Barbara Ann Groom v. Nancy A. Berryhill, No. 5:2017cv01117 - Document 21 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is affirmed. (See memorandum for details) (hr)
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Barbara Ann Groom v. Nancy A. Berryhill Doc. 21 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 BARBARA ANN GROOM, 12 Plaintiff, 13 v. Case No. EDCV 17-1117 JC MEMORANDUM OPINION 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 Defendant. 17 18 I. 19 SUMMARY On June 7, 2017, plaintiff Barbara Ann Groom filed a Complaint seeking 20 review of the Commissioner of Social Security’s denial of plaintiff’s application 21 for benefits. The parties have consented to proceed before the undersigned United 22 States Magistrate Judge. 23 This matter is before the Court on the parties’ cross motions for summary 24 judgment, respectively (“Plaintiff’s Motion”) and (“Defendant’s Motion”) 25 (collectively “Motions”). The Court has taken the Motions under submission 26 without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; June 7, 2017 Case 27 Management Order ¶ 5. 28 1 Dockets.Justia.com 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is AFFIRMED. The findings of Administrative Law Judge Lynn 3 Ginsberg (“ALJ”) in her administrative decision dated February 23, 2017 (AR 4 978-91) (“ALJ’s Decision”) are supported by substantial evidence and are free 5 from material error. 6 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 7 DECISION 8 On November 8, 2010, plaintiff filed applications for Supplemental Security 9 Income and Disability Insurance Benefits, alleging disability beginning on 10 December 23, 2004,1 due to cervical spondylosis with neck pain and myelopathy, 11 migraine headaches, arthritis, and heart valve problems. (Administrative Record 12 (“AR”) 152, 159, 217, 978-79). Multiple hearings have been held regarding 13 plaintiff’s applications for benefits. (AR 29-70 & 737-81 [April 10, 2012]; AR 14 782-96 [June 18, 2014], AR 693-736 [September 9, 2014]; AR 979, 1000-38, 15 1098 [October 28, 2016]). Three different Administrative Law Judges issued 16 unfavorable decisions, the most recent of which is at issue here. (AR 9-15, 67617 86, 978-91; see also AR 800-14, 1043-53). This Court has twice remanded the 18 matter to the Social Security Administration (“SSA”) for further administrative 19 action due to errors in each of the first two administrative decisions. (AR 830-41, 20 1064-75). The Appeals Council, in turn, remanded the case each time for a new 21 hearing. (AR 848, 1076). 22 On the most recent remand from the Appeals Council, the ALJ held a 23 hearing on October 28, 2016 (“Hearing”), during which the ALJ examined the 24 medical record and heard testimony from plaintiff (who was represented by 25 counsel) and a vocational expert. (AR 979, 1000-38, 1098). 26 On February 23, 2017, the ALJ determined that plaintiff was not disabled. 27 (AR 978-91). Specifically, the ALJ found that through the date of the ALJ’s 28 1 Plaintiff amended the alleged onset date to July 14, 2008. (AR 979). 2 1 Decision (1) plaintiff suffered from the following severe impairments: 2 degenerative disc disease of the cervical spine, status post cervical spine surgery 3 3/24/2008, degenerative disc disease of the lumbar spine, osteoarthritis of the 4 hands and joints, plantar fasciitis, migraines, bipolar disorder, history of 5 polysubstance dependency, and history of elbow surgery and carpal tunnel 6 releases (AR 981); (2) plaintiff’s impairments, considered individually or in 7 combination, did not meet or medically equal a listed impairment (AR 981-83); 8 (3) plaintiff retained the residual functional capacity to perform light work 9 (20 C.F.R. §§ 404.1567(b), 416.967(b)) with additional limitations2 (AR 983); 10 (4) plaintiff could not perform any past relevant work (AR 988); (5) there are jobs 11 that exist in significant numbers in the national economy that plaintiff could 12 perform, specifically housekeeping cleaner, routing clerk, and dry cleaner (AR 13 989); and (6) plaintiff’s statements concerning the intensity, persistence, and 14 limiting effects of subjective symptoms were “not entirely consistent with the 15 medical evidence and other evidence in the record. . . .” (AR 984). 16 III. APPLICABLE LEGAL STANDARDS 17 A. 18 To qualify for disability benefits, a claimant must show that she is unable Administrative Evaluation of Disability Claims 19 “to engage in any substantial gainful activity by reason of any medically 20 determinable physical or mental impairment which can be expected to result in 21 22 23 24 25 26 27 28 2 More specifically, the ALJ determined that plaintiff: (i) could lift and carry up to 20 pounds occasionally and 10 pounds frequently; (ii) could stand and walk for six hours in an eight-hour workday with normal breaks; (iii) could never crawl, or climb ladders, ropes, or scaffolds; (iv) could occasionally balance, stoop, kneel, crouch, and climb ramps and stairs; (v) could to do frequent overhead reaching bilaterally; (vi) could frequently do handling and fingering bilaterally; (vii) could have occasional exposure to extreme cold, and occasional exposure to excessive vibration such as construction vibration and vibration from production machinery; (viii) could have no exposure to unprotected heights and could not use hazardous moving machinery such as large construction machinery and production machinery; (ix) was limited to unskilled work at all reasoning levels appropriate for unskilled work; and (x) could have occasional interaction with the public. (AR 983). 3 1 death or which has lasted or can be expected to last for a continuous period of not 2 less than 12 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) 3 (quoting 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted). To be 4 considered disabled, a claimant must have an impairment of such severity that she 5 is incapable of performing work the claimant previously performed (“past relevant 6 work”) as well as any other “work which exists in the national economy.” Tackett 7 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)). 8 To assess whether a claimant is disabled, an ALJ is required to use the five- 9 step sequential evaluation process set forth in Social Security regulations. See 10 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 11 Cir. 2006) (citations omitted) (describing five-step sequential evaluation process) 12 (citing 20 C.F.R. §§ 404.1520, 416.920). The claimant has the burden of proof at 13 steps one through four – i.e., determination of whether the claimant was engaging 14 in substantial gainful activity (step 1), has a sufficiently severe impairment (step 15 2), has an impairment or combination of impairments that meets or equals a listing 16 in 20 C.F.R. Part 404, Subpart P, Appendix 1 (step 3), and retains the residual 17 functional capacity to perform past relevant work (step 4). Burch v. Barnhart, 400 18 F.3d 676, 679 (9th Cir. 2005) (citation omitted). The Commissioner has the 19 burden of proof at step five – i.e., establishing that the claimant could perform 20 other work in the national economy. Id. 21 B. 22 A federal court may set aside a denial of benefits only when the Federal Court Review of Social Security Disability Decisions 23 Commissioner’s “final decision” was “based on legal error or not supported by 24 substantial evidence in the record.” 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871 25 F.3d 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). The 26 standard of review in disability cases is “highly deferential.” Rounds v. 27 Commissioner of Social Security Administration, 807 F.3d 996, 1002 (9th Cir. 28 2015) (citation and quotation marks omitted). Thus, an ALJ’s decision must be 4 1 upheld if the evidence could reasonably support either affirming or reversing the 2 decision. Trevizo, 871 F.3d at 674-75 (citations omitted). Even when an ALJ’s 3 decision contains error, it must be affirmed if the error was harmless. Treichler v. 4 Commissioner of Social Security Administration, 775 F.3d 1090, 1099 (9th Cir. 5 2014) (ALJ error harmless if (1) inconsequential to the ultimate nondisability 6 determination; or (2) ALJ’s path may reasonably be discerned despite the error) 7 (citation and quotation marks omitted). 8 Substantial evidence is “such relevant evidence as a reasonable mind might 9 accept as adequate to support a conclusion.” Trevizo, 871 F.3d at 674 (citation 10 and quotation marks omitted). It is “more than a mere scintilla, but less than a 11 preponderance.” Id. When determining whether substantial evidence supports an 12 ALJ’s finding, a court “must consider the entire record as a whole, weighing both 13 the evidence that supports and the evidence that detracts from the Commissioner’s 14 conclusion[.]” Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citation 15 and quotation marks omitted). 16 Federal courts review only the reasoning the ALJ provided, and may not 17 affirm the ALJ’s decision “on a ground upon which [the ALJ] did not rely.” 18 Trevizo, 871 F.3d at 675 (citations omitted). Hence, while an ALJ’s decision need 19 not be drafted with “ideal clarity,” it must, at a minimum, set forth the ALJ’s 20 reasoning “in a way that allows for meaningful review.” Brown-Hunter v. Colvin, 21 806 F.3d 487, 492 (9th Cir. 2015) (citing Treichler, 775 F.3d at 1099); id. (“A 22 clear statement of the [ALJ’s] reasoning is necessary because we can affirm the 23 agency’s decision to deny benefits only on the grounds invoked by the agency.”) 24 (citation omitted); see generally 42 U.S.C. § 405(b)(1) (“ALJ’s unfavorable 25 decision must, among other things, “set[] forth a discussion of the evidence” and 26 state “the reason or reasons upon which it is based”); 20 C.F.R. § 404.953(a) 27 (“The administrative law judge shall issue a written decision that gives the 28 findings of fact and the reasons for the decision.”); Securities and Exchange 5 1 Commission v. Chenery Corp., 332 U.S. 194, 196-97 (1947) (administrative 2 agency’s determination must be set forth with clarity and specificity). 3 A reviewing court may not conclude that an error was harmless based on 4 independent findings gleaned from the administrative record. Brown-Hunter, 806 5 F.3d at 492 (citations omitted). When a reviewing court cannot confidently 6 conclude that an error was harmless, a remand for additional investigation or 7 explanation is generally appropriate. See Marsh v. Colvin, 792 F.3d 1170, 1173 8 (9th Cir. 2015) (citations omitted). 9 IV. 10 DISCUSSION Plaintiff essentially contends that the ALJ failed properly to consider both 11 plaintiff’s age category at step five and plaintiff’s statements regarding her 12 subjective symptoms. (Plaintiff’s Motion at 5-14). For the reasons discussed 13 below, a third remand or reversal in this case is not warranted on either basis. 14 15 16 A. The ALJ’s Step Five Determination Is Free of Material Error 1. Pertinent Law At step five, the Commissioner must prove that other work exists in 17 “significant numbers” in the national economy which could be done by an 18 individual with the same residual functional capacity, age, education, and work 19 experience as the claimant. 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. 20 §§ 404.1520(a)(4)(v) & (g), 404.1560(c); 20 C.F.R. §§ 416.920(a)(4)(v) & (g), 21 416.960(c); Heckler v. Campbell, 461 U.S. 458, 461-62 (1983); see Zavalin v. 22 Colvin, 778 F.3d 842, 845 (9th Cir. 2015) (describing legal framework for step 23 five) (citations omitted). The Commissioner may satisfy this burden either by 24 (1) referring to the Medical-Vocational Guidelines in 20 C.F.R. Part 404, Subpart 25 P, Appendix 2 (commonly known as “the Grids”); or (2) obtaining testimony from 26 an impartial vocational expert (“vocational expert” or “VE”) about the type of 27 work such a claimant is still able to perform, as well as the availability of related 28 /// 6 1 jobs in the national economy. See Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th 2 Cir. 2001) (citing Tackett, 180 F.3d at 1100-01). 3 The Grids set forth four tables – one for each exertion level (i.e., sedentary, 4 light, medium, and heavy work) – with rules that analyze whether jobs exist in 5 significant numbers in the national economy for various standard combinations of 6 vocational factors (i.e., age, education, and work experience) and residual 7 functional capacity (collectively “four factors”). See 20 C.F.R. Pt. 404, Subpt. P, 8 App. 2, § 200.00(a); see also Heckler, 461 U.S. at 461-62; Lockwood v. 9 Commissioner of Social Security Administration, 616 F.3d 1068, 1071 (9th Cir. 10 2010) (citation omitted), cert. denied, 563 U.S. 975 (2011). Where a claimant’s 11 particular combination of the four factors matches all of the criteria for a particular 12 Grid rule, that rule effectively directs a conclusion as to whether there is sufficient 13 work available that such a claimant could perform, and in turn, whether the 14 claimant is presumptively disabled or not. 20 C.F.R. Pt. 404, Subpt. P, App. 2 15 § 200.00(a); see Heckler, 461 U.S. at 461-62; Lockwood, 616 F.3d at 1071 (citing 16 id.). 17 Social Security regulations categorize claimants into three general age 18 groups, specifically persons who are “younger [] (under age 50),” “closely 19 approaching advanced age (age 50–54),” and of “advanced age (age 55 or older).” 20 20 C.F.R. §§ 404.1563(c)-(e), 416.963(c)-(e); Lockwood, 616 F.3d at 1071 21 (citation omitted). A “borderline [age] situation” is presented where, like here, the 22 claimant is “within a few days to a few months of reaching an older age category” 23 and would be found “not disabled” if the category for plaintiff’s chronological age 24 were used, but “disabled” if the older age category were applied. 20 C.F.R. 25 §§ 404.1563(b), 416.963(b) (emphasis added); Lockwood, 616 F.3d at 1071 26 (citation omitted). In borderline cases an ALJ may not apply the age categories 27 “mechanically,” and has discretion to use the older age category rather than the 28 category for the claimant’s chronological age. 20 C.F.R. §§ 404.1563(b), 7 1 416.963(b) (emphasis added); Lockwood, 616 F.3d at 1071 (citation omitted). An 2 ALJ is not required to use the older age category and need not explain in the 3 decision why an older age category was not used. Lockwood, 616 F.3d at 1071-72 4 & n.n.2, 4 (citing 20 C.F.R. § 404.1563(b); Bowie v. Commissioner of Social 5 Security, 539 F.3d 395, 399-401 (6th Cir. 2008)); Burkes v. Colvin, 2015 WL 6 2375865, at *1 (C.D. Cal. May 18, 2015) (“While the ALJ is required to consider 7 use of an older age category in a borderline situation, the ALJ does not need to 8 explain in a written decision why an older age category was not used.”) (citing 9 Lockwood, 616 F.3d at 1070, 1072-74). Nonetheless, in borderline cases the ALJ 10 must actually “consider” whether to use the next older age category, and the ALJ’s 11 decision must reflect that such consideration did, in fact, occur – e.g., that the ALJ 12 (i) knew the case involved a borderline age situation and that he or she had 13 discretion to use the older age category; (ii) did not “mechanically” apply the age 14 categories; and (iii) actually “evaluat[ed] the overall impact of all the factors of 15 [the claimant’s] case.” 20 C.F.R. §§ 404.1563(b), 416.963(b); see Lockwood, 616 16 F.3d at 1071-72 & n.4 (“plain language” of 20 C.F.R. § 404.1563(b) reflects that 17 ALJ not require to do “anything more” than “show [] that she considered whether 18 to use the older age category”) (citations omitted). 19 20 2. Analysis Here, the parties do not genuinely dispute that plaintiff’s case involved a 21 “borderline [age] situation” at the time the ALJ’s Decision was issued. (See 22 Plaintiff’s Motion at 5-6 [noting “Plaintiff was 54 days short of her 55[th] 23 birthday” on the date of the ALJ’s decision and once plaintiff turned 55 she would 24 be found presumptively “disabled” under Grid Rule 202.06]; Defendant’s Motion 25 at 2, 4). Plaintiff essentially argues that the ALJ’s Decision fails properly to 26 reflect that the ALJ considered whether to use the older age category at step five 27 given plaintiff’s “borderline situation.” (See Plaintiff’s Motion at 6 [ALJ’s 28 decision “does . . . [not] remotely address the requirements of 20 C.F.R. Section 8 1 404.1563(b) pertaining to the non mechanical application of the Grid Rules in a 2 borderline age situation”]; 9 [ALJ “committed reversible error in failing to include 3 in her decision any explanation whatsoever that the borderline age situation in this 4 case was considered”], 11 [ALJ failed properly to consider plaintiff’s borderline 5 age “in combination with the fact that Plaintiff had not engaged in any substantial 6 gainful activity for approximately 13 years” and ALJ failed to provide “any 7 explanation whatsoever . . . that Plaintiff’s borderline age was even considered”]). 8 Notwithstanding the foregoing, a reversal or remand is not warranted on such 9 basis since there is substantial evidence in the record that the ALJ satisfied her 10 burden to “consider” whether to use the older age category in plaintiff’s case. 11 First, the record reflects the ALJ was fully aware that plaintiff’s case 12 involved a borderline age situation. The transcript from the October 8, 2016 13 Hearing reflects that the ALJ extensively examined plaintiff about her age and that 14 the ALJ was clearly aware of the age categories that applied at various points in 15 time in plaintiff’s case. (See AR 1005 [eliciting plaintiff’s date of birth]; AR 16 1004-05 [noting that plaintiff had been 42 years old on the original alleged onset 17 date of December 23, 2004]; AR 1005-06 [noting that plaintiff had still been “a 18 younger individual” when the alleged onset date had been “amended [] to July 17 19 of 2008”]; AR 1005-06 [explaining that plaintiff had “crossed over an age 20 category [to] . . . an individual . . . closely approaching advanced age” when 21 plaintiff turned 50 years old on her birthday in April 2012 and that “for Social 22 Security purposes [plaintiff] became the older age the day before [her] actual 23 birthday”]; cf., e.g., AR 1029 [ALJ “recogniz[ing] that the [plaintiff] would grid 24 once [she] turn[ed] 50 in April 2012”). In addition, at the beginning of the 25 Hearing, the ALJ specifically stressed that she would be “carefully reviewing all 26 the evidence, weighing and evaluating all the opinions, listening to [plaintiff’s] 27 testimony [that day], considering [plaintiff’s] prior testimony, listening to the 28 testimony of the vocational expert, and considering the totality of the evidence in 9 1 making [her] decision.” (AR 1004). In addition, the ALJ’s Decision issued less 2 than four months after the Hearing expressly mentioned plaintiff’s date of birth 3 and noted that plaintiff “was 46 years old” on the amended alleged onset date 4 which Social Security regulations “defined as a younger individual age 18-49,” 5 and observed that plaintiff had “subsequently changed age category to closely 6 approaching advanced age.” (AR 989). It is reasonable to infer from the 7 foregoing that when the ALJ’s Decision was issued, the ALJ was clearly aware 8 that plaintiff was just shy of her 55th birthday, and that on her birthday that year 9 plaintiff would become a person of advanced age. 10 Second, the ALJ cited 20 C.F.R. §§ 404.1563, 416.963 which prohibit 11 applying the age categories mechanically in borderline situations. (AR 989). This 12 supports a presumption that when the ALJ’s Decision issued, the ALJ knew she 13 had discretion “to use the older age category after evaluating the overall impact of 14 all the factors of [plaintiff’s] case.” Lockwood, 616 F.3d at 1072 & n.3 (“We 15 presume that ALJs know the law and apply it in making their decisions.”) (citing 16 Walton v. Arizona, 497 U.S. 639, 653 (1990), overruled on other grounds by Ring 17 v. Arizona, 536 U.S. 584, 609 (2002)). 18 Finally, there is also substantial evidence that the ALJ did not “apply the 19 age categories mechanically” because the ALJ “evaluat[ed] the overall impact of 20 all the factors of [plaintiff’s] case” by relying on the testimony of a vocational 21 expert before finding that plaintiff was not disabled. See id. at 1072 (quotation 22 marks and footnote omitted). 23 To the extent plaintiff argues that the ALJ “committed reversible error” by 24 violating certain requirements set forth in two SSA internal guidance documents – 25 i.e., the Program Operations Manual System (“POMS”) and the Hearings, 26 Appeals, and Litigation Manual (“HALLEX”) (Plaintiff’s Motion at 7-9), such an 27 argument lacks merit. See, e.g., Lockwood, 616 F.3d at 1072-73 (HALLEX and 28 /// 10 1 POMS “[do] not impose judicially enforceable duties” on federal court or ALJ 2 regarding borderline situations) (citations omitted). 3 Accordingly, a reversal or remand is not warranted on this ground. 4 B. 5 Plaintiff contends that a remand or reversal is warranted because the ALJ The ALJ Properly Evaluated Plaintiff’s Subjective Symptoms 6 failed properly to consider plaintiff’s subjective statements. (Plaintiff’s Motion at 7 12-14). The Court disagrees. 8 9 1. Pertinent Law When determining disability, an ALJ is required to consider a claimant’s 10 impairment-related pain and other subjective symptoms at each step of the 11 sequential evaluation process. 20 C.F.R. §§ 404.1529(a) & (d), 416.929(a) & (d). 12 Accordingly, when a claimant presents “objective medical evidence of an 13 underlying impairment which might reasonably produce the pain or other 14 symptoms [the claimant] alleged,” the ALJ is required to determine the extent to 15 which the claimant’s statements regarding the intensity, persistence, and limiting 16 effects of her symptoms (“subjective statements” or “subjective complaints”) are 17 consistent with the record evidence as a whole and, consequently, whether any of 18 the individual’s symptom-related functional limitations and restrictions are likely 19 to reduce the claimant’s capacity to perform work-related activities. 20 C.F.R. §§ 20 404.1529(a), (c)(4), 416.929(a), (c)(4); Social Security Ruling (“SSR”) 16-3p, 21 2017 WL 5180304, at *4-*10; SSR 96-7p, 1996 WL 374186, at *1-*5.3 When an 22 23 24 25 26 27 28 3 Social Security Rulings reflect the SSA’s official interpretation of pertinent statutes, regulations, and policies. 20 C.F.R. § 402.35(b)(1). Although they “do not carry the ‘force of law,’” Social Security Rulings “are binding on all components of the . . . Administration[,]” and are entitled to deference if they are “consistent with the Social Security Act and regulations.” 20 C.F.R. § 402.35(b)(1); Bray v. Commissioner of Social Security Administration, 554 F.3d 1219, 1224 (9th Cir. 2009) (citations and quotation marks omitted); see also Heckler, 465 U.S. at 873 n.3 (discussing weight and function of Social Security rulings). Social Security Ruling 16-3p superseded SSR 96-7p and, in part, eliminated use of the term “credibility” from SSA (continued...) 11 1 individual’s subjective statements are inconsistent with other evidence in the 2 record, an ALJ may give less weight to such statements and, in turn, find that the 3 individual’s symptoms are less likely to reduce the claimant’s capacity to perform 4 work-related activities. See SSR 16-3p, 2017 WL 5180304, at *8; SSR 96-7p, 5 1996 WL 374186, at *1-*3. In such cases, when there is no affirmative finding of 6 malingering, an ALJ may “reject” or give less weight to the individual’s subjective 7 statements “only by providing specific, clear, and convincing reasons for doing 8 so.” Brown-Hunter, 806 F.3d at 488-89.4 If an ALJ’s evaluation of a claimant’s statements is reasonable and is 9 10 supported by substantial evidence, it is not the court’s role to second-guess it. See 11 Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation omitted). 12 /// 13 /// 14 /// 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 (...continued) “sub-regulatory policy[]” in order to “clarify that subjective symptom evaluation is not an examination of an individual’s [overall character or truthfulness] . . . [and] more closely follow [SSA] regulatory language regarding symptom evaluation.” See SSR 16-3p, 2017 WL 5180304, at *1-*2, *10-*11. The SSA recently republished SSR 16-3p making no change to the substantive policy interpretation regarding evaluation of a claimant’s subjective complaints, but clarifying that the SSA would apply SSR 16-3p only “[when making] determinations and decisions on or after March 28, 2016[,]” and that federal courts should apply “the rules [regarding subjective symptom evaluation] that were in effect at the time” an ALJ’s decision being reviewed became final. SSR 16-3p, 2017 WL 5180304, at *1, *13 n.27. Such language suggests that SSR 16-3p is not retroactive in certain circumstances. Nonetheless, the issue of retroactivity need not be resolved here since neither party contends that SSR 16-3p should apply in this case, and the ALJ’s evaluation of plaintiff’s subjective complaints passes muster whether SSR 16-3p or its predecessor, SSR 96-7p, governs. 4 It appears to the Court, based upon its research of the origins of the requirement that there be “specific, clear and convincing” reasons to reject or give less weight to an individual’s subjective statements absent an affirmative finding of malingering, that such standard of proof remains applicable irrespective of whether SSR 96-7p or SSR 16-3p governs. See Trevizo, 871 F.3d at 678-79 & n.5 (citations omitted). 12 1 2 2. Analysis Here, plaintiff says the ALJ materially erred in evaluating plaintiff’s 3 subjective complaints for essentially three reasons – none of which justifies a 4 remand in the instant case. 5 For instance, plaintiff contends that the ALJ “failed to specify which [of 6 plaintiff’s] allegations of pain and or other symptoms he [sic] found not credible.” 7 (Plaintiff’s Motion at 13). Curiously, in her own briefing plaintiff did not identify 8 which specific subjective complaint(s) she believed the ALJ improperly rejected. 9 (Plaintiff’s Motion at 12-14). In addition, plaintiff asserts she “consistently 10 maintained” that she was disabled due to “a combination of [unspecified] physical 11 and mental impairments” but only provides citations to plaintiff’s entire testimony 12 at three hearings, an entire function report prepared by plaintiff, two cryptic 13 disability reports, and the last page of an unspecified form. (Plaintiff’s Motion at 14 12) (citing AR 32-55, 217, 243, 254-61, 273, 701-714, and 1007-1021”). Such 15 sweeping and conclusory argument is insufficient to justify a remand here. See 16 Carmickle v. Commissioner of Social Security Administration, 533 F.3d 1155, 17 1161 n.2 (9th Cir. 2008) (declining to address challenge to ALJ’s finding where 18 claimant “failed to argue th[e] issue with any specificity in [] briefing”) (citation 19 omitted); Independent Towers of Washington v. Washington, 350 F.3d 925, 929 20 (9th Cir. 2003) (appellate courts “review only issues which are argued specifically 21 and distinctly in a party’s opening brief.”) (citations omitted); Carmen v. San 22 Francisco Unified School District, 237 F.3d 1026, 1030-31 (9th Cir. 2001) (on 23 summary judgment parties must provide citations to location in record where 24 specific facts may “conveniently be found” and court may limit its review to those 25 parts of the record the parties have “specifically referenced”); Keenan v. Allan, 91 26 F.3d 1275, 1279 (9th Cir. 1996) (district court not required to “scour the record” 27 on summary judgment where party has failed to identify specific record evidence 28 with reasonable particularity) (citations omitted). 13 1 Plaintiff also asserts “notwithstanding his [sic] conclusory assertion to the 2 contrary, the ALJ’s discussion of plaintiff’s credibility in the body of the hearing 3 decision does not reflect consideration or application of the factors mandated by 4 Social Security Ruling 96-7P.” (Plaintiff’s Motion at 13). Plaintiff’s Motion 5 again provides no specific argument regarding how the ALJ specifically erred in 6 such respect, and thus fails to persuade the Court that a remand is warranted here. 7 See, e.g., DeBerry v. Commissioner of Social Security Administration, 352 Fed. 8 Appx 173, 176 (9th Cir. 2009) (declining to consider claim that ALJ failed 9 properly to apply Social Security Ruling where claimant did not argue the issue 10 “with any specificity” in her opening brief and failed to cite “any evidence or legal 11 authority” in support of her position) (citing Carmickle, 533 F.3d at 1161 n.2); 12 Brollier v. Astrue, 2013 WL 1820826, at *6 & n.113 (N.D. Cal. Apr. 30, 2013) 13 (court not required to consider “conclusory unsupported arguments” where 14 claimant “fail[ed] to provide any analysis supporting [his position] or argue that 15 [ALJ’s alleged error] would necessarily have altered the ALJ’s ultimate 16 determination”) (citation omitted); see generally Independent Towers of 17 Washington, 350 F.3d at 929 (party’s “bare assertion of an issue” in briefing “does 18 not preserve a claim” on appeal) (citations omitted); Moody v. Berryhill, 19 245 F. Supp. 3d 1028, 1032–33 (C.D. Ill. 2017) (“The Court ‘cannot fill the void 20 [in a claimant’s analysis] by crafting arguments and performing the necessary legal 21 research.’”) (citing Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001)); 22 Rogal v. Astrue, 2012 WL 7141260, *3 (W.D. Wash. Dec. 7, 2012) (“It is not 23 enough merely to present an argument in the skimpiest way, and leave the Court to 24 do counsel’s work–framing the argument and putting flesh on its bones through a 25 discussion of the applicable law and facts.”) (citations omitted), report and 26 recommendation adopted, 2013 WL 557172 (W.D. Wash. Feb. 12, 2013), aff’d, 27 590 Fed. Appx. 667 (9th Cir. 2014). 28 /// 14 1 Finally, plaintiff argues “the ALJ did not state clear and convincing reasons 2 for rejecting Plaintiff’s testimony.” (Plaintiff’s Motion at 13). Such conclusory 3 assertion, however, somewhat mischaracterizes the ALJ’s Decision and, in any 4 event, as discussed below, is belied by the record. 5 First, plaintiff argues that the ALJ “summarily reject[ed] all of [plaintiff’s] 6 subjective statements . . . regarding her symptoms and limitations which would 7 preclude her from sustaining full time competitive employment, simply based 8 upon the ALJ’s apparent perception that [plaintiff’s] statements exceed the 9 ‘objective medical evidence.’” (Plaintiff’s Motion at 13, 14). However, the ALJ’s 10 Decision actually explained in some detail how the ALJ’s residual functional 11 capacity assessment for plaintiff accounted for – and thus did not reject – many of 12 plaintiff’s specific subjective complaints. (AR 987-88). Plaintiff has not shown 13 that such analysis failed to address any specific impairment which caused 14 functional limitation beyond that already accounted for in the ALJ’s residual 15 functional capacity assessment, much less that any such error was at all harmful. 16 See generally McLeod v. Astrue, 640 F.3d 881, 887 (9th Cir. 2011) (“Where 17 harmfulness of [] error is not apparent from the circumstances, [claimant] seeking 18 reversal must explain how the error caused harm.”). 19 Second, the ALJ properly gave less weight to plaintiff’s subjective 20 complaints, in part, due to inconsistencies in plaintiff’s statements. See Popa v. 21 Berryhill, 872 F.3d 901, 906 (9th Cir. 2017) (“An ALJ may consider inconsistent 22 statements by a claimant in assessing her credibility.”) (citing Tonapetyan v. 23 Halter, 242 F.3d 1144, 1148 (9th Cir. 2001)); Light v. Social Security 24 Administration, 119 F.3d 789, 792 (9th Cir. 1997) (in weighing plaintiff’s 25 credibility, ALJ may consider “inconsistencies either in [plaintiff’s] testimony or 26 between his testimony and his conduct”); SSR 16-3P, 2016 WL 1119029, at *8 27 (ALJ may consider “consistency of the individual’s own statements” when 28 “determining whether an individual’s symptoms will reduce his or her 15 1 corresponding capacities to perform work-related activities”); SSR 96-7P, 1996 2 WL 374186, at *6. For example, as the ALJ noted, and contrary to plaintiff’s 3 complaints about disabling problems with her neck and upper extremities, plaintiff 4 reported to one doctor that her elbow “ha[d] improved markedly[,]” and the 5 following month the same doctor noted that plaintiff was “doing very well” and 6 that he had “released [plaintiff] to her usual and customary duties.” (AR 984, 987) 7 (citing Exhibit 2F at 33-34 [AR 319-20]). 8 Third, the ALJ properly gave less weight to plaintiff’s subjective complaints 9 to the extent effective medical treatment alleviated plaintiff’s symptoms. See 10 Warre v. Commissioner of Social Security Administration, 439 F.3d 1001, 1006 11 (9th Cir. 2006) (“Impairments that can be controlled effectively with medication 12 are not disabling. . . .”) (citations omitted); see, e.g., Bailey v. Colvin, 659 Fed. 13 Appx. 413, 415 (9th Cir. 2016) (evidence that “impairments had been alleviated by 14 effective medical treatment,” to the extent inconsistent with “alleged total 15 disability[,]” specific, clear, and convincing reason for discounting subjective 16 complaints) (citing id.). For example, as the ALJ noted, plaintiff’s allegations of 17 disabling “neck symptoms and headaches” were inconsistent with plaintiff’s 18 “subjective” reports to her doctors that her pain had responded favorably to her 19 conservative medication. (AR 987) (citing Exhibits 6F at 7 [AR 457 - noting 20 “subjective” complaint of “neck pain” with “no radicular symptoms” and that pain 21 “responds to Ibuprofen” and that plaintiff was “discharge[d]” after being 22 prescribed only a refill of ibuprofen], 19F at 4 [AR 616 - noting plaintiff’s 23 subjective report of migraine headaches that were “relieved [with] Topamax and 24 Imitrex”]). As the ALJ also noted, in the March 15, 2009 report of a 25 comprehensive orthopedic evaluation plaintiff reportedly said that she had “neck 26 pain and tingling and numbness in the arms and hands” from injuring her neck at 27 work, she had been given “five epidural steroid injections which did not help” and 28 her condition“failed to improve on March 24, 2007,” but plaintiff also stated that 16 1 her “arm symptomology got significantly better” after plaintiff had surgery (i.e., 2 “anterior cervical diskectomy and fusion in C6-C7”). (AR 477). 3 Fourth, the ALJ properly gave less weight to plaintiff’s subjective 4 statements to the extent plaintiff failed to seek a level or frequency of medical 5 treatment that was consistent with the alleged severity of plaintiff’s subjective 6 symptoms. See Molina, 674 F.3d at 1113 (ALJ may properly consider 7 “unexplained or inadequately explained failure to seek treatment or to follow a 8 prescribed course of treatment” when evaluating claimant’s subjective complaints) 9 (citations and internal quotation marks omitted); SSR 16-3p, 2016 WL 1119029, 10 at *7-*8 (ALJ may give less weight to subjective statements where “the frequency 11 or extent of the treatment sought by an individual is not comparable with the 12 degree of the individual’s subjective complaints, or if the individual fails to follow 13 prescribed treatment that might improve symptoms. . . .”); SSR 96-7p, 1996 WL 14 374186, *7 (A “[claimant’s] statements may be less credible if the level or 15 frequency of treatment is inconsistent with the level of complaints, or if the 16 medical reports or records show that the individual is not following the treatment 17 as prescribed and there are no good reasons for this failure.”). For example, the 18 ALJ noted that the most recent medical evidence added to the record “show[ed] 19 sparse treatment and lack of medications. . . .” (AR 987; AR 986 [ALJ stating “the 20 objective treatment record shows that the [Plaintiff’s] condition seems to have 21 improved, judging by the sparse treatment other than emergency room visits on 22 multiple occasions for essentially unrelated complaints, such as a broken finger 23 and sinusitis”]; see also AR 985 (citing Exhibits 31F [AR 1160-77], 33F at 1 [AR 24 1181], 34F at 17 [AR 1231], 35F at 12 & 25 [AR 1259, 1272], 36F at 3 [AR 25 1299])). The ALJ also noted that plaintiff was “not under mental health treatment, 26 such as with medications,” that “there [was] no history of any psychiatric 27 hospitalizations,” and consequently that “[plaintiff’s] symptoms [were] seemingly 28 managed without any concerted mental health treatment. . . .” (AR 986). Plaintiff 17 1 testified at the Hearing that she had not sought mental health consistently, had 2 never been to a mental health clinic, and at that time was not taking any 3 medication for psychological symptoms. (AR 1014-15). Plaintiff also testified 4 that she had attempted “to get to the doctor so [she] could get some medication for 5 depression” but had been unable to do so because she kept “getting the same 6 runaround” when trying to schedule an appointment. (AR 1014). An ALJ may 7 not reject symptom testimony when a claimant provides “evidence of a good 8 reason” for not pursuing treatment. Smolen v. Chater, 80 F.3d 1273, 1284 (9th 9 Cir. 1996) (citations omitted). Here, however, the ALJ reasonably found that 10 since plaintiff had been able to obtain cosmetic dental work and other medical 11 care, “there [was] no good reason as to why [plaintiff] would be unable to access 12 mental health treatment if she felt the need to do so.” (AR 986). 13 Fifth, at the Hearing, the ALJ found “[plaintiff] coherent despite not being 14 on any medications [for her mental health].” (AR 986). The ALJ was permitted to 15 rely on her own observations of plaintiff at the hearing as one of the several 16 factors affecting plaintiff’s credibility. See SSR 16-3p, 2016 WL 1119029, *7 17 (ALJ “will consider any personal observations of the [claimant] in terms of how 18 consistent those observations are with the individual’s statements about his or her 19 symptoms as well as with all of the evidence in the file.”); see also Verduzco v. 20 Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) (when evaluating symptom testimony 21 ALJ may consider observations that claimant acted in manner at hearing that was 22 inconsistent with alleged disabling symptoms) (citation omitted). 23 Finally, the ALJ properly gave less weight to plaintiff’s subjective 24 complaints due, in part, to the absence of supporting objective medical evidence. 25 See Burch, 400 F.3d at 681 (“Although lack of medical evidence cannot form the 26 sole basis for discounting pain testimony, it is a factor that the ALJ can consider 27 . . . .”); SSR 16-3p, 2016 WL 1119029, at *5 (“[ALJ may] not disregard an 28 individual’s statements about the intensity, persistence, and limiting effects of 18 1 symptoms solely because the objective medical evidence does not substantiate the 2 degree of impairment-related symptoms alleged by the individual.”); SSR 96-7p, 3 1996 WL 374186, at *6 (same). 4 Accordingly, a reversal or remand is not warranted on this basis. 5 V. CONCLUSION 6 For the foregoing reasons, the decision of the Commissioner of Social 7 Security is affirmed. 8 LET JUDGMENT BE ENTERED ACCORDINGLY. 9 DATED: March 27, 2018 10 11 12 _____________/s/____________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19
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