Felicia Turner v. Nancy A Berryhill, No. 5:2017cv01343 - Document 29 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. The Agency's decision that Plaintiff is not disabled is affirmed and the case is dismissed with prejudice. (See document for further details.) (sbou)
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Felicia Turner v. Nancy A Berryhill Doc. 29 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 FELICIA TURNER, 11 12 13 14 15 Plaintiff, v. NANCY A. BERRYHILL, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 17-1343-PJW MEMORANDUM OPINION AND ORDER 16 17 I. 18 INTRODUCTION 19 Plaintiff appeals a decision by Defendant Social Security 20 Administration (“the Agency”), denying her applications for Disability 21 Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). 22 She contends that the Administrative Law Judge (“ALJ”) failed to 23 provide clear and convincing reasons for rejecting her testimony about 24 her carpal tunnel syndrome. 25 ALJ’s decision is affirmed. For the reasons discussed below, the 26 27 28 Dockets.Justia.com 1 II. 2 SUMMARY OF PROCEEDINGS 3 In June 2013, Plaintiff applied for DIB and SSI, alleging that 4 she had been disabled since June 2012, due to “degenerative joint, 5 cervical spine disease.” 6 She later reported hair loss, weight gain, pain on the bottom of her 7 left heel, constant pain in her neck, and emotional stress. 8 260.) 9 going through them [and her] fingers stay numb.” (Administrative Record (“AR”) 166-76, 195.) (AR 244, She claimed in addition that her “hands feel like electricity (AR 260.) Her 10 applications were denied initially and on reconsideration and she 11 requested and was granted a hearing before an ALJ. 12 28.) 13 finding that she was not disabled. 14 appealed to the Appeals Council, which denied review. 15 action followed. (AR 58-109, 125- Following a hearing in November 2015, the ALJ issued a decision, (AR 11-22, 29-57.) 16 III. 17 ANALYSIS Plaintiff (AR 1-7.) This 18 Plaintiff contends that the ALJ failed to provide adequate 19 reasons for rejecting her testimony that she is unable to do anything 20 that involves handling, fingering, feeling, pushing, or pulling, 21 testimony which, if believed, would preclude all work. 22 at 4-12.) 23 did not err. 24 (Joint Stip. For the following reasons, the Court concludes that the ALJ ALJs are tasked with judging a claimant’s credibility. Andrews 25 v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 26 rely on “ordinary techniques of credibility evaluation.” 27 Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (quoting Smolen v. Chater, 28 80 F.3d 1273, 1284 (9th Cir. 1996)). 2 In doing so, they can Ghanim v. Where there is no evidence of 1 malingering, however, they can only reject a claimant’s testimony for 2 specific, clear, and convincing reasons that are supported by 3 substantial evidence in the record. 4 664, 678 (9th Cir. 2017) (citing Garrison v. Colvin, 759 F.3d 995, 5 1014–15 (9th Cir. 2014)).1 6 Trevizo v. Berryhill, 871 F.3d Plaintiff testified that she suffers from pain in her neck that 7 goes down her left arm and left side to her feet. 8 complained that her right hand “cramps up” when she writes and she 9 gets tingling and numbness in her fingers. (AR 41, 46.) (AR 42, 44.) She In a 10 Function Report, Plaintiff explained that she has pain on the “whole 11 left side” of her body and her “left hand cramps up [and] my index 12 finger stay[s] numb.” 13 the energy to do anything because of the pain. 14 she takes care of her son and her mother, cooking and driving when 15 needed, with help from her daughter. 16 she is able to clean and do laundry, but has a hard time holding her 17 27-pound grandchild. (AR 223.) She reported that she does not have (AR 224.) She also reported that She explained that (AR 225, 228.) 18 19 20 21 22 23 24 25 26 27 28 1 In March 2016, after the ALJ issued his decision in this case, Social Security Ruling (“SSR”) 16–3p went into effect. See SSR 16–3p, 2016 WL 1119029 (Mar. 16, 2016). SSR 16-3p supersedes SSR 96–7p, the Agency’s previous policy governing the evaluation of subjective symptoms. Id. at *1. Under 16–3p, ALJs were directed not to “assess an individual’s overall character or truthfulness in the manner typically used during an adversarial court litigation. The focus on the evaluation of an individual’s symptoms should not be to determine whether he or she is a truthful person.” Id. at *10. Instead, ALJs “consider all of the evidence in an individual’s record,” “to determine how symptoms limit ability to perform work-related activities.” Id. at *2. The Ninth Circuit has explained, however, that this change is generally just stylistic and “does not alter the pre-existing standards in the Ninth Circuit for evaluating a claimant’s symptom testimony.” Petersen v. Berryhill, 2018 WL 3030775, at *1 n.1 (9th Cir. June 19, 2018) (citing Trevizo, 871 F.3d at 678 n.5). 3 1 In a Pain Questionnaire, Plaintiff reported that her pain is 2 located in her “neck, shoulder leg/left side, hands.” (AR 249.) She 3 noted that she uses hand braces for carpal tunnel in both hands. (AR 4 250.) 5 assistance, but she needs her daughter to go shopping with her to 6 carry groceries. 7 She explained further that she can do some errands without (AR 251.) Despite this testimony, the ALJ determined that Plaintiff could 8 engage in “frequent performance of manipulative activities” with both 9 hands. (AR 16.) In doing so, the ALJ discounted Plaintiff’s 10 testimony because: (1) her daily activities were not consistent with 11 an inability to work; (2) the lack of aggressive treatment suggested 12 that her symptoms and limitations were not as severe as she alleged; 13 (3) any positive objective findings did not support more restrictive 14 functional limitations; and (4) no “reliable” medical report endorsed 15 the extent of Plaintiff’s alleged limitations. 16 (AR 17-18.) Generally speaking, these are valid reasons for questioning a 17 claimant’s testimony. 18 2007) (holding ALJ can consider claimant’s ability to perform daily 19 activities in assessing credibility); Meanel v. Apfel, 172 F.3d 1111, 20 1114 (9th Cir. 1999) (holding inconsistency between allegations of 21 severe pain and conservative treatment was proper basis for 22 discounting credibility); Rollins v. Massanari, 261 F.3d 853, 857 (9th 23 Cir. 2001) (noting ALJ can consider objective medical evidence in 24 determining credibility of claimant). 25 conclusion that Plaintiff’s daily activities undermine her testimony 26 is not supported by substantial evidence, the rest of his reasons are. 27 28 See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. Further, though the ALJ’s The ALJ questioned Plaintiff’s claim of extreme limitations due to her carpal tunnel syndrome in light of her ability to watch 4 1 television, take medication, drive, shop for groceries (with her 2 daughter’s help), clean, and do laundry. 3 agree that these limited activities are inconsistent with her claimed 4 inability to work. 5 activities that would seem to involve very little use of the arms and 6 hands. 7 laundry, it is not clear from the record whether Plaintiff performed 8 these chores all day long or whether she did so sporadically during 9 the day or the week. 10 (AR 17.) The Court does not Watching television and taking medication are As for grocery shopping (with help), cleaning, and doing As such, this is not a valid reason to discount Plaintiff’s testimony.2 11 The ALJ’s finding that Plaintiff did not receive aggressive 12 treatment for carpal tunnel syndrome is supported by the record. 13 17.) 14 recommended surgery for her carpal tunnel and she did not seek surgery 15 for it on her own. 16 conclude that if Plaintiff’s carpal tunnel was so debilitating that it 17 prevented her from lifting and writing that she would have sought out 18 and received more aggressive treatment. 19 (AR None of her doctors, including an orthopedic specialist she saw, It was reasonable, therefore, for the ALJ to Plaintiff disagrees with this analysis. She points out that she 20 took Norco and Vicodin for pain. 21 she was prescribed these medications for her neck and back pain, not 22 her carpal tunnel pain. But it appears from the records that (AR 310-12, 314, 316-17, 386.) Thus, the ALJ 23 24 25 26 27 28 2 The Agency argues that Plaintiff’s ability to perform daily activities shows that she must be exaggerating when she claims that she cannot use her hands. (Joint Stip. at 20.) But the ALJ did not rely on this argument when analyzing her credibility and, as such, the Court is not at liberty to do so here. See Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) (“[W]e cannot affirm the decision of an agency on a ground that the agency did not invoke in making its decision.”) (citation omitted). 5 1 did not err in concluding that the lack of aggressive treatment 2 undermined her claims of pain. 3 The ALJ also found that the objective evidence did not support 4 more restrictive functional limitations, given the record evidence 5 pertaining to carpal tunnel syndrome. 6 supported by the record. 7 (AR 18.) This finding is also The evidence regarding carpal tunnel was limited and showed only 8 a nerve conduction study revealing findings consistent with mild 9 carpal tunnel syndrome in August 2013 and tenderness to palpation of 10 both wrists in March 2015. 11 treatment records, however, do not even list carpal tunnel in the 12 diagnosis or treatment plan sections. 13 388.) 14 (AR 18, 293, 361.) The majority of the (AR 371-72, 376, 380, 383, Plaintiff argues that the ALJ failed to consider the positive 15 Tinel’s test at the consultative examination in February 2014. 16 Stip. at 10.) 17 carpal tunnel evidence, he did mention it in the next paragraph when 18 discussing the consultative examiner’s objective findings. 19 He noted that, despite the positive Tinel’s test, the consultative 20 examiner concluded that Plaintiff was capable of frequent manipulative 21 activities with both hands. 22 revealed no significant deformities, no tenderness, well-preserved 23 fine and gross manipulations, negative Phalen’s, no thenar muscle 24 atrophy, intact range of motion of all digits, full abduction and 25 adduction of the thumbs, ability to make a complete fist, and equal 26 grip strength on both hands. 27 these records in evaluating Plaintiff’s credibility. 28 they did not support her claims is supported by the record. (Joint Although the ALJ did not mention it when discussing the (AR 18, 330, 332.) (AR 330.) 6 (AR 18.) The examination also The ALJ was free to consider His finding that 1 Finally, the ALJ discounted Plaintiff’s credibility because he 2 found “no reliable medical source statement from any physician 3 endorsing the extent of [Plaintiff’s] alleged functional limitations.” 4 (AR 17.) 5 evidence. 6 This justification is also supported by substantial Plaintiff’s treating physician, Dr. Symonett, is the only doctor 7 to have opined that Plaintiff’s carpal tunnel syndrome severely 8 limited her ability to function. 9 reach overhead, handle, finger, feel, push, or pull with her right He found that she was unable to 10 hand. 11 he found that these limitations were not consistent with the doctor’s 12 objective findings. 13 ALJ’s rejection of this opinion. 14 is no medical opinion that supports Plaintiff’s claim of disabling 15 pain. 16 (AR 354-59.) The ALJ discounted Dr. Symonett’s opinion because (AR 18-19.) Plaintiff has not challenged the Absent Dr. Symonett’s opinion, there In the end, all but one of the reasons cited by the ALJ are 17 supported by the record. 18 to uphold the ALJ’s finding on credibility. 19 Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008) (holding 20 error is harmless if substantial evidence remains to support the ALJ’s 21 credibility finding). And these remaining reasons are sufficient 22 23 24 25 26 27 28 7 See Carmickle v. Comm’r, 1 IV. 2 CONCLUSION 3 For the reasons set forth above, the Agency’s decision that 4 Plaintiff is not disabled is affirmed and the case is dismissed with 5 prejudice. 6 IT IS SO ORDERED. 7 DATED: September 7, 2018 8 9 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S:\PJW\Cases-Social Security\TURNER, F 1343\Memo Opinion.wpd 8
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