Richard Payne v. Andrew Saul, No. 2:2019cv10246 - Document 17 (C.D. Cal. 2020)

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

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Richard Payne v. Andrew Saul Doc. 17 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 RICHARD P., ) ) Plaintiff, ) ) v. ) ) ANDREW SAUL, Commissioner of ) Social Security, ) ) Defendant. ) ___________________________________) NO. CV 19-10246-E MEMORANDUM OPINION 17 18 PROCEEDINGS 19 20 Plaintiff filed a complaint on December 3, 2019, seeking review 21 of the Commissioner’s denial of benefits. The parties consented to 22 proceed before a United States Magistrate Judge on April 13, 2020. 23 Plaintiff filed “Plaintiff’s Motion for Remand” on April 15, 2020. 24 Defendant filed a motion for summary judgment on May 15, 2020. 25 Plaintiff filed “Plaintiff’s Reply Brief” on May 21, 2020. 26 has taken the motions under submission without oral argument. 27 L.R. 7-15; “Order,” filed December 17, 2019. 28 /// The Court See Dockets.Justia.com 1 BACKGROUND 2 3 Plaintiff seeks disability insurance benefits, alleging an 4 inability to work beginning December 31, 2014, based primarily on 5 headaches and anxiety/panic attacks (Administrative Record (“A.R.”) 6 118-19, 208, 267).1 7 December 31, 2016 (A.R. 56; Plaintiff’s Motion at 2). Plaintiff’s insured status expired on 8 9 The Administrative Law Judge (“ALJ”) examined the medical record 10 and heard testimony from Plaintiff and a vocational expert (A.R. 54- 11 66, 108-31). 12 2016 because of, inter alia, “incredible migraines” and “panic attacks 13 and anxiety attacks that I couldn’t even go out to a restaurant 14 without passing out from anxiety . . .” (A.R. 118-19). Plaintiff testified that he could not work in 2015 and 15 16 The ALJ found that, through the date last insured, Plaintiff had 17 severe impairments, including migraine headaches and a mental 18 impairment (A.R. 56-59). 19 the date last insured, Plaintiff retained the residual functional 20 capacity to perform simple, unskilled medium work not requiring 21 contact with the public or more than occasional contact with coworkers 22 and supervisors (A.R. 56-59). 23 testimony exaggerated the intensity, persistence and limiting effects 24 of Plaintiff’s symptoms (A.R. 60-63). However, the ALJ also found that, through The ALJ believed that Plaintiff’s In reliance on the vocational 25 26 27 28 1 In the administrative proceedings, Plaintiff also alleged other impairments, but the discussion in Plaintiff’s motion appears to be confined exclusively to headaches and anxiety/panic attacks. 2 1 expert’s testimony, the ALJ determined that there existed significant 2 numbers of jobs performable by a person having the residual functional 3 capacity the ALJ found to exist (A.R. 64-66). 4 considered additional evidence newly submitted by Plaintiff, but 5 denied review (A.R. 7-9). The Appeals Council 6 7 STANDARD OF REVIEW 8 9 Under 42 U.S.C. section 405(g), this Court reviews the 10 Administration’s decision to determine if: (1) the Administration’s 11 findings are supported by substantial evidence; and (2) the 12 Administration used correct legal standards. 13 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 14 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 15 682 F.3d 1157, 1161 (9th Cir. 2012). 16 relevant evidence as a reasonable mind might accept as adequate to 17 support a conclusion.” 18 (1971) (citation and quotations omitted); see also Widmark v. 19 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). See Carmickle v. Substantial evidence is “such Richardson v. Perales, 402 U.S. 389, 401 20 21 If the evidence can support either outcome, the court may 22 not substitute its judgment for that of the ALJ. 23 Commissioner’s decision cannot be affirmed simply by 24 isolating a specific quantum of supporting evidence. 25 Rather, a court must consider the record as a whole, 26 weighing both evidence that supports and evidence that 27 detracts from the [administrative] conclusion. 28 /// 3 But the 1 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 2 quotations omitted). 3 4 Where, as here, the Appeals Council “considers new evidence in 5 deciding whether to review a decision of the ALJ, that evidence 6 becomes part of the administrative record, which the district court 7 must consider when reviewing the Commissioner’s final decision for 8 substantial evidence.” 9 “[A]s a practical matter, the final decision of the Commissioner Brewes v. Commissioner, 682 F.3d at 1163. 10 includes the Appeals Council’s denial of review, and the additional 11 evidence considered by that body is evidence upon which the findings 12 and decision complained of are based.” 13 omitted).2 14 the first time to the Appeals Council. Id. (citations and quotations Thus, this Court has reviewed the evidence submitted for 15 16 DISCUSSION 17 18 After consideration of the record as a whole, Defendant’s motion 19 is granted and Plaintiff’s motion is denied. 20 findings are supported by substantial evidence and are free from 21 /// The Administration’s 22 23 24 25 26 27 28 2 And yet, the Ninth Circuit sometimes had stated that there exists “no jurisdiction to review the Appeals Council’s decision denying [the claimant’s] request for review.” See, e.g., Taylor v. Commissioner, 659 F.3d 1228, 1233 (9th Cir. 2011); but see Smith v. Berryhill, 139 S. Ct. 1765 (2019) (court has jurisdiction to review Appeals Council’s dismissal of request for review as untimely); see also Warner v. Astrue, 859 F. Supp. 2d 1107, 1115 n.10 (C.D. Cal. 2012) (remarking on the seeming irony of reviewing an ALJ’s decision in the light of evidence the ALJ never saw). 4 1 material3 legal error. 2 3 4 I. The ALJ Did Not Err by Discounting the Credibility of Plaintiff’s Subjective Complaints. 5 6 An ALJ’s assessment of a claimant’s credibility is entitled to 7 “great weight.” Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th Cir. 8 1990); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). 9 here, an ALJ finds that the claimant’s medically determinable Where, as 10 impairments reasonably could be expected to cause some degree of the 11 alleged symptoms of which the claimant subjectively complains, any 12 discounting of the claimant’s complaints must be supported by 13 specific, cogent findings. 14 (9th Cir. 2010); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); 15 but see Smolen v. Chater, 80 F.3d 1273, 1282-84 (9th Cir. 1996) 16 (indicating that ALJ must offer “specific, clear and convincing” 17 reasons to reject a claimant’s testimony where there is no evidence of 18 “malingering”).4 See Berry v. Astrue, 622 F.3d 1228, 1234 An ALJ’s credibility finding “must be sufficiently 19 3 20 21 22 23 24 25 26 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 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 1090, 1102 (9th Cir. 2014); Ghanim v. Colvin, 763 F.3d 1154, 1163 n.9 (9th Cir. 2014); Garrison v. Colvin, 759 F.3d 995, 101415 & 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 (continued...) 5 1 specific to allow a reviewing court to conclude the ALJ rejected the 2 claimant’s testimony on permissible grounds and did not arbitrarily 3 discredit the claimant’s testimony.” 4 882, 885 (9th Cir. 2004) (internal citations and quotations omitted); 5 see also Social Security Ruling (“SSR”) 96-7p (explaining how to 6 assess a claimant’s credibility), superseded, SSR 16-3p (eff. Mar. 28, 7 2016).5 8 deeming Plaintiff’s subjective complaints less than fully credible. See Moisa v. Barnhart, 367 F.3d As discussed below, the ALJ stated sufficient reasons for 9 10 The ALJ determined that the objective medical evidence was 11 inconsistent with Plaintiff’s claimed inability to function (A.R. 59- 12 63). 13 objective medical evidence in discounting a claimant’s allegations of 14 disabling symptomatology. 15 (9th Cir. 2005) (“Although lack of medical evidence cannot form the 16 sole basis for discounting pain testimony, it is a factor the ALJ can 17 consider in his [or her] credibility analysis.”); Rollins v. 18 Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (same); see also 19 Carmickle v. Commissioner, 533 F.3d at 1161 (“Contradiction with the 20 medical record is a sufficient basis for rejecting the claimant’s An ALJ permissibly may rely in part on a lack of supporting See Burch v. Barnhart, 400 F.3d 676, 681 21 22 23 24 25 26 27 28 4 (...continued) 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. 5 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”). 6 1 subjective testimony”); SSR 16–3p (“[O]bjective medical evidence is a 2 useful indicator to help make reasonable conclusions about the 3 intensity and persistence of symptoms, including the effects those 4 symptoms may have on the ability to perform work-related activities 5 . . .”). 6 7 The ALJ also pointed out that Plaintiff advised one of his 8 treating physicians that his headaches were adequately controlled by 9 an over-the-counter medication (Advil) (A.R. 60; see also A.R. 608, 10 612). See Warre v. Commissioner, 439 F.3d 1001, 1006 (9th Cir. 2006) 11 (“Impairments that can be controlled effectively with medication are 12 not disabling for the purpose of determining eligibility for SSI 13 benefits.”) (citations omitted); see also 20 C.F.R. §§ 404.1529(c)(3), 14 416.929(c)(3) (effectiveness of medication and treatment is a relevant 15 factor in determining the severity of a claimant’s symptoms); 16 Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (a favorable 17 response to treatment can undermine a claimant’s complaints of 18 debilitating pain or other severe symptoms); Morgan v. Commissioner, 19 169 F.3d 595, 599 (9th Cir. 1999) (ALJ properly discredited claimant’s 20 subjective complaints by citing physician’s report that symptoms 21 improved with medication); Tidwell v. Apfel, 161 F.3d 599, 602 (9th 22 Cir. 1999) (ALJ did not err in considering that medication “aided” 23 claimant’s symptoms in assessing claimant’s credibility). 24 25 The ALJ also specifically observed that a treating physician had 26 discussed with Plaintiff the possibility of using more potent 27 medication for Plaintiff’s headaches, but Plaintiff declined to pursue 28 the matter (A.R. 60; see also A.R. 492, 612). 7 A claimant’s failure to 1 pursue more aggressive treatment for an allegedly disabling impairment 2 properly may cast doubt on a disability claimant’s credibility. 3 Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012); Fair v. Bowen, 4 885 F.2d 597, 603 (9th Cir. 1989). 5 conservative nature of a claimant’s treatment properly may factor into 6 the evaluation of the claimant’s subjective complaints. 7 Tommasetti v. Astrue, 533 F.3d at 1039-40; Parra v. Astrue, 481 F.3d 8 742, 751 (9th Cir. 2007), cert. denied, 552 U.S. 1141 (2008); 9 Osenbrock v. Apfel, 240 F.3d 1157, 1166 (9th Cir. 2001). See In the same vein, the relatively See 10 11 Additionally, the ALJ observed that, during the relevant time 12 period, Plaintiff did not consistently report to his treatment 13 providers the same intensity of symptoms claimed in Plaintiff’s 14 testimony (A.R. 62). 15 mental health symptoms, and, as already indicated, reported headaches 16 adequately controlled with Advil (A.R. 608, 612, 615, 618, 620). 17 Inconsistent reports of symptoms properly may undercut a claimant’s 18 credibility. 19 inconsistencies can adversely impact claimant’s credibility); Verduzco 20 v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) (inconsistences in a 21 claimant’s statements were among the “clear and convincing reasons” 22 for discounting claimant’s credibility). Indeed, Plaintiff sometimes reported improving See Molina v. Astrue, 674 F.3d at 1112 (claimant’s 23 24 It may be that not all of the ALJ’s stated reasons for 25 discounting Plaintiff’s subjective symptomatology are legally valid. 26 However, notwithstanding the invalidity of one or more of an ALJ’s 27 stated reasons, a court may uphold an ALJ’s credibility determination 28 where sufficient valid reasons have been stated. 8 See Carmickle v. 1 Commissioner, 533 F.3d at 1162-63. In the present case, the ALJ 2 stated sufficient valid reasons to allow this Court to conclude that 3 the ALJ discounted Plaintiff’s credibility on permissible grounds. 4 See Moisa v. Barnhart, 367 F.3d at 885. 5 the ALJ’s credibility determination. 6 App’x 823, 825 (9th Cir. 2007) (court will defer to Administration’s 7 credibility determination when the proper process is used and proper 8 reasons for the decision are provided); accord Flaten v. Secretary of 9 Health & Human Services, 44 F.3d 1453, 1464 (9th Cir. 1995).6 The Court therefore defers to See Lasich v. Astrue, 252 Fed. 10 11 12 II. Substantial Evidence Supports the ALJ’s Conclusion that Plaintiff was Not Disabled During the Relevant Time Period. 13 14 Substantial evidence supports the ALJ’s ultimate conclusion. 15 Apart from Plaintiff’s subjective complaints, little record evidence 16 suggests that Plaintiff’s impairments deprived Plaintiff of the 17 capacity to work for any continuous 12 month period between 18 December 31, 2014 and December 31, 2016.7 19 767 F.2d 586, 589 (9th Cir. 1985), cert. denied, 475 U.S. 1025 (1986) 20 (claimant must prove impairments prevented work for 12 continuous 21 months); see also Flaten v. Secretary of Health and Human Services, 44 See Krumpelman v. Heckler, 22 23 24 25 26 27 28 6 The Court should not and does not determine the credibility of Plaintiff’s testimony concerning his subjective symptomatology. Absent legal error, it is for the Administration, and not this Court, to do so. See Magallanes v. Bowen, 881 F.2d 747, 750, 755–56 (9th Cir. 1989). 7 Although the Administrative Record is lengthy, many of the documents in the record postdate the relevant time period and many of the documents within the relevant time period were copied into the record more than once. 9 1 F.3d at 1458 (where claimants apply for benefits after the expiration 2 of their insured status based on a current disability, the claimants 3 “must show that the current disability has existed continuously since 4 some time on or before the date their insured status lapsed”). 5 6 Significantly, no physician opined that Plaintiff was ever 7 totally disabled during the relevant time period. See Matthews v. 8 Shalala, 10 F.3d 678, 680 (9th Cir. 1993) (in upholding the 9 Administration’s decision, the Court emphasized: “None of the doctors 10 who examined [claimant] expressed the opinion that he was totally 11 disabled” or “implied that [claimant] was precluded from all work 12 activity”) (emphasis original); accord Curry v. Sullivan, 925 F.2d 13 1127, 1130 n.1 (9th Cir. 1990). 14 opined that Plaintiff could work during the relevant time period (A.R. 15 137-39). Non-examining state agency physicians 16 17 The vocational expert testified that a person with the residual 18 functional capacity the ALJ found to have existed could perform jobs 19 existing in significant numbers (A.R. 125-29). 20 relied on this testimony in finding Plaintiff not disabled. 21 Johnson v. Shalala, 60 F.3d 1428, 1435-36 (9th Cir. 1995); Barker v. 22 Secretary, 882 F.2d 1474, 1478-80 (9th Cir. 1989); Martinez v. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 10 The ALJ properly See 1 Heckler, 807 F.2d 771, 775 (9th Cir. 1986).8 2 To the extent the evidence of record is conflicting, the ALJ 3 4 properly resolved the conflicts. See Treichler v. Commissioner, 775 5 F.3d 1090, 1098 (9th Cir. 2014) (court “leaves it to the ALJ” to 6 resolve conflicts and ambiguities in the record). 7 uphold the administrative decision when the evidence “is susceptible 8 to more than one rational interpretation.” 9 F.3d 1035, 1039-40 (9th Cir. 1995). The Court must Andrews v. Shalala, 53 The Court will uphold the ALJ’s 10 rational interpretation of the evidence in the present case 11 notwithstanding any conflicts in the record. 12 /// 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 23 8 24 25 26 27 28 Hypothetical questions posed to a vocational expert need not include all conceivable limitations that a favorable interpretation of the record might suggest to exist – only those limitations the ALJ finds to exist. See, e.g., Bayliss v. Barnhart, 427 F.3d 1211, 1217-18 (9th Cir. 2005); Rollins v. Massanari, 261 F.3d at 857; Magallanes v. Bowen, 881 F.2d at 756-57; Martinez v. Heckler, 807 F.2d at 773-74. Here, the hypothetical question posed to the vocational expert included all limitations the ALJ found to exist. 11 1 CONCLUSION 2 3 4 For all of the foregoing reasons,9 Plaintiff’s motion for remand is denied and Defendant’s motion for summary judgment is granted. 5 6 LET JUDGMENT BE ENTERED ACCORDINGLY. 7 8 DATED: June 2, 2020. 9 10 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 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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