Laura Bryant v. Nancy A Berryhill, No. 5:2018cv00422 - Document 20 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION by Magistrate Judge Alka Sagar. The decision of the Commissioner is AFFIRMED. (See document for complete details) (afe)
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Laura Bryant v. Nancy A Berryhill Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA – EASTERN DIVISION 10 11 LAURA BRYANT, Case No. EDCV 18-0422-AS 12 Plaintiff, MEMORANDUM OPINION 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner Of Social Security, 16 Defendant. 17 18 19 20 21 22 23 24 25 26 27 28 Dockets.Justia.com 1 PROCEEDINGS 2 3 On March 1, 2018, Plaintiff filed a Complaint seeking review 4 of the Commissioner’s denial of Plaintiff’s applications for a 5 period of disability and disability insurance benefits (“DIB”), 6 and 7 Titles II and XVI of the Social Security Act. 8 August 8, 2018, Defendant filed an Answer and the Administrative 9 Record (“AR”). supplemental security income (Dkt. Nos. 14-15). (“SSI”), respectively, under (Dkt. No. 1). On The parties have consented to 10 proceed before the undersigned United States Magistrate Judge. 11 (Dkt. Nos. 12, 17-18). 12 Joint Stipulation (“Joint Stip.”) setting forth their respective 13 positions regarding Plaintiff’s claim. 14 has taken this matter under submission without oral argument. 15 See C.D. Cal. C. R. 7-15. On November 6, 2018, the parties filed a (Dkt. No. 16). The Court 16 17 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 18 19 On December 29, 2013, Plaintiff, formerly employed as a 20 caregiver and a legal secretary (see AR 42-45, 223, 264), filed 21 an application for DIB alleging a disability onset date of June 22 11, 2008. (AR 173). 23 application for 24 Plaintiff’s applications were denied initially on April 14, 2014 25 (AR 106-09), and on reconsideration on September 25, 2014. 26 113-18). SSI On June 17, 2014, Plaintiff filed an alleging the 27 28 2 same onset date. (AR 177). (AR 1 On August 26, 2016, Administrative Law Judge Mason D. who was 2 Harrell, 3 represented by counsel, and vocational expert (“VE”) Troy Scott. 4 (See AR 39-62). 5 denying Plaintiff’s applications. Jr. (“ALJ”) heard testimony from Plaintiff, On September 21, 2016, the ALJ issued a decision (See AR 22-34). 6 7 The ALJ applied the requisite five-step process to evaluate 8 Plaintiff’s case. 9 the insured status requirements through December 31, 2012, and 10 had not been engaged in substantial gainful activity since her 11 alleged disability onset date of June 11, 2008. At step one, the ALJ found that Plaintiff met (AR 24). 12 13 At step two, the ALJ found that Plaintiff’s degenerative 14 disc disease of the spine was a severe impairment but Plaintiff’s 15 impairments of depression and history of alcohol abuse were not 16 severe. (AR 24-27). 17 18 At step three, the ALJ determined that Plaintiff’s 19 impairments did not meet or equal a listing found in 20 C.F.R 20 Part 404, Subpart P, Appendix 1. 21 that Plaintiff had the following Residual Functional Capacity 22 (“RFC”)1: (AR 27). Next, the ALJ found 23 24 25 26 27 28 1 A Residual Functional Capacity is what a claimant can still do despite existing exertional and nonexertional limitations. See 20 C.F.R §§ 404.1545(a)(1), 416.945(a)(1). 3 1 2 3 4 5 6 7 8 [Plaintiff can] perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a):2 she can lift 10 pounds frequently and occasionally. Except, she can occasionally use a cane to walk. [Plaintiff] can frequently push or pull. She can stand and walk for two hours out of an eighthour workday at 10-minutes at a time. [Plaintiff] can sit for six hours out of an eight-hour workday at 30 minutes at a time. She can stand and stretch for up to a minute before sitting down again. She can occasionally climb, balance, kneel, crawl, and walk on uneven terrain. [Plaintiff] can never climb ladders, ropes, or scaffolds. She can never work at unprotected heights. (AR 28). 9 10 11 12 13 14 15 16 17 18 19 20 21 22 At step testimony, four, that the Plaintiff ALJ is determined, based on the VE’s capable performing her past of relevant work as a legal secretary as actually and generally performed. (AR alternative finding, perform other 32-33). work at The step ALJ then five, existing in proceeded that to Plaintiff substantial numbers national economy – specifically, as a telemarketer. make can in an also the (AR 33-34). The ALJ thus determined that Plaintiff is not disabled. (AR 34). On January 9, 2018, the Appeals Council denied Plaintiff’s request to review the ALJ’s decision. (See AR 1-6). Plaintiff now seeks judicial review of the ALJ’s decision, which stands as the final decision of the Commissioner. See 42 U.S.C. §§ 405(g), 1383(c). 23 24 25 26 27 28 2 “Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. §§ 404.1567(a), 416.967(a). 4 STANDARD OF REVIEW 1 2 3 This 4 determine 5 substantial evidence. 6 (9th Cir. 2012). 7 scintilla, but less than a preponderance. 8 759 9 substantial evidence supports a finding, “a court must consider 10 the record as a whole, weighing both evidence that supports and 11 evidence 12 Aukland 13 (internal quotation omitted). 14 can support either affirming or reversing the ALJ’s conclusion, 15 [a court] may not substitute [its] judgment for that of the ALJ.” 16 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). F.3d Court if it 995, that v. reviews the is of free Administration’s legal error and decision to supported by See Brewes v. Comm’r, 682 F.3d 1157, 1161 “Substantial evidence” is more than a mere 1009 (9th detracts Massanari, Cir. from 257 2014). the F.3d Garrison v. Colvin, To determine [Commissioner’s] 1033, 1035 whether conclusion.” (9th Cir. 2001) As a result, “[i]f the evidence 17 PLAINTIFF’S 18 CONTENTIONS 19 Plaintiff claims that (1) the ALJ failed to properly assess 20 21 the medical opinions in the record; 22 properly consider her subjective testimony; and (3) the ALJ’s 23 findings at steps four and five are not supported by substantial 24 evidence. (See Joint Stip. at 4-29). 25 26 27 28 5 (2) the ALJ failed to 1 DISCUSSION 2 3 After consideration of the record as a whole, the Court 4 finds 5 substantial evidence and are free from material legal error.3 that the Commissioner’s findings are supported by 6 7 A. 8 9 10 11 12 13 14 The ALJ Did Not Err in Assessing the Medical Opinions Plaintiff claims that the ALJ erred in assessing the opinions of multiple medical opinions in the record, including Plaintiff’s treating physician, Dr. Ikechi Obiocha, M.D.; consultative examiners Dr. Ulin Sargeant, M.D., and Dr. Earbin Stanciell, M.D.; and state agency consultative reviewers Dr. G. Johnson, M.D., and Dr. H. Han, M.D. (See Joint Stip. at 4-7, 13- 15). 15 16 1. Applicable Law 17 Although a treating physician’s opinion is generally 18 afforded the greatest weight in disability cases, it is not 19 binding on an ALJ with respect to the existence of an impairment 20 or the ultimate determination of disability. Batson v. Comm'r of 21 Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); Magallanes 22 v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). “Generally, a 23 treating physician’s opinion carries more weight than an 24 examining physician’s, and an examining physics opinion carries 25 26 27 28 3 The harmless error rule applies to the review administrative decisions regarding disability. See McLeod Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, F.3d 676, 679 (9th Cir. 2005) (an ALJ’s decision will not reversed for errors that are harmless). 6 of v. 400 be 1 more weight than a reviewing physician’s.” 2 246 F.3d 1195, 1202 (9th Cir. 2001); see also Lester v. Chater, 3 81 F.3d 821, 830 (9th Cir. 1995). 4 physician’s 5 sufficient medical data and is consistent with other evidence in 6 the record. 7 871 8 opinion is not controlling, it is weighted based on factors such 9 as the length of the treatment relationship and the frequency of 10 examination, the nature and extent of the treatment relationship, 11 supportability, 12 specialization of the physician. F.3d opinion depends on Holohan v. Massanari, The weight given a treating whether it is supported by 20 C.F.R. § 416.927(c)(2); see Trevizo v. Berryhill, 664 (9th Cir. 2017). consistency When with the a treating record as a physician’s whole, and 20 C.F.R. § 416.927(c)(2)-(6). 13 14 If a treating or examining doctor’s opinion is contradicted 15 by another doctor, the ALJ must provide “specific and legitimate 16 reasons” for rejecting the opinion. 17 632 18 However, 19 contradicted by another doctor, the ALJ can reject the opinion 20 only 21 Commissioner, 533 F.3d 1155, 1164 (9th Cir. 2008); Lester, 81 22 F.3d at 830-31. (9th for Cir. if a 2007); treating “clear and Lester or v. Orn v. Astrue, 495 F.3d 625, Chater, examining convincing 81 doctor’s reasons.” F.3d at opinion 830-31. is Carmickle not v. 23 24 25 26 27 2. Dr. Obiocha Plaintiff contends that the ALJ erred by failing to properly discuss and weigh the records of treating physician Dr. Obiocha, (see Joint Stip. at 4-5, 13-15), noting that Dr. Obiocha treated 28 7 1 her 2 including hip deformity, bilateral hand numbness, thumb pain, 3 anxiety, 4 chronic pain syndrome. (Id. at 4 (citing AR 367)). 5 points Dr. Obiocha’s 6 tenderness hip and 7 (citing 8 contends, 9 considered Dr. Obiocha’s records only “in passing, and without for a variety leg of cramps, out that in AR the 376, the conditions shoulder other pain, chronic objective arthralgia 388)). Despite never referenced ALJ than in such Dr. her lower pelvic pain, include fingers. evidence, Obiocha by and Plaintiff findings her back, (Id. Plaintiff name, and 10 reference 11 Plaintiff asserts that the ALJ merely included “a few pinpoint 12 cites 13 (without 14 reference Exhibit 5F, the underlying records from Dr. Obiocha.” 15 (Id. 16 significant, as they are SOAP notes and document Ms. Bryant’s 17 reports of pain.” to from at any hip Exhibit referring 14). or 9F, to a the According 4 hand impairments.” portion provider to of by Plaintiff, Dr. (Id. Obiocha’s name),” but “[t]hese at 4-5). records “did records not are (Id.). 18 19 Plaintiff fails to point to any “opinion” by Dr. Obiocha 20 that the ALJ failed to address regarding Plaintiff’s physical or 21 mental limitations. 22 notes but does not include any overall assessment by the treating 23 physician. The record contains Dr. Obiocha’s treatment However, to the extent that Dr. Obiocha’s treatment 24 25 26 27 28 4 The “SOAP” - subjective, objective assessment and plan format is a way of organizing physician progress notes. See https://www.healthcareitnews.com/rethinking-progress-note. 8 1 notes constitute “opinion” evidence,5 any error to specifically 2 assess such evidence is harmless. 3 4 The ALJ considered all the medical evidence and opinions in 5 the record, and sufficiently discussed Dr. Obiocha’s treatment 6 notes, finding that they did not support greater restrictions 7 that the RFC determination. 8 Obiocha’s records reflect generally benign, normal findings, 9 30 (citing AR 376-77, 381-82, 387-88, 416-17, 444)), and that 10 Plaintiff had received conservative treatment, mainly involving 11 refills of pain medications.6 12 Substantial 13 Plaintiff typically saw Dr. Obiocha for routine medical visits 14 and medication refills. 15 425, 431, 447, 457, 471). evidence in the The ALJ noted, for example, that Dr. (AR (AR 30 (citing AR 442, 445)). record supports this finding, as (See, e.g., AR 373, 379, 385, 391, 420, 16 17 18 5 19 20 21 22 23 24 25 26 27 28 The notes may be considered “opinions” insofar as they “reflect judgments about the nature and severity of [Plaintiff’s] impairment(s), including [her] symptoms, diagnosis and prognosis.” 20 C.F.R. § 404.1527; see also Marsh v. Colvin, 792 F.3d 1170, 1173 n.1 (9th Cir. 2015) (quoting 20 C.F.R. § 404.1527) (“Dr. Betat's SOAP notes are ‘medical opinion,’ because they contain ‘statements from [Dr. Betat] that reflect judgments about the nature and severity of [Marsh's] impairment(s), including [her] symptoms, diagnosis and prognosis, what [she] can still do despite her impairment(s), and [her] physical or mental restrictions.’” (quoting 20 C.F.R. § 404.1527)). 6 Plaintiff testified that aside from medications, her physician gave her an epidural steroid injection in her back once, about a month before the hearing, and she was due for another the following week. (AR 53). She also stated that a surgeon had recently recommended back and hip surgery, but none had been scheduled. (AR 53-54). 9 1 Although Dr. Obiocha treated Plaintiff for a variety of 2 conditions other than back pain, such as hand numbness and hip 3 and 4 restrictions 5 diagnostic 6 shoulder, pelvis, and hands generally showed, at most, “mild” 7 degenerative changes throughout the relevant period. 8 AR 287, 288, 299, 300, 312, 317-18, 330, 343, 486-87, 495-96, 9 498). shoulder pain, than none the imaging of these ALJ’s studies RFC of conditions warrant determination. Plaintiff’s For lumbar greater example, spine, left (See, e.g., The ALJ acknowledged Plaintiff’s complaints of shoulder 10 pain, which began after a fall in December 2013 and initially 11 caused reduced range of motion. 12 x-ray 13 degenerative change but no fracture. 14 noted, when Dr. Sargeant examined Plaintiff on August 23, 2014, 15 he found that Plaintiff’s shoulder pain “comes and goes.” 16 30; 17 evaluation on May 27, 2014 18 test and Neer sign,” and Plaintiff “did not demonstrate weakness 19 of the rotator cuff strength.” 20 testified at the hearing on August 26, 2016 that the problem with 21 her hips began “[a]bout a year ago, two years ago,” and was “just 22 gradually getting worse.” 23 out in the decision, Plaintiff exhibited normal range of motion 24 in the hips when Dr. Sargeant examined her in August 2014, and 25 she had normal gait and station upon examination in January 2016. 26 (AR 29-30; see AR 361, 505). 27 any 28 caused functional limitations. of see the AR record left 361). evidence shoulder The ALJ (AR 29-30; see AR 286, 358). on February also 6, 2014 showed (AR 312). remarked that An mild As the ALJ an (AR orthopedic “revealed negative Hawkins-Kennedy (AR 31; see AR 501). (AR 53). Plaintiff However, as the ALJ pointed Plaintiff also fails to point to showing that 10 any hand-related impairment To the contrary, Dr. Sargeant 1 found that Plaintiff demonstrated normal joint flexion, “very 2 good dexterity,” and good grip strength in both hands, concluding 3 that 4 feeling, and reaching.” Plaintiff had “no limitations for fingering, handling, (AR 361-62). 5 6 The ALJ’s finding that Plaintiff did not have other severe 7 impairments and did not warrant additional functional limitations 8 is supported by substantial evidence. 9 failed to establish any material error in the ALJ’s failure to 10 Accordingly, Plaintiff has further address Dr. Ochioba’s treatment notes. 11 3. 12 13 14 15 16 17 18 19 20 21 22 Dr. Sargeant Plaintiff contends that the ALJ erred by failing to adopt Dr. Sargeant’s finding that Plaintiff required a walker for long distances. (Joint Stip. at 5). Dr. Sargeant provided consultative examination of Plaintiff on August 23, 2014. 358-62). a (AR He opined, among other things, that Plaintiff can stand and walk for two hours and sit for six hours in an eight hour workday, but she “needs a cane for short distances and a walker for long distances.” (AR 362). Dr. Sargeant also found that Plaintiff can occasionally climb, balance, kneel, crawl, walk on uneven terrain, climb ladders, and work at heights. (AR 362). 23 24 25 26 27 The ALJ gave “some weight” to Dr. Sargeant’s opinion, viewing it “favorably” to the extent that it was consistent with the RFC. (AR 31). value diminished was However, the ALJ found that the opinion’s because Dr. 28 11 Sargeant “did not have the 1 benefit of reviewing the full breadth of the medical record,” 2 such as August 2008 examinations showing “normal extremities, 3 with full range of motion.” 4 also noted that Plaintiff “even admitted at the hearing that she 5 uses the cane two to three times per week.”7 6 Plaintiff also stated that she does not use a walker (AR 46), and 7 that she can stand for about ten minutes at a time and sit for 8 twenty or thirty minutes before “it starts to get uncomfortable.” 9 (AR 55). (AR 31 (citing AR 283)). The ALJ (AR 31; see AR 46). 10 11 The ALJ essentially adopted the standing and sitting 12 restrictions 13 testimony in his RFC determination, finding that Plaintiff “can 14 stand and walk for two hours out of an eight-hour workday at 10- 15 minutes at a time” and “can sit for six hours out of an eight- 16 hour workday at 30 minutes at a time” and that Plaintiff “can 17 occasionally use a cane to walk.” 18 did not specifically adopt Dr. Sargeant’s opinion that Plaintiff 19 needs to use a walker “for long distances,” the RFC makes such a 20 restriction unnecessary by limiting Plaintiff to only ten-minute 21 intervals of standing and walking. 22 RFC finding essentially accommodates Dr. Sargeant’s opinion, and 23 the ALJ provided sufficient basis to reject it to the limited 24 extent that he did so, there is no error. from Dr. Sargeant’s opinion (AR 28). and Plaintiff’s Although the ALJ (AR 28, 362). Because the 25 26 27 28 7 Specifically, Plaintiff testified that she had been using the cane for “[a]bout a year,” and used it “just like two or three times a week, four times a week.” (AR 46). 12 4. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Dr. Han Plaintiff claims that the ALJ erred by failing to credit the opinion of state agency consultant, Dr. Han, which limited Plaintiff to only occasional overhead reaching with the upper left extremity. (Joint Stip. at 6-7; see AR 100). Plaintiff points out that she had been receiving treatment for shoulder pain from Dr. Obiocha and the Arrowhead Regional Medical Center. (Joint Stip. at 7). Han’s opinion However, the ALJ explicitly recognized Dr. regarding overhead reaching and appropriately rejected this restriction based on its inconsistency with the objective medical evidence in the record. pointed out that Hawkins-Kennedy “an test orthopedic and Neer Specifically, the ALJ evaluation sign,” and revealed Plaintiff demonstrate weakness of the rotator cuff strength.” AR 501). negative “did not (AR 31; see Therefore, the ALJ did not err regarding Dr. Han’s assessment. 17 5. 18 Dr. Stanciell and Dr. Johnson 19 Plaintiff contends that the ALJ erred in finding no severe 20 mental limitations, and particularly by giving great weight to 21 consultative examiner Dr. Stanciell’s opinion and little weight 22 to the opinion of state agency psychological consultant, Dr. 23 Johnson. (Joint Stip. at 5-6). 24 25 Dr. Stanciell provided a psychiatric evaluation of Plaintiff 26 on August 21, 2014. (AR 351-55). He observed that Plaintiff had 27 a depressed mood and affect, but otherwise was engaged, alert, 28 13 1 well oriented, and cooperative, with good eye contact and normal 2 speech and thought process. 3 Plaintiff had no difficulty interacting with the doctor or the 4 staff during her visit. 5 to 6 “world” forward and backward, and “to register 3 out of 3 items 7 at 0 minutes and 3 out of 3 items at 5 minutes.” 8 Plaintiff also had common sense understandings and “responded 9 appropriately to imaginary situations requiring social judgments “do serial sevens (AR 353). (AR 354). and He also observed that Plaintiff, moreover, was able serial threes,” to spell the word (AR 353). 10 and knowledge of the norms.” 11 Plaintiff has no difficulties maintaining social functioning and 12 “mild 13 temperament, and in concentration, persistence, and pace. 14 354). 15 performing simple and repetitive tasks, and otherwise would have 16 only mild mental limitations. 17 weight 18 Stanciell 19 opinion 20 examination.” difficulties” in (AR 353). Dr. Stanciell found that maintaining composure and even (AR He opined that Plaintiff would have no limitations in to Dr. was on “a Stanciell’s a (AR 354). opinion, board-certified face-to-face the In assigning great ALJ noted psychiatrist interview and a who that Dr. based his supportive mental (AR 26-27). 21 22 Dr. Johnson provided a consultative review of Plaintiff’s 23 records on September 11, 2014. 24 that Plaintiff has moderate limitations in her ability to perform 25 detailed 26 maintain punctuality and regular attendance, sustain an ordinary 27 routine without supervision, and respond to changes in the work 28 setting, among other abilities. instructions, maintain 14 (AR 97-98, 101-03). attention (AR 101-02). and He found concentration, Dr. Johnson based 1 these assessments on the fact that Plaintiff was depressed and 2 withdrawn. 3 Johnson’s opinion because it “overstate[d]” Plaintiff’s mental 4 limitations and conflicted with the medical record, which “showed 5 generally appropriate behavior.” 6 noted, 7 judgment and an adequate fund of knowledge about current events, 8 and she follows directions well. (AR 101-02). for example, The ALJ gave little weight to Dr. that (AR 27; see AR 45-47). Plaintiff has normal The ALJ insight and (AR 27; see AR 283, 505). 9 10 Plaintiff contends that the ALJ erred by giving less weight 11 to Dr. Johnson’s opinion than Dr. Stanciell because Dr. Johnson’s 12 opinion 13 suggesting that Dr. Johnson “may have had more evidence before 14 him” than Dr. Stanciell. (Joint Stip. at 6). Plaintiff asserts 15 that “[w]e have no way of gauging what evidence the consultative 16 examiner 17 reviewed “all” medical records.” 18 mere conjecture, however, Plaintiff offers no basis to find that 19 Dr. Stanciell reviewed less evidence when examining Plaintiff on 20 August 21, 2014, than the record reviewed by Dr. Johnson when 21 providing 22 September 11, 2014. 23 does 24 between these two dates and Plaintiff did not receive any regular 25 mental 26 primary 27 contentions, there 28 support ALJ’s “was not more had” consistent because his the medical “simply evidence,” refers to (Id.; see AR 351). opinion a few that any treatment (AR is pertinent weeks other than 49). later, to 15 Xanax evidence give developed prescribed in greater the on The record was Notwithstanding substantial decision evidence having Aside from (See AR 97-98, 101-03, 351-55). physician. the Stanciell non-examining reflect health Dr. with by her Plaintiff’s record weight to to Dr. 1 Stanciell’s examining opinion over Dr. Johnson’s non-examining 2 opinion. 3 4 Plaintiff also contends that the ALJ should have found that 5 Plaintiff had a severe mental impairment in part because Dr. 6 Stanciell assigned Plaintiff a GAF of 58, diagnosed her with 7 depression, and recommended treatment.8 8 AR 9 findings of, at most, only mild mental limitations supports the 353-54). Regardless of these (Joint Stip. at 5; see factors, Dr. Stanciell’s 10 ALJ’s 11 limitations in mental functioning and does not require greater 12 limitations in her RFC. 13 error in the ALJ’s determination to exclude mental restrictions 14 from the RFC determination that Plaintiff does not have severe Plaintiff has failed to establish any 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 As the ALJ explained, “a GAF score is a clinician’s rating of an individual’s overall psychological, social, and occupational functioning,” and a score between 51 and 60 “indicates moderate symptoms or moderate difficulty in social, occupational, or school functioning.” (AR 27 & n.1). The ALJ explained that he considered the GAF scores but gave them little weight because they represent just “a snapshot of an individual’s level of functioning at a particular point in time.” (AR 27). 16 1 B. The ALJ Did Not Err in Assessing Plaintiff’s Subjective Complaints 2 Plaintiff contends that the ALJ failed to provide clear and 3 4 convincing reasons to discount her allegations. (Joint Stip. at 5 15-16). 6 do 7 driving, and bike riding.” 8 “can’t bend over to pick things up,” and needs assistance getting 9 dressed, cooking, cleaning, and “getting around.” Plaintiff reported, among other things, that she “can’t much of noted, anything,” moreover, including “walking, (AR 194). she hiking, She also reported that she She 11 squatting, 12 kneeling, 13 concentration, understanding, and following instructions. 14 211). 15 ten minutes at a time, sit for twenty to thirty minutes, and lift 16 five or ten pounds. standing, has (AR 193, 195). 10 bending, that shopping, limitations reaching, stair-climbing, memory, in lifting, walking, sitting, completing tasks, (AR In addition, she testified that she can stand or walk for (AR 55-56). 17 18 When assessing a claimant’s credibility regarding subjective 19 pain or intensity of symptoms, the ALJ must engage in a two-step 20 analysis. 21 2017). First, the 22 evidence of impairment 23 symptoms alleged. 24 Cir. 2014). 25 show that her impairment could reasonably be expected to cause 26 the severity of the symptom she has alleged; she need only show 27 that it could reasonably have caused some degree of the symptom.” 28 Id. Trevizo v. Berryhill, 874 F.3d 664, 678 (9th Cir. an ALJ must determine that could if there reasonably is medical produce the Garrison v. Colvin, 759 F.3d 995, 1014 (9th “In this analysis, the claimant is not required to (emphasis in original) (citation 17 omitted). “Nor must a 1 claimant 2 fatigue 3 omitted). produce itself, objective or the medical severity evidence of thereof.” the Id. pain or (citation 4 5 If the claimant satisfies this first step, and there is no 6 evidence of malingering, the ALJ must provide specific, clear and 7 convincing reasons for rejecting the claimant’s testimony about 8 the 9 omitted); see also Smolen, 80 F.3d at 1284 (“[T]he ALJ may reject 10 the claimant’s testimony regarding the severity of her symptoms 11 only if he makes specific findings stating clear and convincing 12 reasons for doing so.”); Robbins v. Soc. Sec. Admin., 466 F.3d 13 880, 883 (9th Cir. 2006) (“[U]nless an ALJ makes a finding of 14 malingering based on affirmative evidence thereof, he or she may 15 only find an applicant not credible by making specific findings 16 as to credibility and stating clear and convincing reasons for 17 each.”). 18 convincing 19 Security cases.” symptom severity. Trevizo, 874 F.3d at 678 (citation “This is not an easy requirement to meet: The clear and standard is the most demanding required in Social Garrison, 759 F.3d at 1015 (citation omitted). 20 21 22 In discrediting the claimant’s subjective symptom testimony, the ALJ may consider the following: 23 24 25 26 (1) ordinary techniques of credibility evaluation, such as the claimant’s reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant’s daily activities. 27 28 18 1 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citation 2 omitted). 3 conduct, or internal contradictions in the claimant’s testimony, 4 also may be relevant. 5 (9th Cir. 2014); Light v. Soc. Sec. Admin., 119 F.3d 789, 792 6 (9th 7 observations 8 among other matters, the functional restrictions caused by the 9 claimant’s symptoms. Inconsistencies between a claimant’s testimony and Cir. 1997). of Burrell v. Colvin, 775 F.3d 1133, 1137 In addition, treating and the ALJ examining may consider physicians the regarding, Smolen, 80 F.3d at 1284; accord Burrell, 10 775 F.3d at 1137. 11 subjective testimony based “solely” on its inconsistencies with 12 the objective medical evidence presented. 13 Sec. 14 omitted). Admin., 554 However, it is improper for an ALJ to reject F.3d 1219, 1227 Bray v. Comm’r of Soc. (9th Cir. 2009) (citation 15 16 Further, the ALJ must make a credibility determination with 17 findings that are “sufficiently specific to permit the court to 18 conclude that the ALJ did not arbitrarily discredit claimant’s 19 testimony.” 20 2008) (citation omitted); see Brown-Hunter v. Colvin, 806 F.3d 21 487, 493 (9th Cir. 2015) (“A finding that a claimant’s testimony 22 is 23 reviewing 24 claimant’s 25 arbitrarily discredit a claimant’s testimony regarding pain.”) 26 (citation 27 claimant’s testimony may not be the only reasonable one, if it is 28 supported by substantial evidence, “it is not [the court’s] role not Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. credible court must to testimony omitted). be sufficiently conclude on the adjudicator permissible Although 19 an specific grounds ALJ’s to allow rejected and did interpretation a the not of a 1 to second-guess it.” 2 (9th Cir. 2001). Rollins v. Massanari, 261 F.3d 853, 857 3 4 Here, the ALJ found that Plaintiff’s “medically determinable 5 impairments could reasonably be expected to cause the alleged 6 symptoms,” but her 7 persistence and limiting 8 entirely consistent with the medical evidence and other evidence 9 in the record for the reasons explained in th[e] decision.” “statements effects concerning of these the intensity, symptoms are 10 32). 11 mild” 12 including the part-time work she performs as a caregiver. 13 32). 14 reasons to support the ALJ’s credibility finding. not (AR To support this finding, the ALJ pointed to the “generally diagnostic evidence and Plaintiff’s daily activities, (AR These findings constitute specific, clear, and convincing 15 16 Substantial evidence supports the ALJ’s finding that the 17 severity of Plaintiff’s allegations is not fully supported by the 18 objective medical evidence. 19 the objective medical evidence cannot be the sole ground for 20 rejecting a claimant’s subjective testimony, it is a factor that 21 the ALJ may consider when evaluating credibility. 22 at 1227; Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005); 23 Rollins, 24 medical evidence is a useful indicator to help make reasonable 25 conclusions 26 including the effects those symptoms may have on the ability to 27 perform work-related activities”); Carmickle, 533 F.3d at 1161 28 (“Contradiction with the medical record is a sufficient basis for 261 F.3d about at the 857; (AR 32). see intensity 20 SSR and While inconsistencies with 16-3p, at Bray, 554 F.3d *5 persistence (“objective of symptoms, 1 rejecting the claimant’s subjective testimony.”). 2 correctly 3 generally mild. 4 studies of the lumbar spine from 2013 and 2014, for example, 5 revealed 6 “degenerative disc disease at L5-S1,” but “otherwise unremarkable 7 lumbosacral spine.” 8 and 9 “unremarkable alignment” and “mild” degenerative changes. 10 noted that results of diagnostic studies (See AR 287, 302, 317-18, 330, 347). “mild 2014 the Here, the ALJ intervertebral imaging disk (AR 287, 330). studies of space were Imaging narrowing” and Similarly, Plaintiff’s 2013 the left shoulder showed (AR 288, 317-18, 347). 11 12 Substantial evidence also supports the ALJ’s finding that 13 Plaintiff’s 14 severity of her allegations. 15 perform 16 discount Plaintiff’s credibility. 17 (claimant’s allegations of disability properly discredited where 18 claimant was able to care for her own personal needs, cook, 19 clean, shop, interact with her boyfriend, and manage finances). 20 Plaintiff contends that her work as a caregiver9 was an improper 21 basis to discredit her testimony because “her job duties were daily various activities everyday and caregiver (AR 32). activities is work belied the Plaintiff’s ability to a legitimate basis to See Burch, 400 F.3d at 680-81 22 23 24 25 26 27 28 9 Plaintiff testified that she works as a caregiver for 134 hours a month, and the gentleman she cares for is a friend who lives in her house. (AR 42, 48, 50). When asked if she believed she could do this work full time, Plaintiff initially replied that she could not because “[t]hey won’t allow it.” (AR 49). Only when her counsel pressed further by asking whether she had physical limitations that would prevent her from doing the work full time did she follow up by explaining: “It’s just hard to bend over, pick up, get comfortable, not steady on my feet, and just in pain a lot, just tired.” (AR 49). 21 1 basically making sure her client takes his medication and she 2 watches over him.” 3 to this statement, however, Plaintiff testified that she also 4 drives the client to the doctor, cooks his meals, and washes his 5 clothes. 6 bathes him. 7 she loads the dishwasher and does “light cleaning.” 8 She also testified that she drove to the hearing, but this was 9 the farthest she had driven, and usually her driving involves (Joint Stip. at 16 (citing AR 42)). (AR 47-48). (AR 267). Contrary Moreover, she reported that she feeds and Aside from this work, she reported that (AR 208). 10 just going “to the grocery store and back home.” 11 shops at the grocery store once a month. 12 Plaintiff’s activities and caregiver tasks may not necessarily 13 show 14 inconsistent with the level of impairment that Plaintiff alleged. 15 See Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (“Even 16 where 17 functioning, they may be grounds for discrediting the claimant’s 18 testimony to the extent that they contradict claims of a totally 19 debilitating impairment.”). that she was unimpaired, [claimant’s] the activities ALJ (AR 50). (AR 209). reasonably suggest Although found some She them difficulty 20 21 Accordingly, the ALJ properly discounted 22 credibility 23 supported by substantial evidence in the record. by giving specific, 24 25 26 // // // 27 28 22 legitimate Plaintiff’s reasons that are 1 C. The ALJ Did Not Err in Concluding, at Step Four, that Plaintiff Is Not Disabled 2 Plaintiff claims that the ALJ erred in finding Plaintiff not 3 4 5 6 7 8 9 10 11 12 13 disabled, both in his step four finding and the alternative step five finding. ALJ 32-34, 57-59). “faulty” of performing (AR 32-33). her past In making this (AR “there was no (Joint Stip. at 24). discussion of vocational As support, Plaintiff quotes SSR 96-9p: Under the regulations, “sedentary work” represents a significantly restricted range of work. Individuals who are limited to no more than sedentary work by their medical impairments have very serious functional limitations. For the majority of individuals who are age 50 or older and who are limited to the full range of sedentary work by their medical impairments, the rules and guidelines in appendix 2 require a conclusion of “disabled.” 18 23 capable Plaintiff asserts that the VE’s testimony was because adjustment.” 17 22 was Plaintiff’s limitations would be able to perform this work. 16 21 Plaintiff At step four, the finding, the ALJ relied on the VE’s testimony that a person with 15 20 that relevant work as a legal secretary. 14 19 found (Joint Stip. at 23-25, 28-29). (Joint Stip. at 24 (quoting SSR 96-9p)). Plaintiff further claims that the ALJ erred at step four because the ALJ failed to include additional functional limitations to account Plaintiff’s shoulder impairment and mental impairment. for (Id. at 28). 24 25 26 27 28 Contrary to Plaintiff’s argument, there is no requirement for the ALJ to consider vocational adjustment at step four. The administrative ruling Plaintiff relies on, SSR 96-9p, applies only to step five of the sequential evaluation, where the ALJ, 23 1 after finding that a claimant cannot perform any past relevant 2 work, 3 adjustment to other work.” 4 The stated purpose of SSR 96-9p is “[t]o explain the Social 5 Security Administration’s policies regarding the impact of [an 6 RFC] assessment for less than a full range of sedentary work on 7 an individual’s ability to do other work.” 8 added). determines whether the claimant instead “can make an 20 C.F.R. § 404.1520(g), 416.920(g). SSR 96-9p (emphasis 9 10 Thus, the ALJ did not err by failing to consider vocational 11 adjustment at step four. 12 above, Plaintiff has failed to demonstrate any error in the ALJ’s 13 RFC finding, which mirrors the hypothetical limitations presented 14 to the VE at step four. 15 properly relied on the VE’s testimony to conclude, at step four, 16 that Plaintiff can perform her past relevant work as a legal 17 secretary, and is therefore not disabled. 18 the ALJ properly found Plaintiff not disabled at step four, the 19 Court 20 ALJ’s alternative finding at step five. need not address Furthermore, for the reasons discussed (AR 28, 58). Plaintiff’s 21 22 23 // // // 24 25 26 27 28 24 Accordingly, the ALJ (AR 32-34). contentions Because regarding the 1 CONCLUSION 2 3 4 For the foregoing reasons, the decision of the Commissioner is AFFIRMED. 5 6 LET JUDGMENT BE ENTERED ACCORDINGLY. 7 8 Dated: November 30, 2018 9 10 ______________/s/_____________ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25
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