickle v. Substantial evidence is “such 10 relevant evidence as a reasonable mind might accept as adequate to 11 support a conclusion.” 12 (1971) (citation and quotations omitted); see also Widmark v. 13 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). Richardson v. Perales, 402 U.S. 389, 401 14 15 If the evidence can support either outcome, the court may 16 not substitute its judgment for that of the ALJ. 17 Commissioner’s decision cannot be affirmed simply by 18 isolating a specific quantum of supporting evidence. 19 Rather, a court must consider the record as a whole, 20 weighing both evidence that supports and evidence that 21 detracts from the [administrative] conclusion. But the 22 23 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 24 quotations omitted). 25 /// 26 /// 27 /// 28 /// 3 1 DISCUSSION 2 3 After consideration of the record as a whole, Defendant’s motion 4 is granted and Plaintiff’s motion is denied. The Administration’s 5 findings are supported by substantial evidence and are free from 6 material1 legal error. Plaintiff’s contrary arguments are unavailing. 7 8 9 I. Substantial Evidence Supports the Conclusion Plaintiff Could Work Prior to December 31, 2014. 10 11 A social security claimant bears the burden of “showing that a 12 physical or mental impairment prevents [her] from engaging in any of 13 [her] previous occupations.” 14 (9th Cir. 1987); accord Bowen v. Yuckert, 482 U.S. 137, 146 n.5 15 (1987). 16 working for twelve continuous months. 17 F.2d 586, 589 (9th Cir. 1985), cert. denied, 475 U.S. 1025 (1986). 18 Plaintiff also must prove that she became disabled prior to the 19 expiration of her insured status. 20 416(i)(3)(A); 20 C.F.R. 404.131; see also Vertigan v. Halter, 260 F.3d 21 1044, 1047 (9th Cir. 2001); Flaten v. Secretary of Health and Human 22 Services, 44 F.3d 1453, 1458 (9th Cir. 1995) (where claimants apply 23 for benefits after the expiration of their insured status based on a 24 current disability, the claimants “must show that the current Sanchez v. Secretary, 812 F.2d 509, 511 Plaintiff must prove her impairments prevented her from See Krumpelman v. Heckler, 767 See 42 U.S.C. § 416(i)(2)(C), 25 26 1 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 disability has existed continuously since some time on or before the 2 date their insured status lapsed”). 3 4 Substantial evidence supports the conclusion that Plaintiff 5 failed to carry her burden in this case. The Administrative Record 6 contains relevant evidence that “a reasonable mind might accept as 7 adequate to support [the] conclusion” that Plaintiff was not disabled 8 prior to December 31, 2014. 9 401 (9th Cir. 2006). See Richardson v. Perales, 402 U.S. at 10 11 Dr. Phillip A. Sobol, a treating orthopedic surgeon, opined that 12 Plaintiff could have stayed on her feet for seven hours during an 13 eight hour work day (A.R. 271). 14 been precluded from only heavy lifting and certain postural activities 15 (A.R. 270-71). 16 possessed considerably exceeded the capacity claimed by Plaintiff and 17 was very similar to (although not identical with) the capacity the ALJ 18 found to have existed (A.R. 50, 68-70, 270-71). 19 physician’s opinion “is generally afforded the greatest weight in 20 disability cases. . . .” 21 (9th Cir. 1991). Dr. Sobol believed Plaintiff to have The functional capacity Dr. Sobol believed Plaintiff A treating Tonapetyan v. Halter, 242 F.3d 1144, 1149 22 23 Dr. Azizollah Karamlou, a consultative examining internist, 24 opined that Plaintiff retained essentially the same residual 25 functional capacity the ALJ found to have existed (A.R. 325-26). 26 opinion furnishes substantial evidence supporting the conclusion 27 Plaintiff could work. 28 Cir. 2007) (examining physician’s opinion based on independent This See Orn v. Astrue, 495 F.3d 625, 631-32 (9th 5 1 clinical findings constitutes substantial evidence to support a non- 2 disability determination); Tonapetyan v. Halter, 242 F.3d at 1149 3 (same). 4 5 Non-examining state agency physicians also opined Plaintiff had a 6 residual functional capacity essentially equivalent to the capacity 7 the ALJ found to have existed (A.R. 82-87). 8 physicians’ opinions lend additional support to the ALJ’s findings. 9 See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (where the These non-examining 10 opinions of non-examining physicians do not contradict “all other 11 evidence in the record” an ALJ properly may rely on these opinions); 12 Curry v. Sullivan, 925 F.2d 1127, 1130 n.2 (9th Cir. 1990). 13 14 The vocational expert testified that a person with the residual 15 functional capacity the ALJ found to have existed could perform 16 Plaintiff’s past relevant work as generally performed (A.R. 74-75). 17 This testimony furnishes substantial evidence that there existed 18 significant numbers of jobs Plaintiff could have performed. 19 Barker v. Secretary, 882 F.2d 1474, 1478-80 (9th Cir. 1989); Martinez 20 v. Heckler, 807 F.2d 771, 775 (9th Cir. 1986); see generally Johnson 21 v. Shalala, 60 F.3d 1428, 1435-36 (9th Cir. 1995) (ALJ properly may 22 rely on vocational expert to identify jobs claimant can perform); 42 23 U.S.C. § 423(d)(2)(A); 20 C.F.R. §§ 404.1520, 416.920; see also Lewis 24 v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002) (a claimant is not 25 disabled if she can perform her past relevant work as she actually 26 performed it or as such work is generally performed). 27 /// 28 /// 6 See 1 To the extent the evidence of record is conflicting, the ALJ 2 properly resolved the conflicts. See Treichler v. Commissioner, 775 3 F.3d 1090, 1098 (9th Cir. 2014) (court “leaves it to the ALJ” to 4 resolve conflicts and ambiguities in the record). 5 uphold the administrative decision when the evidence “is susceptible 6 to more than one rational interpretation.” 7 F.3d at 1039-40. 8 interpretation of the evidence in the present case notwithstanding any 9 conflicts in the record. The Court must Andrews v. Shalala, 53 The Court will uphold the ALJ’s rational 10 11 12 II. The ALJ did not Materially Err in Discounting Plaintiff’s Subjective Complaints. 13 14 Plaintiff testified to subjective pain of allegedly disabling 15 severity (A.R. 63-64, 68-70). For example, she described her back 16 pains as “constant,” “stabbing, sharp pains” from “top to bottom” 17 (A.R. 63). 18 stated reasons for discounting Plaintiff’s subjective complaints. 19 Court discerns no material error. Plaintiff challenges the legal sufficiency of the ALJ’s The 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 7 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”).2 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).3 13 finding Plaintiff’s subjective complaints less than fully credible. 14 /// 15 /// As discussed below, the ALJ stated sufficient reasons for 16 17 18 19 20 21 22 23 24 2 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. 3 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”). 8 1 The ALJ stressed that, in numerous respects, the objective 2 medical evidence failed to support the claimed severity of Plaintiff’s 3 subjective symptoms (A.R. 51-53). 4 on a lack of supporting objective medical evidence in discounting a 5 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 10 also Carmickle v. Commissioner, 533 F.3d 1155, 1161 (9th Cir. 2008) 11 (“Contradiction with the medical record is a sufficient basis for 12 rejecting the claimant’s subjective testimony”); Parra v. Astrue, 481 13 F.3d 742, 750 (9th Cir. 2007), cert. denied, 552 U.S. 1141 (2008) 14 (subjective knee pain properly discounted where laboratory tests 15 showed knee function within normal limits); SSR 16–3p (“[O]bjective 16 medical evidence is a useful indicator to help make reasonable 17 conclusions about the intensity and persistence of symptoms, including 18 the effects those symptoms may have on the ability to perform 19 work-related activities . . .”). 20 subjective symptom complaints and objective medical evidence cannot be 21 the sole basis for discounting a claimant’s complaints, Burch v. 22 Barnhart, 400 F.3d at 681, the ALJ did not discount Plaintiff’s 23 complaints solely on the basis that the complaints were inconsistent 24 with the objective medical evidence. An ALJ permissibly may rely in part See Burch v. Although inconsistencies between 25 26 As the ALJ also pointed out, there were lengthy periods of time 27 during which Plaintiff sought no medical treatment for her allegedly 28 disabling pain (A.R. 51-52). An unexplained failure to seek frequent 9 1 medical treatment may discredit a claimant’s allegations of disabling 2 symptoms. 3 Burch v. Barnhart, 400 F.3d at 681; Batson v. Commissioner, 359 F.3d 4 1190, 1196 (9th Cir. 2004); Johnson v. Shalala, 60 F.3d at 1434; 5 accord Bunnel v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991); Fair v. 6 Bowen, 885 F.2d 597, 603-604 (9th Cir. 1989); see also Chavez v. 7 Department of Health and Human Serv., 103 F.3d 849, 853 (9th Cir. 8 1996) (failure to seek “further treatment” for back injury among 9 specific findings justifying rejection of claimant’s excess pain 10 See Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); testimony).4 11 12 The ALJ also noted that, on numerous occasions before and during 13 the period of alleged disability, Plaintiff had declined refills of 14 prescription pain medication (A.R. 52, 218, 226, 235, 244, 245). 15 Noncompliance with prescribed or recommended treatment can properly 16 suggest that a claimant’s symptoms have not been as severe as the 17 claimant has asserted. 18 (unexplained or inadequately explained failure to follow prescribed 19 course of treatment can cast doubt on claimant’s credibility); see 20 also Molina v. Astrue, 674 F.3d at 1113 (“We have long held that, in 21 assessing a claimant’s credibility the ALJ may properly rely on 22 unexplained or inadequately explained failure . . . to follow a See Fair v. Bowen, 885 F.2d at 603 23 4 24 25 26 27 28 Plaintiff attempted to explain the paucity of her treatment by saying she had been busy taking her mother and daughter to medical appointments and by saying that she had lacked insurance or Medi-Cal coverage during some periods of time (A.R. 62-63). The ALJ was not required to accept this explanation, however. See, e.g., Gutierrez v. Astrue, 2012 WL 1903433, at *9 (C.D. Cal. May 25, 2012). When asked whether she had tried “to seek low-cost or free clinics” in 2014, Plaintiff claimed not to recall (A.R. 63). 10 1 prescribed course of treatment”) (citations and quotations omitted); 2 SSR 16-3p (“if the individual fails to follow prescribed treatment 3 that might improve symptoms, we may find that the alleged intensity 4 and persistence of an individual’s symptoms are inconsistent with the 5 overall evidence of record”); Rouse v. Berryhill, 2017 WL 4404402, at 6 *16 (D.S.C. July 6, 2017), rejected on other grounds, 2017 WL 4348560 7 (D.S.C. Sept. 29, 2017) (court upheld ALJ’s discounting of the 8 plaintiff’s testimony concerning back pain, stating, inter alia, 9 “while pain medication was prescribed, the plaintiff declined refills, 10 indicating her pain may not have been as severe as alleged”). 11 12 The ALJ also noted that Plaintiff sought employment during the 13 period of alleged disability (A.R. 53). 14 consider the fact that Plaintiff held herself out as able to work in 15 2011 and 2012, years during which she now says she was unable to work. 16 See Copeland v. Bowen, 861 F.2d 536, 542 (9th Cir. 1988) (upholding 17 ALJ’s rejection of claimant’s credibility where claimant had accepted 18 unemployment insurance benefits “apparently considering himself 19 capable of work and holding himself out as available for work”); Bray 20 v. Commissioner of Social Security Admin., 554 F.3d 1219, 1227 (9th 21 Cir. 2009) (fact that a claimant has sought out employment weighs 22 against a finding of disability); see also Ghanim v. Colvin, 763 F.3d 23 at 1165 (“continued receipt” of unemployment benefits can cast doubt 24 on a claim of disability); but see Webb v. Barnhart, 433 F.3d 683, 688 25 (9th Cir. 2005) (“That Webb sought employment suggests no more than 26 that he was doing his utmost, in spite of his health, to support 27 himself”). 28 /// 11 The ALJ properly could 1 To the extent one or more of the ALJ’s stated reasons for 2 discounting Plaintiff’s credibility may have been invalid, the Court 3 nevertheless would uphold the ALJ’s credibility determination under 4 the circumstances presented. 5 at 1162-63 (despite the invalidity of one or more of an ALJ’s stated 6 reasons, a court properly may uphold the ALJ’s credibility 7 determination where sufficient valid reasons have been stated). 8 the present case, the ALJ stated sufficient valid reasons to allow 9 this Court to conclude that the ALJ discounted Plaintiff’s credibility See Carmickle v. Commissioner, 533 F.3d In 10 on permissible grounds. See Moisa v. Barnhart, 367 F.3d at 885. The 11 Court therefore defers to the ALJ’s credibility determination. 12 Lasich v. Astrue, 252 Fed. App’x 823, 825 (9th Cir. 2007) (court will 13 defer to Administration’s credibility determination when the proper 14 process is used and proper reasons for the decision are provided); 15 accord Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 16 1464 (9th Cir. 1995).5 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// See 24 25 26 27 28 5 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). 12 1 CONCLUSION 2 3 For all of the foregoing reasons,6 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 14, 2019. 10 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 6 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). 13
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
