Stephanie Lynn Saboe v. Michael J Astrue, No. 5:2013cv00286 - Document 20 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Oswald Parada: Based on the foregoing, IT IS THEREFORE ORDERED, that judgment be entered affirming the decision of the Commissioner of Social Security and dismissing this action with prejudice. (See Order for further details) (yl)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 STEPHANIE LYNNE SABOE, 12 13 14 15 v. CAROLYN W. COLVIN,1 Acting Commissioner of Social Security, Defendant. 16 17 Plaintiff, ) Case No. EDCV 13-286-OP ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) The Court2 now rules as follows with respect to the disputed issues listed in 18 the Joint Stipulation ( JS ).3 19 / / / 20 21 1 22 Carolyn W. Colvin, the current Acting Commissioner of Social Security, is hereby substituted as the Defendant herein. See Fed. R. Civ. P. 25(d)(1). 23 2 24 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the United States Magistrate Judge in the current action. (See ECF Nos. 9, 10.) 25 3 As the Court stated in its Case Management Order, the decision in this case is made on the basis of the pleadings, the Administrative Record, and the Joint 27 Stipulation filed by the parties. In accordance with Rule 12(c) of the Federal Rules 28 of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g). (ECF No. 7 at 3.) 26 1 1 I. 2 DISPUTED ISSUES 3 As reflected in the Joint Stipulation, the disputed issues raised by Plaintiff as 4 the grounds for reversal and/or remand are as follows: 5 (1) Whether the ALJ properly considered Plaintiff s credibility; 6 (2) Whether the ALJ properly considered lay witness testimony; and 7 (3) Whether the ALJ properly considered relevant vocational factors. 8 (JS at 4, 10-11.) 9 II. 10 STANDARD OF REVIEW 11 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s decision 12 to determine whether the Commissioner s findings are supported by substantial 13 evidence and whether the proper legal standards were applied. DeLorme v. 14 Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means more 15 than a mere scintilla but less than a preponderance. Richardson v. Perales, 402 16 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Desrosiers v. Sec y of 17 Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial 18 evidence is such relevant evidence as a reasonable mind might accept as adequate 19 to support a conclusion. Richardson, 402 U.S. at 401 (citation omitted). The 20 Court must review the record as a whole and consider adverse as well as 21 supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). 22 Where evidence is susceptible of more than one rational interpretation, the 23 Commissioner s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 24 (9th Cir. 1984). 25 III. 26 DISCUSSION 27 A. The ALJ s Findings. 28 The ALJ found that Plaintiff has the severe impairments of degenerative 2 1 joint disease of her right knee, impairment of her bilateral hips status post total 2 right hip replacement, migraines, and hypothyroidism. (Administrative Record 3 ( AR ) at 46.) The ALJ found Plaintiff had the residual functional capacity 4 ( RFC ) to perform a range of light work with the following limitations: lift 5 and/or carry twenty pounds occasionally and ten pounds frequently; stand and/or 6 walk for two hours out of an eight-hour workday; sit for six hours out of an eight7 hour workday; alternate positions in forty-five minute intervals for one to five 8 minutes; occasionally use her right lower extremity for forceful pushing and 9 pulling of foot controls; occasionally stoop, bend, crouch, and crawl; no fine or 10 gross manipulation; no exposure to extreme cold, flashing or blinking lights, 11 unprotected heights, and dangerous machinery; and can sustain attention, 12 concentration, persistence, and pace in two-hour blocks of time. (Id. at 47-48.) 13 Relying on the testimony of a vocational expert ( VE ), the ALJ concluded 14 that Plaintiff is capable of performing her past relevant work as a secretary. (Id. at 15 51.) 16 B. The ALJ Properly Considered Plaintiff s Credibility. 17 Plaintiff contends the ALJ failed to provide the necessary clear and 18 convincing reasons for rejecting Plaintiff s credibility. The Court disagrees. (JS at 19 4-7.) 20 An ALJ s assessment of pain severity and claimant credibility is entitled to 21 great weight. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. 22 Heckler, 779 F.2d 528, 531 (9th Cir. 1986). When, as here, an ALJ s disbelief of a 23 claimant s testimony is a critical factor in a decision to deny benefits, the ALJ must 24 make explicit credibility findings. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th 25 Cir. 1990); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981); see also 26 Albalos v. Sullivan, 907 F.2d 871, 874 (9th Cir. 1990) (an implicit finding that 27 claimant was not credible is insufficient). 28 Once a claimant has presented medical evidence of an underlying 3 1 impairment which could reasonably be expected to cause the symptoms alleged, 2 the ALJ may only discredit the claimant s testimony regarding subjective pain by 3 providing specific, clear, and convincing reasons for doing so. Lingenfelter v. 4 Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). An ALJ s credibility finding must 5 be properly supported by the record and sufficiently specific to ensure a reviewing 6 court that the ALJ did not arbitrarily reject a claimant s subjective testimony. 7 Bunnell v. Sullivan, 947 F.2d 341, 345-47 (9th Cir. 1991). An ALJ may properly 8 consider testimony from physicians . . . concerning the nature, severity, and 9 effect of the symptoms of which [claimant] complains, and may properly rely on 10 inconsistencies between claimant s testimony and claimant s conduct and daily 11 activities. See, e.g., Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002) 12 (citation omitted). An ALJ also may consider [t]he nature, location, onset, 13 duration, frequency, radiation, and intensity of any pain or other symptoms; 14 [p]recipitating and aggravating factors ; [t]ype, dosage, effectiveness, and 15 adverse side-effects of any medication ; [t]reatment, other than medication ; 16 [f]unctional restrictions ; [t]he claimant s daily activities ; unexplained, or 17 inadequately explained, failure to seek treatment or follow a prescribed course of 18 treatment ; and ordinary techniques of credibility evaluation, in assessing the 19 credibility of the allegedly disabling subjective symptoms. Bunnell, 947 F.2d at 20 346-47; see also Soc. Sec. Ruling 96-7p; 20 C.F.R. 404.1529 (2005); Morgan v. 21 Comm r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) (ALJ may 22 properly rely on plaintiff s daily activities, and on conflict between claimant s 23 testimony of subjective complaints and objective medical evidence in the record); 24 Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1998) (ALJ may properly rely on 25 weak objective support, lack of treatment, daily activities inconsistent with total 26 disability, and helpful medication); Johnson v. Shalala, 60 F.3d 1428, 1432 (9th 27 Cir. 1995) (ALJ may properly rely on the fact that only conservative treatment had 28 been prescribed); Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (ALJ may 4 1 properly rely on claimant s daily activities and the lack of side effects from 2 prescribed medication). 3 Here, the ALJ provided clear and convincing reasons for finding Plaintiff s 4 subjective complaints of impairment less than credible. First, the ALJ properly 5 relied on inconsistencies within Plaintiff s testimony. See Johnson, 60 F.3d at 6 1434; Thomas, 278 F.3d at 958-59 (ALJ may properly rely on inconsistencies 7 between claimant s testimony and claimant s conduct and daily activities). The 8 ALJ noted that Plaintiff claimed she has not looked for work because her doctor 9 took [her] off work and put [her] on disability. (AR at 14, 48.) However, the 10 record indicates that Plaintiff initially stopped working because of stress and that 11 her placement on disability was at her own request, not at the suggestion of her 12 doctors. (Id. at 203, 269.) The ALJ also observed that Plaintiff s receipt of 13 unemployment compensation benefits is facially inconsistent with her allegation of 14 disability. (Id. at 49.) This is because in order to receive unemployment benefits, 15 she would have had to certify that she was able to work and looking for work. 16 (Id.); but see Carmickle v. Comm r, Soc. Sec. Admin., 533 F.3d 1155, 1161-62 17 (9th Cir. 2008) (social security plaintiff s application for unemployment benefits 18 not valid reason for discounting credibility where record unclear as to whether 19 plaintiff stated he was available for full-time or part-time work). 20 In addition, the ALJ noted the discrepancies between the objective medical 21 evidence and Plaintiff s subjective complaints of impairment. (AR at 48-50.) Of 22 course, an ALJ may not reject a claimant s subjective complaints based solely on 23 a lack of objective medical evidence to fully corroborate the alleged severity of 24 pain. Bunnell, 947 F.2d at 345 (emphasis added). However, such a factor 25 remains relevant. Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005) (ALJ 26 may properly rely on inconsistency between claimant s subjective complaints and 27 objective medical findings); Morgan, 169 F.3d at 600 (ALJ may properly rely on 28 conflict between claimant s testimony of subjective complaints and objective 5 1 medical evidence in the record). The ALJ s conclusion is supported by substantial 2 evidence. The record supports Plaintiff s history of mental health problems (AR at 3 196-218, 371-96), but there is no support for a finding that they limited Plaintiff s 4 ability to work. In fact, Plaintiff s treating sources indicated that her condition was 5 improving and well controlled. (Id. at 196, 371, 373.) To the extent that her 6 psychiatrist placed her on disability for her mental health impairments, it was at the 7 behest of Plaintiff. (Id. at 203.) The record also evidences Plaintiff s physical 8 impairments (id. at 219-47, 297-309, 320, 323-35, 337-69, 400-18, 421-51, 4539 62, 466-95, 497-530, 532-35, 539-49, 553-59), but does not support more severe 10 limitations than those assessed by the ALJ. None of Plaintiff s treating sources 11 indicated in any way that Plaintiff was unable to perform work activities.4 12 Meanwhile, findings by the agency orthopedic and psychiatric consultative 13 physicians supported the ALJ s conclusions regarding Plaintiff s ability to work. 14 (Id. at 252-84, 289-94.) Because the ALJ did not rely solely on the lack of medical 15 evidence supporting Plaintiff s complaints to reject her credibility, this too was a 16 clear and convincing reason. Accordingly, this too was a clear and convincing 17 reason for rejecting Plaintiff s credibility. 18 Based on the foregoing, the Court finds that the ALJ stated clear and 19 convincing reasons, supported by substantial evidence in the record, for rejecting 20 Plaintiff s credibility. Thus, relief is not warranted on this claim. 21 C. The ALJ Properly Considered the Lay Witness Testimony. 22 Plaintiff claims that the ALJ failed to properly consider the statement of 23 Plaintiff s friend, Brenda Stettler. (JS at 10-11.) The Court does not agree. 24 25 4 There is a single reference to disability by Anita I. Lenz, M.D. on February 13, 2009. (AR at 235.) However, this reference does not have any 27 additional explanation and may be related to Plaintiff s personal desire to obtain 28 disability benefits, as evidenced by her request for disability from her mental health treating sources about five months prior to Dr. Lenz s notation. (Id. at 203.) 26 6 1 Ms. Stettler explained that Plaintiff cannot get comfortable, has pain when 2 she wakes up, and cannot walk around for long periods. (AR at 164, 166.) Ms. 3 Stettler further stated that Plaintiff has difficulty putting on her shoes and socks 4 due to her impairments, and can no longer play sports, go shopping, go to the 5 movies, or go out to dinner. (Id. at 164, 168.) Ms. Stettler estimated that Plaintiff 6 can lift ten pounds, stand for ten minutes, and walk half a block. (Id. at 168.) 7 According to Ms. Stettler, Plaintiff cannot bend. (Id.) 8 The ALJ rejected Mr. Figueroa s testimony, finding: 9 [Ms. Stettler s] claims appear exaggerated and are not supported 10 by objective evidence. The undersigned has read and considered the 11 opinions of Ms. Stettler and finds them credible to the extent they are 12 consistent with the decision herein. Ms. Stettler is the claimant s long 13 time friend and as such may have a quasi-familial interest in the claimant 14 receiving benefits herein. Ms. Stettler is not a medical doctor or other 15 qualified expert and thus cannot give a qualified opinion as to the 16 claimant s impairments or ability to perform work activity. 17 (Id. at 48-49.) 18 Title 20 C.F.R. §§ 404.1513(d) and 416.913(d) provides that, in addition to 19 medical evidence, the Commissioner may also use evidence from other sources to 20 show the severity of [an individual s] impairment(s) and how it affects [her] 21 ability to work, and the Ninth Circuit has repeatedly held that [d]escriptions by 22 friends and family members in a position to observe a claimant s symptoms and 23 daily activities have routinely been treated as competent evidence. 20 C.F.R. §§ 24 404.1513(d), 416.913(d); Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). 25 If the ALJ chooses to reject such evidence from other sources, he may not do so 26 without comment. Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). The 27 ALJ must provide reasons that are germane to each witness. Dodrill v. Shalala, 28 12 F.3d 915, 919 (9th Cir. 1993). 7 1 Here, the ALJ acknowledged Ms. Stettler s testimony and rejected it on the 2 basis of reasons that were germane to the witness. The Court does not consider the 3 persuasiveness of the ALJ s reasons for rejecting Ms. Stettler s testimony. Thus, 4 the ALJ fulfilled his duty to consider the evidence and provide sufficient reasons 5 for rejecting the third party evidence. There was no error. 6 D. The ALJ Properly Considered the Vocational Evidence. 7 Plaintiff argues that the ALJ failed to properly consider the material 8 vocational factors when finding that Plaintiff could perform her past relevant work 9 as a secretary. (JS at 12-14.) 10 First, Plaintiff argues that her past work as a secretary does not qualify as 11 past relevant work because she did not perform secretarial work for a long enough 12 period to satisfy the requirements of the Dictionary of Occupational Titles 13 ( DOT ). Plaintiff explains that she only performed secretarial work part-time for 14 a period of just eight months, while the DOT requires one to two years of 15 experience to gain sufficient skills to perform the job of secretary. (JS at 12-13.) 16 Work experience is considered relevant if it was done within the last fifteen 17 years, lasted long enough to learn to do it, and was substantial gainful activity. See 18 20 C.F.R. § 404.1565(a). In determining whether a claimant can engage in past 19 relevant work, the Commissioner can look to whether Plaintiff can perform that 20 work as previously performed or as defined by the DOT. Soc. Sec. Rul. 82-61. 21 Here, the vocational expert testified that in light of Plaintiff s RFC and work 22 history, she could perform her past work as a secretary as Plaintiff had actually 23 performed that position. (AR at 31.) Nowhere does Plaintiff contend that she had 24 insufficient time to learn the job of secretary as she previously performed that job. 25 Notably, the fact that Plaintiff was able to perform the job of secretary for a period 26 of eight months is evidence that she had sufficient time to learn the job as it was 27 performed under those circumstances. Accordingly, the evidence supports a 28 finding that Plaintiff s prior secretarial work was past relevant work and that 8 1 Plaintiff was able to perform that job as previously required. 2 In addition, Plaintiff argues that she could not perform her past work as a 3 secretary, which required her to sit eight hours a day, because the ALJ limited her 4 to sitting just six hours in an eight hour day. (JS at 13.) Plaintiff stated in a Work 5 History Report that her past job as a secretary required that she sit eight hours a 6 day. (AR at 151.) However, at the hearing before the ALJ Plaintiff stated that she 7 sat most of the day. (Id. at 26.) In addition, she did not correct the ALJ when 8 she characterized Plaintiff s previous work as allowing Plaintiff to sit for awhile 9 and stand for awhile. (Id. at 25.) Based on this testimony and the Residual 10 Functional Capacity assessed by the ALJ, the vocational expert testified that 11 Plaintiff would be able to perform her past work as secretary as it was previously 12 performed. (Id. at 31.) See Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993) 13 (vocational expert testimony useful at step four of the analysis). At this step of the 14 analysis, Plaintiff carries the burden of proving that she could not perform her past 15 relevant work. Burch, 400 F.3d at 679 (plaintiff carried the burden of proof at 16 steps one through four of the disability analysis). On this record, she failed to 17 carry that burden. 18 Finally, Plaintiff argues that the ALJ failed to credit the vocational expert s 19 testimony that Plaintiff could not perform her past work as a secretary if she was 20 required to alternate between sitting and standing every twenty minutes. (JS at 13.) 21 Plaintiff is correct that the vocational expert testified that an individual who needed 22 to alternate positions at twenty-minute intervals would not be able to perform 23 secretarial work. (AR at 31-32.) However, Plaintiff does not challenge the ALJ s 24 ultimate assessment of Plaintiff s RFC, which included the need to alternate 25 positions every forty-five minutes. (Id. at 30, 48.) Significantly, Plaintiff does not 26 offer any evidence to support a need to alternate positions every twenty minutes. 27 The ALJ was not required to account for a limitation that was not supported by the 28 record. Osenbrock v. Apfel, 240 F.3d 1157, 1164-65 (9th Cir. 2001) ( An ALJ is 9 1 free to accept or reject restrictions in a hypothetical question that are not supported 2 by substantial evidence. ). Based on the RFC including the need to alternate 3 positions every forty-five minutes, the vocational expert concluded that Plaintiff 4 would be able to perform her past work as a secretary. (Id. at 31.) Accordingly, 5 the vocational expert s opinions regarding the need to alternate positions at twenty 6 minute intervals was of no consequence to the ALJ s disability assessment. 7 IV. 8 ORDER 9 Based on the foregoing, IT IS THEREFORE ORDERED, that judgment be 10 entered affirming the decision of the Commissioner of Social Security and 11 dismissing this action with prejudice. 12 13 Dated: October 3, 2013 14 HONORABLE OSWALD PARADA United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
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