Lisa Cook v. Michael J. Astrue, No. 5:2012cv00184 - Document 14 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Paul L. Abrams. IT IS HEREBY ORDERED that: 1. plaintiff's request for reversal, or in the alternative, remand, is DENIED; and 2. the decision of the Commissioner is AFFIRMED. IT IS FURTHER ORDER ED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. **See Order for details.** (ch)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 LISA COOK, 13 Plaintiff, 14 15 v. 16 MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 17 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 12-184-PLA MEMORANDUM OPINION AND ORDER 18 19 I. 20 PROCEEDINGS 21 Plaintiff filed this action on February 10, 2012, seeking review of the Commissioner s denial 22 of her applications for Disability Insurance Benefits and Supplemental Security Income payments. 23 The parties filed Consents to proceed before the undersigned Magistrate Judge on March 6, 2012, 24 and March 12, 2012. Pursuant to the Court s Order, the parties filed a Joint Stipulation on October 25 22, 2012, that addresses their positions concerning the disputed issue in the case. The Court has 26 taken the Joint Stipulation under submission without oral argument. 27 / 28 / 1 II. 2 BACKGROUND 3 Plaintiff was born on September 24, 1967. [Administrative Record ( AR ) at 57.] She has 4 a tenth grade education [AR at 130], and past relevant work experience as a hostess, a labeler, 5 and a housekeeper. [AR at 36, 45, 131.] 6 Plaintiff filed an application for Disability Insurance Benefits on January 25, 2010, and 7 protectively filed an application for Supplemental Security Income payments on January 28, 2010, 8 alleging that she has been unable to work since January 31, 2005, due to seizures, headaches, 9 leg pain, hearing voices, and paranoia. [AR at 57-58, 62-66, 102-12, 156-61.] After her 10 applications were denied initially, plaintiff requested a hearing before an Administrative Law Judge 11 ( ALJ ). [AR at 62-66, 69-71.] A hearing was held on April 1, 2011, at which time plaintiff 12 appeared with counsel and testified on her own behalf. [AR at 32-49.] A vocational expert also 13 testified. [AR at 44-46.] On June 9, 2011, the ALJ determined that plaintiff was not disabled. [AR 14 at 17-22.] On December 9, 2011, the Appeals Council denied plaintiff s request for review. [AR 15 at 1-5, 9.] This action followed. 16 17 III. 18 STANDARD OF REVIEW 19 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner s 20 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial 21 evidence or if it is based upon the application of improper legal standards. Moncada v. Chater, 22 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 23 In this context, the term substantial evidence means more than a mere scintilla but less 24 than a preponderance -- it is such relevant evidence that a reasonable mind might accept as 25 adequate to support the conclusion. Moncada, 60 F.3d at 523; see also Drouin, 966 F.2d at 26 1257. When determining whether substantial evidence exists to support the Commissioner s 27 decision, the Court examines the administrative record as a whole, considering adverse as well 28 as supporting evidence. Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th 2 1 Cir. 1989). Where the evidence is susceptible to more than one rational interpretation, the Court 2 must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523; Andrews v. Shalala, 3 53 F.3d 1035, 1039-40 (9th Cir. 1995); Drouin, 966 F.2d at 1258. 4 5 IV. 6 THE EVALUATION OF DISABILITY 7 Persons are disabled for purposes of receiving Social Security benefits if they are unable 8 to engage in any substantial gainful activity owing to a physical or mental impairment that is 9 expected to result in death or which has lasted or is expected to last for a continuous period of at 10 least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin, 966 F.2d at 1257. 11 12 A. THE FIVE-STEP EVALUATION PROCESS 13 The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing 14 whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821, 15 828 n.5 (9th Cir. 1995, as amended April 9, 1996). In the first step, the Commissioner must 16 determine whether the claimant is currently engaged in substantial gainful activity; if so, the 17 claimant is not disabled and the claim is denied. Id. If the claimant is not currently engaged in 18 substantial gainful activity, the second step requires the Commissioner to determine whether the 19 claimant has a severe impairment or combination of impairments significantly limiting her ability 20 to do basic work activities; if not, a finding of nondisability is made and the claim is denied. Id. 21 If the claimant has a severe impairment or combination of impairments, the third step requires 22 the Commissioner to determine whether the impairment or combination of impairments meets or 23 equals an impairment in the Listing of Impairments ( Listing ) set forth at 20 C.F.R., Part 404, 24 Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. 25 If the claimant s impairment or combination of impairments does not meet or equal an impairment 26 in the Listing, the fourth step requires the Commissioner to determine whether the claimant has 27 sufficient residual functional capacity to perform her past work; if so, the claimant is not disabled 28 and the claim is denied. Id. The claimant has the burden of proving that she is unable to 3 1 perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a 2 prima facie case of disability is established. The Commissioner then bears the burden of 3 establishing that the claimant is not disabled, because she can perform other substantial gainful 4 work available in the national economy. The determination of this issue comprises the fifth and 5 final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 6 n.5; Drouin, 966 F.2d at 1257. 7 8 B. THE ALJ S APPLICATION OF THE FIVE-STEP PROCESS 9 In this case, at step one, the ALJ found that plaintiff had not engaged in any substantial 10 gainful activity since January 31, 2005, her alleged disability onset date. [AR at 19.]1 At step two, 11 the ALJ concluded that plaintiff has the severe impairment of schizophrenia, undifferentiated type. 12 [Id.] At step three, the ALJ determined that plaintiff does not have an impairment or combination 13 of impairments that meets or medically equals any of the impairments in the Listing. [Id.] The ALJ 14 further found that plaintiff retained the residual functional capacity ( RFC )2 to perform a full range 15 of work at all exertional levels but with the following nonexertional limitation: unable to work 16 around the general public. [AR at 20.] At step four, the ALJ concluded that plaintiff is capable 17 of performing her past relevant work as a labeler. [AR at 22.] Accordingly, the ALJ determined 18 that plaintiff has not been disabled at any time from January 31, 2005, through June 9, 2011, the 19 date of the decision. [Id.] 20 / 21 / 22 / 23 / 24 / 25 26 1 The ALJ concluded that plaintiff met the insured status requirements of the Social Security Act through March 31, 2006. [AR at 19.] 27 2 28 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. See Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 4 1 V. 2 THE ALJ S DECISION 3 Plaintiff contends that the ALJ improperly discounted plaintiff s credibility. [Joint Stipulation 4 ( JS ) at 4-11, 16.] As set forth below, the Court respectfully disagrees with plaintiff and affirms 5 the ALJ s decision. 6 To determine whether a claimant s testimony regarding subjective pain or symptoms is 7 credible, an ALJ must engage in a two-step analysis. Lingenfelter v. Astrue, 504 F.3d 1028, 8 1035-36 (9th Cir. 2007). First, the ALJ must determine whether the claimant has presented 9 objective medical evidence of an underlying impairment which could reasonably be expected to 10 produce the pain or other symptoms alleged. Id. (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 11 (9th Cir. 1991) (en banc)). Second, if the claimant meets the first test, the ALJ may only reject the 12 claimant s testimony about the severity of her symptoms upon (1) finding evidence affirmatively 13 suggesting that the claimant was malingering, or (2) offering specific, clear and convincing reasons 14 for doing so. See Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1999); see also Lingenfelter, 504 15 F.3d at 1036; Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). The factors to be 16 considered in weighing a claimant s credibility include: (1) the claimant s reputation for 17 truthfulness; (2) inconsistencies either in the claimant s testimony or between the claimant s 18 testimony and her conduct; (3) the claimant s daily activities; (4) the claimant s work record; and 19 (5) testimony from physicians and third parties concerning the nature, severity, and effect of the 20 symptoms of which the claimant complains. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th 21 Cir. 2002); see also 20 C.F.R. §§ 404.1529(c), 416.929(c). If properly supported, the ALJ s 22 credibility determination is entitled to great deference. See Green v. Heckler, 803 F.2d 528, 532 23 (9th Cir. 1986). 24 In a Function Report plaintiff completed on February 4, 2010, plaintiff stated that she can 25 perform chores to the extent that she pick[s] up after [she] use[s] things and do[es] laundry. 26 [AR at 143-50.] Plaintiff also stated that she goes out to the store once or twice a week for maybe 27 20 min[utes] at a time to buy food and cleaning stuff. [See AR at 146.] When asked whether 28 she has problems getting along with others, plaintiff stated I get nerves [sic], and when asked 5 1 how well she handles stress, she responded: I cant[ ]t[;] that makes me have a seizure. Hopefully 2 I had took [sic] my medicine. [AR at 148-49.] Plaintiff represented that she gets paranoid. [AR 3 at 149.] Also on February 4, 2010, plaintiff partially completed a Third Party Function Report in 4 which she made several additional statements about herself, including that she cook[s] insofar 5 as she prepares soup and sandwiches for herself daily. [AR at 135-42.] 6 In a February 6, 2010, Seizure Questionnaire, plaintiff stated that she has had seizures [a]ll 7 [her] life, but that the frequency of her seizures is not often. [AR at 151-53.] She also stated 8 that since 2003, she has been taking Gabapentin for her seizures, that her dosage of 800mg, 9 600mg, and 300mg has been the same for the last seven years, and that this medication controls 10 her seizures very well. [AR at 152.] Plaintiff represented that her last three seizures occurred 11 in 2004, 2009, and 2010.3 [AR at 151.] 12 At her April 1, 2011, hearing before the ALJ, plaintiff testified that she hears voices every 13 day. [AR at 41.] Plaintiff testified that hearing voices interferes with her ability to work because 14 while she is working, the voices start talking and saying that people are staring at [her], and then 15 she will look around[,] ... see people looking at [her], and ... get really paranoid. [AR at 37.] 16 Plaintiff further testified that the voices tell her to watch out for other people, and that she hears 17 them a lot more when she is at home alone. [AR at 42.] Plaintiff stated that she lives with her 18 grandmother, and that on a typical day, she [s]tay[s] inside the house and does not leave 19 because she get[s] paranoid when [she is] around a lot of people. [AR at 38, 40.] Plaintiff also 20 represented that [e]very now and then she sees flashes or shadows, but not that [often]. [AR 21 at 37.] When the ALJ asked plaintiff whether she takes any medication for these issues, plaintiff 22 responded that she takes Risperidone and Seroquel, but represented that her medication does 23 not take the voices away. [AR at 37, 41.] Plaintiff testified that she does not go to the grocery 24 store, and is not able to cook because of arthritis in her right hand, but can make soup[]. [AR 25 26 27 3 28 One of the dates plaintiff wrote on the Questionnaire was 20010, which the Court interprets as 2010. [See AR at 151.] 6 1 at 38.] As for her seizures, plaintiff stated that the last time she had a seizure was the month 2 before the hearing. [AR at 40.] 3 At step one of the two-step credibility analysis, the ALJ found that plaintiff s medically 4 determinable impairments could reasonably be expected to cause the alleged symptoms. [AR 5 at 20.] The ALJ nevertheless concluded that plaintiff s statements concerning the intensity, 6 persistence and limiting effects of these symptoms are not credible to the extent they are 7 inconsistent with [the ALJ s RFC findings for plaintiff]. [Id.] Thus, at step two, as the record 8 contains no evidence of malingering by plaintiff,4 the ALJ was required to offer specific, clear and 9 convincing reasons for rejecting her subjective symptom testimony. See Lingenfelter, 504 F.3d 10 at 1036. General findings are insufficient; rather, the ALJ must identify what testimony is not 11 credible and what evidence undermines the claimant s complaints. Reddick, 157 F.3d at 722 12 (quoting Lester, 81 F.3d at 834); see also Dodrill, 12 F.3d at 918. 13 The ALJ found plaintiff s subjective symptom testimony less than credible because she 14 found that: (1) plaintiff s seizures are well[-]controlled with medication ; (2) plaintiff made 15 inconsistent statements about her daily activities; and (3) there is no objective evidence in support 16 of the degree of mental symptoms that [plaintiff] has alleged. [AR at 20-21.]5 The Court finds that 17 while not all of the reasons the ALJ gave for discounting plaintiff s subjective symptom testimony 18 are legally adequate, two of the reasons are supported by substantial evidence. See Fair v. 19 Bowen, 885 F.2d 597, 604 (9th Cir. 1989). 20 First, the ALJ found that plaintiff s seizures do not constitute a severe impairment for the 21 purpose of [the ALJ s] decision because she found plaintiff s seizures to be well[-]controlled with 22 medication and that the objective medical evidence provides no documentation of any current 23 4 24 25 26 27 28 The ALJ made no finding that plaintiff was malingering, nor does the evidence suggest plaintiff was doing so. The ALJ did, however, note that in a March 15, 2010, Complete Psychiatric Evaluation, an examining psychiatrist suggested that [plaintiff] was a questionably reliable historian. [See AR at 21, 240-43.] 5 The Court notes that while the ALJ discounted plaintiff s subjective symptom testimony, she nevertheless gave plaintiff the benefit of the doubt with regard to plaintiff s subjective complaints of paranoia and hearing voices by including in plaintiff s RFC a restriction from working around the general public. [See AR at 21-22.] 7 1 seizure activity. [AR at 20.] In support of the first of these two findings, the ALJ cited plaintiff s 2 February 6, 2010, Seizure Questionnaire, noting that plaintiff stated therein that she has been on 3 the same dosage of Gabapentin for the last seven years and that her medication controls her 4 seizures very well. [See AR at 20, 152.] In addition, in finding that there is no objective medical 5 evidence of current seizure activity, the ALJ relied on a March 11, 2010, report of a neurological 6 examination performed on plaintiff. [See AR at 20, 235-38.] During that examination, the 7 physician found that [s]ensation is intact to light touch, pinprick, temperature and vibration 8 throughout upper and lower extremities ; [f]inger-nose-finger, rapid alternating movements, and 9 rhythmic-toe-tapping are performed well bilaterally without evidence of ataxia or dysmetria ; and 10 [plaintiff] stands and ambulates in a very stable manner. [See AR at 237.] The report also 11 indicates that plaintiff represented to the physician that she had been seizure free for over a 12 year. [AR at 235.] The examining physician concluded that plaintiff can occasionally lift 100 13 pounds and frequently lift 50 pounds ; can stand, sit, and walk for 6 hours of an 8-hour workday 14 with normal breaks ; and no longer has environmental restrictions with regard to heights and 15 machinery because she had been seizure-free for over a year. [AR at 237-38.] The ALJ noted 16 in her decision that the neurological examination was unremarkable, with no significant findings 17 on coordination, sensory, and gait testing, that plaintiff represented to the physician that she had 18 been seizure-free for over a year, and that the physician did not find that plaintiff has any 19 environmental restrictions. [AR at 20.] Plaintiff s concession that her medication is effective in 20 controlling her seizures, and the ALJ s finding that there is no objective evidence of currently 21 debilitating seizures, constitute clear and convincing reasons to reject plaintiff s allegation that she 22 is unable to work due to her seizures. See Lingenfelter, 504 F.3d at 1036. 23 Next, the ALJ employed ordinary techniques of credibility determination, supported by 24 substantial evidence in the record (see Fair, 885 F.2d at 604 n.5), to conclude that there were 25 [i]nconsistencies in the record with regard to plaintiff s statements concerning her daily activities. 26 [AR at 21.] Specifically, the ALJ cited plaintiff s February 4, 2010, Function Reports, in which 27 plaintiff stated that she prepares soup and sandwiches for herself daily, does laundry, and goes 28 shopping for food and cleaning supplies once to twice a week. [AR at 21, 137, 145-46.] The ALJ 8 1 found that these statements were [i]n direct contradiction with plaintiff s representations to an 2 examining psychiatrist on March 15, 2010 -- just a little over one month later -- that plaintiff is 3 unable to cook, perform household chores, run errands, and shop because her mind wanders. 4 [AR at 21, 241.] Substantial evidence supports the ALJ s discounting of plaintiff s credibility based 5 on these internal inconsistencies in plaintiff s statements concerning her daily activities. See 6 Thomas, 278 F.3d at 958-59; see also Fair, 885 F.2d at 604 n.5. 7 Finally, the ALJ concluded that there is no objective evidence in support of the degree of 8 mental symptoms that [plaintiff] has alleged. [AR at 21.] While not entirely accurate,6 the Court 9 has nevertheless determined that substantial evidence supports the ALJ s first and second 10 reasons to discount plaintiff s credibility concerning the degree to which her symptoms limit her 11 ability to work. It is not the Court s role to second-guess the ALJ s credibility determination. See 12 Fair, 885 F.2d at 604 ( Where, as here, the ALJ has made specific findings justifying a decision 13 to disbelieve an allegation [concerning a subjective symptom], and those findings are supported 14 by substantial evidence in the record, our role is not to second-guess that decision. ); Rollins v. 15 Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 16 The ALJ s first and second findings for rejecting plaintiff s subjective allegations were 17 supported by the record, and must be upheld. See Green, 803 F.2d at 532. Remand is not 18 warranted. 19 / 20 / 21 22 23 24 25 26 27 28 6 The Court notes, for instance, that plaintiff reported hearing voices and other auditory hallucinations fairly consistently between March 2010 and December 2010 [see AR at 240, 27475, 281, 289]; that treating and examining sources diagnosed her with schizophrenia, psychotic disorder, and antisocial personality disorder between February 2010 and December 2010 [see AR at 242, 271, 279, 286]; and that her treating sources prescribed her with Risperdal/Risperidone, Seroquel, and Abilify between March 2010 and March 2011. [See AR at 173-74, 274-75, 277-79.] Risperdal (whose generic name is Risperidone), Seroquel, and Abilify are all used to treat mental illnesses including schizophrenia or the symptoms of schizophrenia. See http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0000944/; http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001030/; http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0000221/. 9 1 VI. 2 CONCLUSION 3 4 5 6 7 8 IT IS HEREBY ORDERED that: 1. plaintiff s request for reversal, or in the alternative, remand, is denied; and 2. the decision of the Commissioner is affirmed. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. 9 10 DATED: October 31, 2012 PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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