Janet Lynn Elder v. Carolyn W. Colvin, No. 5:2015cv01374 - Document 19 (C.D. Cal. 2016)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen E. Scott. For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. (see document for details). (dro)
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Janet Lynn Elder v. Carolyn W. Colvin Doc. 19 1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JANET LYNN ELDER, 12 Plaintiff, 13 14 15 v. Case No. EDCV 15-1374-KES MEMORANDUM OPINION AND ORDER CAROLYN W. COLVIN, Acting Commissioner of Social Security, 16 Respondent. 17 18 Plaintiff Janet Lynn Elder appeals the final decision of the 19 Administrative Law Judge (“ALJ”) denying her application for Disability 20 Insurance Benefits (“DIB”). For the reasons discussed below, the Court 21 concludes that the ALJ gave clear and convincing reasons for discounting 22 Plaintiff’s credibility, and the ALJ gave at least one specific, germane reason 23 for rejecting lay witness testimony, rendering any error harmless. The ALJ’s 24 decision is therefore AFFIRMED. 25 /// 26 /// 27 /// 28 Dockets.Justia.com 1 I. 2 BACKGROUND 3 On June 12, 2012, Plaintiff filed an application for DIB, alleging 4 disability beginning on July 28, 2011. Administrative Record (“AR”) 142-49. 5 Plaintiff alleges that she is unable to work due to two fractures in her back, 6 high blood pressure, and a protruding disc. AR 145. On November 7, 2013, an ALJ conducted a hearing, at which Plaintiff, 7 8 who was represented by counsel, appeared and testified, as did a vocational 9 expert (“VE”) and a medical expert. AR 33-56. 10 On January 17, 2014, the ALJ issued a written decision denying 11 Plaintiff’s request for benefits. AR 12-22. The ALJ found that Plaintiff had 12 the severe impairments of obesity, lumbar strain, high blood pressure and 13 depression. AR 14. Notwithstanding her impairments, the ALJ concluded 14 that Plaintiff had the residual functional capacity (“RFC”) to perform “the full 15 range of light work” as defined in 20 C.F.R. § 404.1567(b). AR 16. Based on Plaintiff’s documented vocational background, her testimony, 16 17 and the VE’s testimony, the ALJ found that Plaintiff could perform her past 18 relevant work as a cashier II (Dictionary of Occupational Titles (“DOT”) code 19 211-462-010). AR 21. The ALJ thus found Plaintiff was not disabled. AR 22. 20 II. 21 ISSUES PRESENTED 22 The parties dispute whether the ALJ erred in: 23 (1) discounting Plaintiff’s testimony concerning the severity and limiting 24 effects of her pain; and (2) evaluating lay witness testimony from Plaintiff’s daughter. 25 26 /// 27 /// 28 /// 2 1 III. 2 DISCUSSION 3 A. The ALJ Gave Clear and Convincing Reasons for Discounting 4 Plaintiff’s Credibility. 5 Plaintiff claims that she suffers from back pain, was diagnosed with a 6 mild partial compression fracture of the vertebrae, and suffers from 7 fibromyalgia. Dkt. 16 at 8.1 Because of the pain, she can only walk for 10 8 minutes before needing a rest, and she is affected by bending, kneeling, 9 reaching, lifting, and twisting. AR 183-86. She alleges that walking too long 10 causes her back to swell and “feel[] on fire.” AR 186. Plaintiff contends that 11 the ALJ erred in assessing her credibility concerning the limiting effects of her 12 pain. Dkt. 16 at 3-11. 13 1. Applicable Law 14 An ALJ’s assessment of symptom severity and claimant credibility is 15 entitled to “great weight.” See Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 16 1989); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1986). “[T]he ALJ is 17 not required to believe every allegation of disabling pain, or else disability 18 benefits would be available for the asking, a result plainly contrary to 19 42 U.S.C. § 423(d)(5)(A).” Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 20 2012) (internal quotation marks omitted). 21 In evaluating a claimant’s subjective symptom testimony, the ALJ 22 engages in a two-step analysis. See Vasquez v. Astrue, 572 F.3d 586, 591 23 (9th Cir. 2009); Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). 24 “First, the ALJ must determine whether the claimant has presented objective 25 medical evidence of an underlying impairment [that] could reasonably be 26 27 1 All page citations are to the electronic CM/ECF pagination. 28 3 1 expected to produce the pain or other symptoms alleged.” Lingenfelter, 2 504 F.3d at 1036. If so, the ALJ may not reject a claimant’s testimony “simply 3 because there is no showing that the impairment can reasonably produce the 4 degree of symptom alleged.” Smolen v. Chater, 80 F.3d 1273, 1282 5 (9th Cir. 1996). 6 Second, if the claimant meets the first test, the ALJ may discredit the 7 claimant’s subjective symptom testimony only if he makes specific findings 8 that support the conclusion. Berry v. Astrue, 622 F.3d 1228, 1234 9 (9th Cir. 2010). Absent a finding or affirmative evidence of malingering, the 10 ALJ must provide “clear and convincing” reasons for rejecting the claimant’s 11 testimony. Lester, 81 F.3d at 834; Ghanim v. Colvin, 763 F.3d 1154, 1163 & 12 n.9 (9th Cir. 2014). The ALJ must consider a claimant’s work record, 13 observations of medical providers and third parties with knowledge of 14 claimant’s limitations, aggravating factors, functional restrictions caused by 15 symptoms, effects of medication, and the claimant’s daily activities. Smolen, 16 80 F.3d at 1283-84 & n.8. “Although lack of medical evidence cannot form 17 the sole basis for discounting pain testimony, it is a factor that the ALJ can 18 consider in his credibility analysis.” Burch v. Barnhart, 400 F.3d 676, 681 19 (9th Cir. 2005). 20 The ALJ may also use ordinary techniques of credibility evaluation, 21 such as considering the claimant’s reputation for lying and inconsistencies in 22 his statements or between his statements and his conduct. See Thomas v. 23 Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). 24 2. 25 Following the two-step process outlined above, the ALJ found as 26 Analysis follows: 27 The credibility of the claimant’s allegations regarding the 28 severity of her symptoms and limitations is diminished because 4 1 those allegations are greater than expected in light of the objective 2 evidence of record. Even if the claimant’s daily activities are truly 3 as limited as alleged, it is difficult to attribute that degree of 4 limitation to the claimant’s medical condition, in view of the 5 relatively benign medical evidence, discussed below. 6 AR 17. 7 The ALJ gave three clear and convincing reasons for discounting 8 Plaintiff’s credibility: (1) the “relatively benign” medical evidence that did not 9 support Plaintiff’s allegations concerning the severity of her pain; (2) despite 10 her alleged symptoms, Plaintiff engaged in a “somewhat normal level of daily 11 activity and interaction;” and (3) Plaintiff received routine, conservative, and 12 non-emergency treatment since the alleged onset date. AR 17-18. 13 14 15 a. The “relatively benign” medical evidence of record did not support Plaintiff’s allegations of disabling pain. The Court finds that the ALJ’s factual determination – that Plaintiff’s 16 alleged loss of function due to debilitating pain was not supported by objective 17 medical evidence in the record – is supported by substantial evidence. AR 18. 18 Over the course of five pages, the ALJ expressly discussed in detail how 19 the “relatively benign” objective clinical findings did not support the degree of 20 limitation Plaintiff had alleged. See AR 17-21; see also Reddick v. Chater, 21 157 F.3d 715, 725 (9th Cir. 1998) (an ALJ may resolve questions of credibility 22 “by setting out a detailed and thorough summary of the facts and conflicting 23 clinical evidence, stating his interpretation thereof, and making findings”); 24 Rodriguez v. Colvin, No. 13-0549, 2013 WL 6797896, at *3 (C.D. Cal. Dec. 25 20, 2013) (finding that ALJ properly discounted claimant’s credibility in part 26 because record contained relatively benign evidence). The ALJ referenced 27 several pieces of medical evidence revealing mild or minimal findings 28 including, e.g., (1) a July 29, 2011 thoracolumbar spine x-ray that showed mild 5 1 partial compression fracture of the vertebrae and minimal degenerative joint 2 disease (AR 18 (citing AR 542)); (2) a January 20, 2011 abdominal ultrasound 3 that revealed a normal liver and spleen, with the additional finding of 4 gallstones (AR 18 (citing AR 1122-23)); (3) a September 20, 2012 x-ray of the 5 thoracic spine that was negative except for dextroscoliosis2 (AR 19 (citing 6 AR 1113)); (4) a diagnostic test of the lumbar spine that showed mild 7 impressions on the thecal sac, mild arthrosis and mild bilateral neural 8 foraminal narrowing3 (AR 19 (citing AR 1141-43, 1150-51)); and (5) a 9 November 14, 2011 physical exam where Plaintiff demonstrated normal motor 10 11 skills, normal range of motion, and normal gait (AR 18 (citing AR 1133-39)). Moreover, the ALJ did not rely solely on the lack of supporting medical 12 evidence. As discussed below, the ALJ gave two other clear and convincing 13 reasons to discount Plaintiff’s credibility concerning the severity and limiting 14 effects of her pain. The ALJ was permitted to consider the lack of supporting 15 medical evidence as a factor confirming his other two reasons. See Burch, 16 400 F.3d at 681; Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) 17 (“While subjective pain testimony cannot be rejected on the sole ground that it 18 is not fully corroborated by objective medical evidence, the medical evidence is 19 still a relevant factor in determining the severity of the claimant’s pain and its 20 disabling effects.”); Social Security Ruling 96–7p (same). 21 2 22 23 24 25 26 27 According to the National Institutes of Health, scoliosis causes a sideways curve of the spine with symptoms that include leaning to one side and having uneven shoulders and hips. See https://www.nlm.nih.gov/ medlineplus/scoliosis.html. 3 The National Institutes of Health describes farominal narrowing (spinal stenosis) as putting pressure on nerves and the spinal cord causing pain, numbness, or weakness in the neck, back, or legs. See https://www.nlm.nih. gov/medlineplus/spinalstenosis.html. 28 6 1 2 3 b. Plaintiff’s daily activities were inconsistent with her claims of disabling pain. The ALJ found that despite Plaintiff’s alleged disabling pain, she 4 “engaged in a somewhat normal level of daily activity and interaction.” 5 AR 17. The ALJ referenced Plaintiff’s function report where she admitted that 6 she runs errands, goes grocery shopping, watches television, goes to the library, 7 prepares meals, folds clothes, goes out daily, shops in stores, and on the 8 computer and by phone, handles her own finances, spends time talking with 9 others, watches movies, plays card games, goes to church, and takes her 10 daughter to school. AR 17 (citing AR 181-88). At the administrative hearing, 11 Plaintiff responded to the ALJ’s question regarding her activities of daily 12 living, stating that she reads throughout the day. AR 44. 13 That Plaintiff maintained a reasonably normal level of daily activities 14 was a clear and convincing reason to discount her credibility, even if her 15 impairments made those activities somewhat more challenging. See Burch, 16 400 F.3d at 681 (noting that ALJ may discredit allegations of disability on 17 basis that claimant engages in daily activities involving skills that could be 18 transferred to the workplace); Curry v. Sullivan, 925 F.2d 1127, 1130 19 (9th Cir. 1990) (as amended) (finding that the claimant’s ability to “take care of 20 her personal needs, prepare easy meals, do light housework and shop for some 21 groceries . . . may be seen as inconsistent with the presence of a condition 22 which would preclude all work activity”) (citing Fair v. Bowen, 885 F.2d 597, 23 604 (9th Cir. 1989)); Molina, 674 F.3d at 1113 (“Even where [claimant’s] 24 activities suggest some difficulty functioning, they may be grounds for 25 discrediting the claimant’s testimony to the extent that they contradict claims 26 of a totally debilitating impairment.”). 27 28 7 c. 1 Plaintiff received routine, conservative, and non-emergency treatment since the alleged onset date. 2 In assessing the claimant’s credibility, an ALJ may also consider 3 4 evidence of conservative treatment in discounting testimony regarding the 5 severity of an impairment. See Parra v. Astrue, 481 F.3d 742, 751 6 (9th Cir. 2007). Here, the ALJ determined that Plaintiff had not “generally 7 received the type of medical treatment one would expect for a totally disabled 8 individual[.]” AR 18. Plaintiff states that she received treatment including 9 physical therapy, TENS units, muscle relaxants and medication including 10 ibuprofen. Dkt. 16 at 8; see AR 1116, 1134, 1151; see also Warre v. Comm’r 11 of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that 12 can be controlled effectively with medication are not disabling.”). In a January 13 9, 2012 progress report, Plaintiff admitted that physical therapy sessions 14 improved her back pain, AR 19 (citing AR 627), and according to June 24, 15 2011 progress notes, Plaintiff felt that “[physical] therapy ha[d] been very 16 helpful[.]” AR 830. Thus, the ALJ’s finding that Plaintiff’s conservative 17 treatment was inconsistent with the claimed severity of her pain is supported 18 by substantial evidence, and it provides another clear and convincing reason 19 for discounting Plaintiff’s testimony. See Tommasetti v. Astrue, 533 F.3d 20 1035, 1040 (9th Cir. 2008) (ALJ properly rejected claimant’s subjective 21 complaints because she responded favorably to conservative treatment of 22 physical therapy, TENS unit, and medication); see also Burch, 400 F.3d at 23 681. 24 On appellate review, this Court is limited to determining whether the 25 ALJ properly identified reasons for discrediting Plaintiff’s credibility. Smolen, 26 80 F.3d at 1284. The lack of evidence to support the severity of Plaintiff’s pain 27 allegations in the medical evidence, her daily activities, and her conservative 28 treatment were proper and sufficiently specific bases for discounting her claims 8 1 of disabling symptoms, and the ALJ’s reasoning was clear and convincing. 2 See Tommasetti, 533 F.3d at 1039-40; Houghton v. Comm’r of Soc. Sec. 3 Admin., 493 F. App’x 843, 845 (9th Cir. 2012). Because the ALJ’s findings 4 were supported by substantial evidence, this Court may not engage in second- 5 guessing. See Thomas, 278 F.3d at 959; Fair, 885 F.2d at 604. Remand is not 6 warranted. 7 B. The ALJ Provided At Least One Specific, Germane Reason For 8 Rejecting Lay Witness Testimony 9 Plaintiff next contends that the ALJ improperly evaluated the testimony 10 of her daughter, Avelena Camacho, as detailed in a third-party function report. 11 See Dkt. 16 at 13-15. The ALJ found as follows: 12 The undersigned has read and considered the statements 13 from the claimant’s daughter in a third party function report, and 14 finds these statements are only credible to the extent that her 15 statements are consistent with the conclusion the claimant can do 16 the work described herein (Exhibit 3E). 17 The statements made by the claimant’s daughter have not 18 been given under oath. She is not a medical professional and as a 19 lay witness, the claimant’s daughter is not competent to make a 20 diagnosis or argue the severity of the claimant’s symptoms in 21 relationship to her ability to work. 22 supports the claimant emotionally and physically and therefore she 23 has a familial interest in seeing the claimant receive benefits. 24 Therefore, her opinion is not an unbiased one. Most importantly, 25 the clinical or diagnostic medical evidence that is discussed more 26 throughout below does not support her statements. 27 AR 18. 28 9 The claimant’s daughter 1 An ALJ may discount the testimony of lay witnesses only if he provides 2 specific “reasons that are germane to each witness.” Dodrill v. Shalala, 3 12 F.3d 915, 919 (9th Cir. 1993); Lewis v. Apfel, 236 F.3d 503, 511 4 (9th Cir. 2001) (“Lay testimony as to a claimant’s symptoms is competent 5 evidence that an ALJ must take into account, unless he or she expressly 6 determines to disregard such testimony and gives reasons germane to each 7 witness for doing so.”). 8 Here, the ALJ appears to have improperly assigned limited credibility to 9 Ms. Camacho’s testimony because she was not a “medical professional” nor 10 “competent to make a diagnosis” of Plaintiff’s medical symptoms. AR at 18; 11 see Cline v. Colvin, 2013 WL 3733486, at *8 (E.D. Wash. July 15, 2013) (ALJ 12 erred in rejecting function report on basis of witness’s lack of medical training, 13 where it was not apparent that the declarant “attempted to make exacting 14 observations as to the dates, frequencies, types[,] and degrees of medical signs 15 and symptoms”). Further, “[t]he fact that a lay witness is a family member 16 cannot be a ground for rejecting his or her testimony.” Smolen, 80 F.3d at 17 1289 (rejecting the ALJ’s dismissal of testimony from family witnesses who 18 were “understandably advocates, and biased,” as not a valid reason); 19 20 C.F.R. §§ 404.1513(d)(4), 416.913(d)(4) (explaining that commissioner will 20 consider evidence from “non-medical sources,” including “relatives,” to 21 determine how a claimant’s impairments affect her ability to work). 22 Nonetheless, the ALJ provided at least one specific reason for rejecting 23 Plaintiff’s daughter’s testimony that was germane to her, thus rendering any 24 error harmless. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 25 1162-63 (9th Cir. 2008) (finding error by the ALJ on one or more factors in a 26 credibility determination harmless if there “remains substantial evidence 27 supporting the ALJ’s conclusions”). The ALJ noted that Ms. Camacho’s 28 statements were inconsistent with the clinical or diagnostic medical evidence 10 1 before the ALJ. AR at 18; see Bayliss v. Barnhart, 427 F.3d at 1211, 1218 2 (9th Cir. 2005) (inconsistency with medical evidence is a germane reason for 3 discrediting the testimony of a lay witness); Plaza v. Astrue, No. CV 12-1029, 4 2013 WL 210247, at *7-8 (C.D. Cal. Jan. 18, 2013) (finding harmless error in 5 ALJ rejecting mother’s third-party function report on improper grounds, 6 because germane reason for discounting report – that witness’s testimony 7 contradicted by medical records – existed). For example, contrary to Ms. 8 Camacho’s testimony that Plaintiff was limited in walking, sitting, standing, 9 and remembering instructions (AR 175-70), the ALJ noted that medical 10 evidence showed that Plaintiff displayed normal motor skills, normal gait, easy 11 balance, and demonstrated normal mental status evaluations between January 12 6, 2011 and June 20, 2013. See AR 18-19 (citing AR 598, 1030, 1035, 1039, 13 1045, 1056, 1076, 1080, 1084, 1086, 1099). Moreover, Ms. Camacho’s observations about Plaintiff’s ability to read, 14 15 watch TV, fix lunch, handle money, enjoy hobbies, and shop for groceries, 16 books, and toiletries once a week support the ALJ’s RFC finding. AR at 170- 17 74; see Fair, 885 F.2d at 604 (in discounting credibility, ALJ may properly rely 18 on daily activities inconsistent with disability claim, including claimant’s 19 ability to care for personal needs, shop, and perform routine household 20 chores); see also Pinegar v. Comm’r of Soc. Sec. Admin., 499 F. App’x 666, 21 667 (9th Cir. 2012) (finding failure to provide valid reasons for rejecting third 22 party testimony harmless where testimony consistent with ALJ’s decision). 23 Accordingly, the ALJ’s assessment of Ms. Camacho’s testimony does 24 not warrant reversal. 25 /// 26 /// 27 /// 28 /// 11 1 IV. 2 CONCLUSION 3 4 For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. 5 6 7 Dated: April 13, 2016 ______________________________ KAREN E. SCOTT United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12
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