Cynthia Rosales v. Nancy A. Berryhill, No. 5:2017cv01845 - Document 18 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION by Magistrate Judge Charles F. Eick. Plaintiff's motion for summary judgment is denied and Defendant's motion for summary judgment is granted. (sp)
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Cynthia Rosales v. Nancy A. Berryhill Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 CYNTHIA ROSALES, ) ) Plaintiff, ) ) v. ) ) NANCY A. BERRYHILL, Acting ) Commissioner of Social Security, ) ) Defendant. ) ____________________________________) NO. ED CV 17-1845-E MEMORANDUM OPINION 17 18 PROCEEDINGS 19 20 Plaintiff filed a complaint on September 11, 2017, seeking review 21 of the Commissioner’s denial of benefits. The parties consented to 22 proceed before a United States Magistrate Judge on November 6, 2017. 23 Plaintiff filed a motion for summary judgment on January 25, 2018. 24 Defendant filed a motion for summary judgment on February 26, 2018. 25 The Court has taken the motions under submission without oral 26 argument. 27 /// 28 /// See L.R. 7-15; “Order,” filed September 13, 2017. Dockets.Justia.com 1 BACKGROUND 2 3 Plaintiff asserted disability since May 1, 2012, based on several 4 alleged impairments (Administrative Record (“A.R.”) 182-83,202). The 5 Administrative Law Judge (“ALJ”) examined the record and heard 6 testimony from Plaintiff and a vocational expert (A.R. 20-177, 182- 7 305, 315-569). 8 9 The ALJ found Plaintiff “has the following severe impairments: 10 systemic lupus erythematosus, seizure disorder, obesity, and 11 headaches” (A.R. 25). 12 the residual functional capacity to perform a reduced range of light 13 work (A.R. 29). 14 expert, the ALJ determined that a person having this capacity can 15 perform Plaintiff’s past relevant work (A.R. 32-33, 57). 16 Council denied review (A.R. 1-2). However, the ALJ also found Plaintiff retains In reliance on the testimony of the vocational The Appeals 17 18 SUMMARY OF PARTIES’ CONTENTIONS 19 20 Plaintiff contends, and Defendant denies, that the ALJ failed to 21 state legally sufficient reasons for discounting Plaintiff’s testimony 22 and statements regarding the intensity and persistence of Plaintiff’s 23 subjective symptomatology. 24 /// 25 /// 26 /// 27 /// 28 /// 2 1 STANDARD OF REVIEW 2 3 Under 42 U.S.C. section 405(g), this Court reviews the 4 Administration’s decision to determine if: (1) the Administration’s 5 findings are supported by substantial evidence; and (2) the 6 Administration used correct legal standards. 7 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 8 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner 9 of Social Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). See Carmickle v. 10 Substantial evidence is “such relevant evidence as a reasonable mind 11 might accept as adequate to support a conclusion.” 12 Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); 13 see Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). Richardson v. 14 15 If the evidence can support either outcome, the court may 16 not substitute its judgment for that of the ALJ. 17 Commissioner’s decision cannot be affirmed simply by 18 isolating a specific quantum of supporting evidence. 19 Rather, a court must consider the record as a whole, 20 weighing both evidence that supports and evidence that 21 detracts from the [administrative] conclusion. But the 22 23 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 24 quotations omitted). 25 /// 26 /// 27 /// 28 /// 3 1 DISCUSSION 2 3 After consideration of the record as a whole, Defendant’s motion 4 is granted and Plaintiff’s motion is denied. The Administration’s 5 findings are supported by substantial evidence and are free from 6 material1 legal error. 7 8 9 Contrary to Plaintiff’s arguments, the ALJ stated legally sufficient reasons for discounting Plaintiff’s testimony and 10 statements. An ALJ’s assessment of the accuracy of a claimant’s 11 testimony and statements regarding symptomatology is entitled to 12 “great weight.” 13 Cir. 1990); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). 14 Where, as here, the ALJ finds that the claimant’s medically 15 determinable impairments reasonably could be expected to cause some 16 degree of the alleged symptoms of which the claimant subjectively 17 complains, any discounting of the claimant’s complaints must be 18 supported by specific, cogent findings. 19 1228, 1234 (9th Cir. 2010); Lester v. Chater, 81 F.3d 821, 834 (9th 20 Cir. 1995); but see Smolen v. Chater, 80 F.3d 1273, 1282-84 (9th Cir. 21 1996) (indicating that ALJ must offer “specific, clear and convincing” 22 reasons to reject a claimant’s testimony where there is no evidence of 23 /// 24 /// See Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th See Berry v. Astrue, 622 F.3d 25 26 1 27 28 The harmless error rule applies to the review of administrative decisions regarding disability. See Garcia v. Commissioner, 768 F.3d 925, 932-33 (9th Cir. 2014); McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011). 4 1 malingering).2 2 allow a reviewing court to conclude the ALJ rejected the claimant’s 3 testimony on permissible grounds and did not arbitrarily discredit the 4 claimant’s testimony.” 5 Cir. 2004) (internal citations and quotations omitted); see also 6 Social Security Ruling 16-3p.3 7 legally sufficient reasons for deeming Plaintiff’s subjective 8 complaints less than fully accurate. An ALJ’s findings “must be sufficiently specific to See Moisa v. Barnhart, 367 F.3d 882, 885 (9th As discussed below, the ALJ stated 9 10 As the ALJ pointed out, Plaintiff’s testimony and written 11 statements regarding the severity of her symptomatology were 12 inconsistent with reports Plaintiff made to third party medical 13 examiners (A.R. 30-31). 14 pain of disabling severity (A.R. 50-51). 15 medical examiner only “minimal” pain that “goes away with massage” For example, Plaintiff testified to daily Yet, Plaintiff reported to a 16 17 18 19 20 21 22 23 24 25 26 27 28 2 In the absence of an ALJ’s reliance on evidence of “malingering,” most recent Ninth Circuit cases have applied the “clear and convincing” standard. See, e.g., Brown-Hunter v. Colvin, 806 F.3d 487, 488-89 (9th Cir. 2015); Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014); Treichler v. Commissioner, 775 F.3d 1090, 1102 (9th Cir. 2014); Ghanim v. Colvin, 763 F.3d 1154, 1163 n.9 (9th Cir. 2014); Garrison v. Colvin, 759 F.3d 995, 1014-15 & n.18 (9th Cir. 2014); see also Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting earlier cases). In the present case, the ALJ’s findings are sufficient under either standard, so the distinction between the two standards (if any) is academic. 3 Social Security Rulings (“SSRs”) are binding on the Administration. See Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). SSR 16-3p superseded SSR 96-7p, but may have “implemented a change in diction rather than substance.” R.P. v. Colvin, 2016 WL 7042259, at *9 n.7 (E.D. Cal. Dec. 5, 2016); see also Treviso v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (suggesting that SSR 16-3p “makes clear what our precedent already required”). 5 1 (A.R. 501). For further example, Plaintiff asserted that seizures 2 prevent her from working (A.R. 48, 55, 202, 256, 259-61). Yet, 3 Plaintiff reported to a medical examiner during the period of alleged 4 disability that she had not had any seizures for more than seven 5 months (A.R. 486). 6 reported to a medical examiner that her seizures, headaches and 7 “memory loss” had improved with medication (A.R. 482, 519). 8 properly may discount the accuracy of a claimant’s testimony based on 9 inconsistencies in the claimant’s own reports of her symptoms. Additionally, in January of 2015, Plaintiff An ALJ See, 10 e.g., Khanishian v. Astrue, 238 Fed. App’x 250, 252 (9th Cir. 2007); 11 Gregor v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006). 12 “[i]mpairments that can be controlled effectively with medication are 13 not disabling. . . .” 14 Cir. 2006). 15 medication, Plaintiff’s seizure disorder and headaches are not 16 disabling (see, e.g., A.R. 469, 478, 494, 519; see also A.R. 385 (even 17 when not on medication, Plaintiff reported having had only two 18 seizures in six months). Moreover, Warre v. Commissioner, 439 F.3d 1001, 1006 (9th Record evidence permits the conclusion that, with 19 20 The ALJ also pointed out that Plaintiff has been noncompliant 21 with prescribed or recommended medication (A.R. 30). 22 Plaintiff claims to suffer disabling pain from lupus, Plaintiff told 23 medical examiners she would not take medication for lupus because she 24 “tried not to take medications if not needed” (A.R. 481-82, 485-86, 25 494, 501; see also A.R. 490 (In July of 2015, Plaintiff reportedly 26 /// 27 /// 28 /// 6 Although 1 refused medication for lupus because her lupus was “under control”).4 2 Noncompliance with prescribed or recommended treatment can properly 3 suggest that a claimant’s symptoms have not been as severe as the 4 claimant has asserted. 5 1989) (unexplained or inadequately explained failure to follow 6 prescribed course of treatment can cast doubt on claimant’s 7 credibility); see also Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 8 2012) (“We have long held that, in assessing a claimant’s credibility 9 the ALJ may properly rely on unexplained or inadequately explained See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 10 failure . . . to follow a prescribed course of treatment”) (citations 11 and quotations omitted); SSR 16-3p (“if the individual fails to follow 12 prescribed treatment that might improve symptoms, we may find that the 13 alleged intensity and persistence of an individual’s symptoms are 14 inconsistent with the overall evidence of record”). 15 16 The ALJ also relied on the objective medical evidence to discount 17 Plaintiff’s testimony and statements (A.R. 30-31). While a lack of 18 objective medical evidence to corroborate the claimed severity of 19 alleged symptomatology cannot form the “sole” basis for discounting 20 the accuracy of a claimant’s testimony and statements, the objective 21 medical evidence is still a relevant factor. 22 400 F.3d 676, 680 (9th Cir. 2005); Rollins v. Massanari, 261 F.3d 853, 23 857 (9th Cir. 2001). See Burch v. Barnhart, Here, the medical evidence suggests Plaintiff’s 24 4 25 26 27 28 Plaintiff has offered a number of inconsistent excuses for refusing lupus medication. The ALJ was not required to accept any of these excuses, including the excuse relating to claimed side effects from a particular lupus medication (see, e.g., A.R. 339). There is no evidence Plaintiff sought out from her doctors other medications or treatments that might not produce the assertedly undesired side effects. 7 1 problems have not been, and are not now, as profound as she has 2 claimed. 3 impairments completely disable her from employment. 4 Shalala, 10 F.3d 678, 680 (9th Cir. 1993) (in upholding the 5 Administration’s decision, the Court emphasized: “None of the doctors 6 who examined [claimant] expressed the opinion that he was totally 7 disabled”); accord Curry v. Sullivan, 925 F.2d 1127, 1130 n.1 (9th 8 Cir. 1990). Notably, no physician of record opined that Plaintiff’s See Matthews v. 9 10 The ALJ also mentioned several of Plaintiff’s admitted daily 11 activities (A.R. 30). Inconsistencies between admitted activities and 12 claimed incapacity properly may impugn the accuracy of a claimant’s 13 testimony and statements under certain circumstances. 14 Thune v. Astrue, 499 Fed. App’x 701, 703 (9th Cir. 2012) (ALJ properly 15 discredited pain allegations as contradicting claimant’s testimony 16 that she gardened, cleaned, cooked, and ran errands); Stubbs-Danielson 17 v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008) (claimant’s “normal 18 activities of daily living, including cooking, house cleaning, doing 19 laundry, and helping her husband in managing finances” was sufficient 20 explanation for discounting claimant’s testimony). 21 difficult to reconcile certain Ninth Circuit opinions discussing when 22 a claimant’s daily activities properly may justify a discounting of 23 the claimant’s testimony and statements. 24 Astrue with Vertigan v. Halter, 260 F.3d 1044, 1049-50 (9th Cir. 2001) 25 (“the mere fact that a plaintiff has carried on certain daily 26 activities, such as grocery shopping, driving a car, or limited 27 walking for exercise, does not in any way detract from her credibility 28 as to her overall disability”); see also Diedrich v. Berryhill, 874 8 See, e.g., However, it is Compare Stubbs-Danielson v. 1 F.3d 634, 642-43 (9th Cir. 2017) (daily activities of cooking, 2 household chores, shopping and caring for a cat insufficient to 3 discount the claimant’s subjective complaints). 4 difficulty in reconciling such cases, the Court in the present case 5 elects not to rely on the ALJ’s findings regarding Plaintiff’s 6 admitted activities. 7 partial reliance on Plaintiff’s admitted activities was improper, the 8 Court nevertheless upholds the ALJ’s determination. 9 v. Commissioner, 533 F.3d at 1163, the infirmity of one or two Because of the Assuming arguendo that the ALJ’s arguable Under Carmickle 10 supporting reasons for an ALJ’s determination regarding subjective 11 symptoms does not require overturning the determination if 12 independently valid supporting reasons remain. 13 independently valid supporting reasons remain in the present case. As discussed above, 14 15 In sum, the ALJ stated sufficient reasons to allow the Court to 16 conclude that the ALJ discounted Plaintiff’s testimony and statements 17 on permissible grounds. 18 Court therefore defers to the ALJ’s determination. 19 Astrue, 252 Fed. App’x 823, 825 (9th Cir. 2007) (court will defer to 20 ALJ’s determination when the proper process is used and proper reasons 21 for the decision are provided); accord Flaten v. Secretary of Health & 22 Human Services, 44 F.3d 1453, 1464 (9th Cir. 1995).5 See Moisa v. Barnhart, 367 F.3d at 885. See Lasich v. 23 24 25 26 27 28 5 The Court should not and does not determine de novo the accuracy of Plaintiff’s testimony and statements concerning her subjective symptomatology. Some evidence suggests that her testimony and statements may be accurate. However, it is for the Administration, and not this Court, to evaluate the accuracy of Plaintiff’s testimony and statements regarding the intensity and persistence of Plaintiff’s subjective symptomatology. See Magallanes v. Bowen, 881 F.2d 747, 750, 755-56 (9th Cir. 1989). 9 The 1 CONCLUSION 2 3 For all of the reasons discussed herein, Plaintiff's motion for 4 summary judgment is denied and Defendant’s motion for summary judgment 5 is granted. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: March 13, 2018. 10 11 12 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
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