Jessica Olive v. Nancy A. Berryhill, No. 8:2017cv01765 - Document 21 (C.D. Cal. 2018)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner. The Clerk of the Court shall serve copies of this Order and the Judgment on counsel for both parties. (See document for further details). (mr)
Download PDF
<![CDATA[
Jessica Olive 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 JESSICA OLIVE, Plaintiff, 12 15 MEMORANDUM DECISION AND ORDER v. 13 14 CASE NO. SACV 17-1765 SS NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 16 17 18 I. 19 INTRODUCTION 20 21 Jessica Olive (“Plaintiff”) brings this action seeking to 22 overturn the decision of the Acting Commissioner of Social Security 23 (the 24 Disability Insurance Benefits. 25 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United 26 States Magistrate Judge. 27 stated below, the Court AFFIRMS the Commissioner’s decision. “Commissioner” or “Agency”) denying her application for The parties consented, pursuant to (Dkt. Nos. 11-13). For the reasons 28 Dockets.Justia.com 1 II. 2 PROCEDURAL HISTORY 3 4 On June 17, 2014, Plaintiff filed an application for 5 Disability Insurance Benefits, pursuant to Title II of the Social 6 Security Act (“Act”), alleging a disability onset date of September 7 9, 2013. 8 application 9 Plaintiff requested a hearing before an Administrative Law Judge (AR 85, 141-44). initially and The Commissioner denied Plaintiff’s on reconsideration. (AR 76-95). 10 (“ALJ”), which took place on September 29, 2015.1 11 06). 12 finding that Plaintiff was not disabled because there are jobs in 13 the national economy that she can perform. 14 17, 15 review. (AR 30-75, 105- The ALJ issued an adverse decision on February 22, 2016, 2017, the Appeals (AR 1-6). Council denied (AR 17-25). Plaintiff’s On August request for This action followed on October 10, 2017. 16 17 III. 18 FACTUAL BACKGROUND 19 20 Plaintiff was born on February 27, 1984. (AR 141). She was 21 thirty-one (31) years old when she appeared before the ALJ on July 22 26, 2016. 23 an associate’s degree. 24 parents. (AR 39). Plaintiff is a high-school graduate and has (AR 40). (AR 61, 169, 183). She is single and lives with her Plaintiff last worked in September 25 26 1 27 28 Plaintiff was unrepresented at the hearing. The ALJ appraised Plaintiff of the right to be represented by an attorney, but she elected to proceed without representation. (AR 32-36). 2 1 2013 as a receptionist. (AR 65, 161). She alleges disability due 2 to anxiety, panic attacks, and severe depression. (AR 160). 3 4 A. Plaintiff’s Statements and Testimony 5 6 On 7 Report. 8 to severe panic attacks that cause extreme dizziness, shaking, 9 nausea, diarrhea, inability to focus, anxiety, paranoia, and sleep June 28, 2014, (AR 169-77). Plaintiff submitted an Adult Function She asserted that she is unable to work due 10 disturbances. 11 mental impairments affect her vision and her ability to memorize 12 and concentrate. 13 write, listen to music, and go outside. 14 problems with personal care, including dressing, bathing, taking 15 her medications, and feeding herself. 16 able to prepare meals, do house and yard work, and care for her 17 dog. 18 (AR 172). 19 reading, writing, watching television, blogging, photography and 20 playing baseball. 21 and family, with no problems getting along with others. 22 74). (AR 169-70). (AR 174). (AR 170-71). Plaintiff also asserted that her Plaintiff is able to exercise, read, (AR 170). (AR 170-71). She has no Plaintiff is She occasionally drives and shops in stores. Plaintiff’s hobbies and interests include occasional (AR 173). She regularly socializes with friends (AR 173- 23 24 In an August 2014 Disability Report, Plaintiff asserted that 25 her panic attacks prevent her from doing everyday activities. 26 223). 27 breathe or think, would get dizzy and nauseous, and would have 28 severe diarrhea. (AR The stresses of work created issues where she could not (AR 223). She has severe problems talking on 3 1 the phone and going outside and interacting with people because of 2 her panic attacks and anxiety. (AR 223). 3 4 At Plaintiff’s hearing, she testified that she is unable to 5 work because of symptoms related to anxiety, depression, and PTSD. 6 (AR 57). 7 work exacerbate her panic attacks. (AR 57). She suffers from 8 significant diarrhea, shaking, 9 inability to think. Social functions, being on the phone, and looking for anxiety, which (AR 57). causes and an She has made some progress with her 10 recent therapist. (AR 53-55). 11 helped her depression significantly, they affect her memory and 12 cause headaches. 13 to help out around the house when her anxiety is under control. 14 (AR 61-62). (AR 56-58). While Prozac and Zyprexa have Plaintiff testified that she tries 15 16 B. Treatment History 17 18 Plaintiff sought treatment with Kaiser in Salem, Oregon, since 19 July 2013. (AR 264). On July 11, 2013, Plaintiff complained of 20 increase anxiety associated with job stressors. 21 reported trying to find a new job. 22 overly tearful, difficulty breathing, and nausea. 23 was diagnosed with an adjustment disorder with mixed anxiety and 24 depression and prescribed Prozac. 25 Plaintiff reported worsening anxiety and stress, with eye twitching 26 and intermittent chest tightness. 27 Plaintiff reported that her depression was improving, but anxiety 28 4 (AR 284). (AR 264). She reported being (AR 264-65). (AR 266). She (AR 264). She On July 18, On September 19, 1 was still present. (AR 267). She was diagnosed with panic disorder 2 without agoraphobia and major depressive disorder. (AR 263). 3 4 On September 10, 2013, Barbara Hoover, D.O., Plaintiff’s 5 primary care doctor, diagnosed generalized anxiety disorder and 6 prescribed Ativan to relieve Plaintiff’s panic symptoms at work. 7 (AR 277). 8 improving but anxiety is still present. 9 being on short-term disability due to her panic attacks. On September 19, Plaintiff reported her depression as Hoover recommended that she (AR 277). 10 Dr. continue off 11 depression and anxiety stabilized. 12 Plaintiff reported a decrease in panic attacks. She reported work (AR 277). (AR 277). until her On October 3, (AR 276). 13 14 On September 12, 2013, Plaintiff began treating with New 15 Perspectives Center for individual psychotherapy. 16 reported high anxiety, panic attacks, and depression. 17 Recurrent panic attacks cause extreme distress and have impaired 18 her ability to work. 19 suicidal thoughts, she denied any plans or intent. 20 anxiety 21 disturbance, exaggerated startle response, depressed mood, weight 22 loss/gain, anhedonia, severe psychomotor agitation, feelings of 23 worthlessness, low self-esteem, poor appetite, muscle tension, 24 irritability, fatigue, panic attacks, excessive worry, difficulty 25 concentrating, and difficulty sustaining attention. 26 Plaintiff was diagnosed with panic disorder without agoraphobia 27 and major depressive disorder and assigned a Global Assessment of and (AR 298). depression (AR 297). She (AR 298). Although Plaintiff reported recent symptoms 28 5 include (AR 298). nightmares, Her sleep (AR 300-01). 1 Functioning (“GAF”) score of 45.2 2 with weekly individualized psychotherapy sessions during September 3 and October 2013. (AR 313-21). On September 26, Plaintiff reported 4 actively applying for jobs working in customer service. 5 On October 30, Plaintiff reported dealing with anxiety better. 6 313). (AR 297). Plaintiff continued (AR 319). (AR 7 8 9 In October 2013, Plaintiff began treating with Sarah Dubal, a psychiatric mental health nurse practitioner. (AR 270-72). 10 Plaintiff complained of severe depression and some anxiety. 11 270). 12 Dubal diagnosed adjustment disorder with disturbance of mood and 13 anxiety and transitioned Plaintiff from Prozac to Zoloft. 14 71). 15 with Zoloft, except panic attacks are only about every three days. 16 (AR 270). A mental status examination was unremarkable. (AR (AR 270). (AR 270- Three weeks later, Plaintiff complained that she feels worse Dubal suggested Plaintiff try 5-HTP as an alternative 17 18 19 20 21 22 23 24 25 26 27 28 “A GAF score is a rough estimate of an individual’s psychological, social, and occupational functioning used to reflect the individual’s need for treatment.” Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir. 1998). The GAF includes a scale ranging from 0–100, and indicates a “clinician’s judgment of the individual’s overall level of functioning.” American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. text rev. 2000) (hereinafter DSM–IV). According to DSM–IV, a GAF score between 41 and 50 describes “serious symptoms” or “any serious impairment in social, occupational, or school functioning.” Id. 34. “Although GAF scores, standing alone, do not control determinations of whether a person’s mental impairments rise to the level of a disability (or interact with physical impairments to create a disability), they may be a useful measurement.” Garrison v. Colvin, 759 F.3d 995, 1003 n.4 (9th Cir. 2014). 2 6 1 for her.3 2 5-HTP than either Prozac or Zoloft, although the 5-HTP was helping 3 more with depression than anxiety. 4 examination was unremarkable. On November 11, Plaintiff reported feeling better with (AR 269). A mental status (AR 269). 5 6 In January 2014, Plaintiff began treating with Clarissa J. 7 Shepherd, a licensed professional counselor. (AR 328). Plaintiff 8 reported panic attacks, including unfocused vision, loss of breath, 9 shaking, nausea, uncontrolled crying, and diarrhea. (AR 329). A 10 mental status examination was unremarkable. Plaintiff was fully 11 oriented speech, 12 concentration, memory, mood, thought content, insight, judgment 13 and intellectual functioning were all normal. (AR 329-30). 14 were no signs of hallucinations or delusions. (AR 330). 15 diagnosed 16 disorder and assigned a GAF score of 50. 17 continued with individualized, weekly therapy sessions from January 18 to May 2014. 19 feeling better and being able to engage in a variety of activities, 20 including walking her dog on a daily basis and enjoying a variety 21 of social interactions. 22 treatment, Plaintiff reported that her symptoms of anxiety and 23 depression decreased as she followed through with her treatment and her major affect, depressive (AR 333-41). appearance, disorder and attention, generalized (AR 332). There Shepherd anxiety Plaintiff In February 2014, Plaintiff reported (AR 337-38). Over the course of her 24 25 26 27 28 5-HTP is an herbal remedy that “increases the synthesis of serotonin [and] is used for several diseases where serotonin is believed to play an important role including depression, insomnia, obesity, and many other conditions.” <https://www.webmd.com/ vitamins/ai/ingredientmono-794/5-htp> (last visited August 3, 2018). 3 7 1 plan. (AR 326). On July 18, 2014, Shepherd opined that Plaintiff 2 is unable to perform required workplace duties, such as sustaining 3 concentration or being able to socially interact and adapt to 4 workplace situations and environment. (AR 327). 5 6 On July 17, 2014, Sohini P. Parikh, M.D., reviewed the medical 7 record and performed a complete psychiatric evaluation on behalf 8 of the Commissioner. 9 and reasonably groomed with a normal posture and gait. chief (AR 343-50). complaints 11 problems.” 12 frustrated due to the situation at her workplace beginning in July 13 2013. 14 hard time at work.” 15 increased heart rate, sweatiness, and dizzy spells. 16 crowds “bother her a lot.” 17 any suicidal or homicidal ideations. 18 to drive, manage funds, and pay bills. 19 cook, shop, and do housekeeping. 20 herself and her dog. 21 with her family, and has no problems with her neighbors. (AR 346). Dr. Parikh conducted a mental status examination. (AR 346- (AR 344). She reported anxiety, feeling and “medical Her 343). depression, (AR 343). 10 (AR were Plaintiff was casually dressed depressed and Plaintiff claimed she was “picked on and given a (AR 344). She reported anxiety attacks with (AR 344). (AR 346). (AR 344). Big She denied any psychosis or (AR 344). Plaintiff is able (AR 346). (AR 346). She is able to Plaintiff cares for She has close friends, gets along 22 23 24 48). Plaintiff was alert, attentive, cooperative, and followed 25 simple oral and written instructions. 26 problems were noted. 27 she was fully oriented, with logical form of thought, and normal 28 thought content. (AR 346). (AR 347). (AR 346). No cognitive Plaintiff’s speech was normal, Plaintiff’s mood was depressed and 8 1 anxious and her affect was “brighter.” 2 feelings 3 worthlessness. 4 phobias, 5 ideations. 6 insight, 7 unremarkable. of or hopelessness, (AR 347). any memory, helplessness, She denied any anhedonia, or She denied hallucinations, delusions, preoccupations (AR 347). (AR 347). with suicidal or homicidal Plaintiff’s abstract thinking, judgment, and intellectual functioning were all (AR 347-48). 8 9 Dr. Parikh diagnosed anxiety disorder and depressive disorder 10 and assigned a GAF score of 66 to 71.4 11 Plaintiff might have a mild impairment in the ability to reason 12 and to make social, occupational, and personal adjustments. 13 349). 14 mental restrictions in daily activities; mild mental difficulties 15 in 16 concentration, persistence, or pace; mild episodes of emotional 17 deterioration 18 understanding, carrying out, and remembering simple instructions; 19 mild impairment in understanding, carrying out, and remembering 20 complex instructions; mild impairment in responding to coworkers, (AR 349). She opined that (AR Specifically, Dr. Parikh concluded that Plaintiff has no maintaining in social functioning; work-like no situations; impairments no impairment with in 21 22 23 24 25 26 27 28 4 According to DSM–IV, a GAF score between 61 and 70 indicates some mild symptoms (e.g., depressed mood and mild insomnia or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within household), but generally functioning well, has some meaningful interpersonal relationships. DSM-IV 34. A GAF score between 71 and 80 indicates that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). Id. 9 1 supervisors, and the general public; mild impairment in responding 2 appropriately to usual work situations; and mild impairment in 3 dealing with changes in a routine work setting. (AR 349-50). 4 5 In July 2014, Plaintiff moved to California to live with her 6 parents but did not begin treatment until January 2015. 7 356, 393). 8 Plaintiff complained of anxiety and depression. 9 reported symptoms 10 weight, insomnia, 11 reduced concentration 12 motivation, and conflict with friends. 13 psychosis and homicidal or suicidal ideations. 14 status examination was largely unremarkable. 15 her mood was depressed and anxious, her appearance, behavior, 16 affect, motor activity, speech, orientation, alertness, memory, 17 insight, judgment, thought form, and thought content were all 18 normal. 19 and panic disorder and assigned a GAF score of 51 to 60.5 20 360). 21 treatment. 22 depressed mood and a tearful affect. 23 anxious and depressed mood, a mental status examination on February 24 20, 2015, was unremarkable. 25 26 27 28 (AR 326, At her initial intake at Kaiser in Anaheim, California, (AR 359). included tearfulness, irritability, and anhedonia, fatigue, memory, (AR 356). panic, fluctuating feeling lack Her worthless, of consistent (AR 357-58). She denied (AR 358). (AR 359). A mental Although Plaintiff was diagnosed with major depression (AR Her condition fluctuated with weekly therapy sessions and In February, Plaintiff presented with an anxious and (AR 372). (AR 395-96). 5 Other than an Nancy Lee Tram Dom, A GAF score between 51 and 60 indicates moderate symptoms (e.g., flat affect and circumlocutory speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers). DSM-IV 34. 10 1 M.D., diagnosed bipolar II disorder and panic disorder and assigned 2 a GAF score of 55. 3 recommended that Plaintiff continue individual psychotherapy. 4 397). 5 her significantly.” 6 and more able to use coping skills. 7 examination was unremarkable. (AR 397). Dr. Dom prescribed Seroquel and (AR On February 25, Plaintiff reported that Seroquel “has helped (AR 410). She feels happier, less anxious, (AR 410). A mental status (AR 410). 8 On March 19, 2015, Plaintiff was “feeling a little tired, but 9 10 pretty good.” (AR 434). 11 for her friend. 12 mood, a mental status examination was unremarkable. 13 Dom 14 effects and started Risperdal. (AR 423-24). On March 27, Plaintiff 15 reported side effects of headaches and dizziness. (AR 441). 16 also have 17 significantly since tapering off of Seroquel. 18 examination, Plaintiff’s mood was anxious and depressed and her 19 affect restricted and congruent. 20 bipolar I disorder and panic disorder and assigned a GAF score of 21 50 to 55. 22 Trileptal. 23 Trileptal was ineffective at controlling either her anxiety or her 24 depression. 25 Abilify. (AR 434). discontinued reported She reported working on wedding plans Seroquel that Other than an anxious and depressed due anxiety (AR 442). and concerns mood about symptoms (AR 442). cardiac Dr. side She worsened (AR 441). On Dr. Dom diagnosed Dr. Dom discontinued Risperdal and started (AR 442). (AR 452). to (AR 423). On April 22, Plaintiff reported that Dr. Dom discontinued Trileptal and started (AR 453). 26 27 28 On May 6, 2015, Plaintiff reported anxiety when looking online for jobs. (AR 464). On May 12, Plaintiff reported side effects 11 1 of occasional hand tremors and restlessness and no significant 2 improvements in mood with Abilify. 3 an effort to engage in social activities, including attending 4 church functions. 5 the side effects and started Latuda. 6 Plaintiff reported that she had stopped Latuda due to side effects 7 of 8 medications. 9 experiences almost daily panic attacks. palpitations (AR 471). and (AR (AR 471). Plaintiff is making Dr. Dom discontinued Abilify due to chest (AR 472). pressure 487). Her and depression was is On May 28, taking better (AR 487). herbal but she Plaintiff is 10 able to engage in social activities and will be going to Utah to 11 help 12 beginning in June. 13 a restricted and congruent affect, a mental status examination was 14 unremarkable. 15 has been more stable with herbal medications. 16 mood swings but is generally able to control them. (AR 509). Other 17 than an anxious mood and a restricted and congruent affect, a 18 mental status examination was normal. 19 bipolar I disorder and panic disorder, prescribed hydroxyzine, and 20 assigned a GAF score of 55. 21 reported that she had stopped hydroxyzine because it caused her to 22 be too sedated the next day. 23 has 24 Plaintiff was open to trying psychotropic medications. 25 Other than an anxious and depressed mood and a restricted and 26 congruent affect, a mental status examination was unremarkable. 27 (AR 533). her grandmother worsened move (AR 487, 502). (AR 488). and into she nursing home for three weeks Other than an anxious mood and On July 17, Plaintiff reported that she was (AR 509). (AR 510). (AR 510). Dr. Dom diagnosed On September 1, Plaintiff (AR 532). experiencing Because her depression daily Dr. Dom prescribed Zyprexa and Prozac. 28 12 She has panic attacks, (AR 532). (AR 534). 1 C. State Agency Consultants 2 3 On August 12, 2014, Pamela Hawkins, Ph.D, a state agency 4 consultant, evaluated the mental health records and concluded that 5 Plaintiff’s anxiety and depression are nonsevere. 6 opined that Plaintiff has a mild restriction of activities of daily 7 living, mild difficulties in maintaining social functioning, and 8 mild difficulties in maintaining concentration, persistence or 9 pace. (AR 81). (AR 81). She Dr. Hawkins concluded that Plaintiff’s mental 10 impairments do not significantly limit her ability to do basic work 11 activities. 12 concurred with Dr. Hawkins’s assessment. (AR 82). On September 3, 2014, R.E. Brooks, M.D., (AR 90-92). 13 14 IV. 15 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 16 17 To qualify for disability benefits, a claimant must 18 demonstrate a medically determinable physical or mental impairment 19 that prevents the claimant from engaging in substantial gainful 20 activity and that is expected to result in death or to last for a 21 continuous period of at least twelve months. 22 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). 23 The impairment must render the claimant incapable of performing 24 work 25 employment that exists in the national economy. 26 180 27 § 423(d)(2)(A)). previously F.3d 1094, performed 1098 or (9th any Cir. 28 13 other 1999) Reddick v. Chater, substantial gainful Tackett v. Apfel, (citing 42 U.S.C. 1 To decide if a claimant is entitled to benefits, an ALJ 2 conducts a five-step inquiry. 3 20 C.F.R. §§ 404.1520, 416.920. The steps are: 4 5 (1) Is the claimant presently engaged in substantial gainful 6 activity? 7 not, proceed to step two. 8 (2) 9 Is the If so, the claimant is found not disabled. claimant’s impairment severe? claimant is found not disabled. 10 If not, If the If so, proceed to step three. 11 (3) Does the claimant’s impairment meet or equal one of the 12 specific impairments described in 20 C.F.R. Part 404, 13 Subpart P, Appendix 1? 14 disabled. 15 (4) If so, the claimant is found If not, proceed to step four. Is the claimant capable of performing his past work? If 16 so, the claimant is found not disabled. 17 to step five. 18 (5) If not, proceed Is the claimant able to do any other work? 19 claimant is found disabled. 20 If not, the If so, the claimant is found not disabled. 21 22 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 23 262 F.3d 949, 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b)- 24 (g)(1), 416.920(b)-(g)(1). 25 The claimant has the burden of proof at steps one through four 26 27 and the Commissioner has the burden 28 Bustamante, 262 F.3d at 953-54. 14 of proof at step five. Additionally, the ALJ has an 1 affirmative duty to assist the claimant in developing the record 2 at every step of the inquiry. 3 claimant meets his or her burden of establishing an inability to 4 perform past work, the Commissioner must show that the claimant 5 can perform some other work that exists in “significant numbers” 6 in 7 residual functional capacity (“RFC”), age, education, and work 8 experience. 9 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). the national economy, Id. at 954. taking into If, at step four, the account the claimant’s Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at The Commissioner 10 may do so by the testimony of a VE or by reference to the Medical- 11 Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, 12 Appendix 2 (commonly known as “the grids”). 13 240 F.3d 1157, 1162 (9th Cir. 2001). 14 exertional (strength-related) and non-exertional limitations, the 15 Grids are inapplicable and the ALJ must take the testimony of a 16 vocational expert (“VE”). 17 Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 18 1988)). Osenbrock v. Apfel, When a claimant has both Moore v. Apfel, 216 F.3d 864, 869 (9th 19 20 V. 21 THE ALJ’S DECISION 22 23 The ALJ employed the five-step sequential evaluation process 24 and concluded that Plaintiff was not disabled within the meaning 25 of the Social Security Act. 26 found 27 activity since September 9, 2013, her alleged onset date. 28 At step two, the ALJ found that Plaintiff’s bipolar disorder, that Plaintiff has (AR 17-25). not engaged 15 in At step one, the ALJ substantial gainful (AR 19). 1 anxiety disorder, and panic disorder are severe impairments.6 2 19). 3 have an impairment or combination of impairments that meet or 4 medically equal the severity of any of the listings enumerated in 5 the regulations. (AR At step three, the ALJ determined that Plaintiff does not (AR 20-21). 6 7 The ALJ then assessed Plaintiff’s RFC and concluded that she 8 can perform a full range of work at all exertional levels but with 9 the following nonexertional limitations: “she is limited to work 10 involving simple[,] 11 involving no more than occasional contact with coworkers; and she 12 is limited to work involving no public contact.” 13 four, the ALJ found that Plaintiff is unable to perform any past 14 relevant work. (AR 23-24). 15 education, work experience, 16 determined at 17 significant numbers in the national economy that Plaintiff can 18 perform, 19 Accordingly, 20 disability, as defined by the Social Security Act, from September 21 9, 2013, through the date of the decision. step repetitive five including the ALJ found she is limited to (AR 21). work At step Based on Plaintiff’s RFC, age, and that packager tasks; the there and that VE’s are testimony, jobs that assembler. Plaintiff was (AR not the ALJ exist in 24-25). under a (AR 25). 22 23 24 25 26 27 28 The ALJ found that Plaintiff’s medically determinable impairments of asthma and severe obesity do not cause more than minimal limitations in Plaintiff’s ability to perform basic work activities and are, therefore, nonsevere. (AR 19). The ALJ also found that Plaintiff’s alleged fibromyalgia is not a medically determinable impairment. (AR 19-20). 6 16 1 VI. 2 STANDARD OF REVIEW 3 4 Under 42 U.S.C. § 405(g), a district court may review the 5 Commissioner’s decision to deny benefits. The court may set aside 6 the Commissioner’s decision when the ALJ’s findings are based on 7 legal error or are not supported by substantial evidence in the 8 record as a whole. 9 2014) (citing Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 10 1052 (9th Cir. 2006)); Auckland v. Massanari, 257 F.3d 1033, 1035 11 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); Smolen v. 12 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Fair v. Bowen, 13 885 F.2d 597, 601 (9th Cir. 1989)). Garrison v. Colvin, 759 F.3d 995 (9th Cir. 14 15 “Substantial evidence is more than a scintilla, but less than 16 a preponderance.” 17 Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). 18 evidence which a reasonable person might accept as adequate to 19 support a conclusion.” 20 Smolen, 21 evidence supports a finding, the court must “ ’consider the record 22 as a whole, weighing both evidence that supports and evidence that 23 detracts from the [Commissioner’s] conclusion.’ ” 24 F.3d at 1035 (citing Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 25 1993)). 26 or reversing that conclusion, the court may not substitute its 27 judgment for that of the Commissioner. 28 21 (citing Flaten v. Sec’y, 44 F.3d 1453, 1457 (9th Cir. 1995)). 80 F.3d Reddick, 157 F.3d at 720 (citing Jamerson v. at It is “relevant Id. (citing Jamerson, 112 F.3d at 1066; 1279). To determine whether substantial Auckland, 257 If the evidence can reasonably support either affirming 17 Reddick, 157 F.3d at 720- 1 VII. 2 DISCUSSION 3 4 Plaintiff asserted that she is unable to work due to severe 5 panic 6 diarrhea, inability to focus, anxiety, paranoia, and insomnia. (AR 7 57, 169-70, 223). 8 affect her vision, memory, and concentration. 9 testified that social functions, being on the phone, and looking 10 attacks that cause extreme dizziness, shaking, nausea, She also asserted that her mental impairments for work exacerbate her panic attacks. (AR 174). Plaintiff (AR 57). 11 12 When assessing a claimant’s credibility regarding subjective 13 pain or intensity of symptoms, the ALJ must engage in a two-step 14 analysis. 15 First, the ALJ must determine if there is medical evidence of an 16 impairment that could reasonably produce the symptoms alleged. 17 Garrison, 759 F.3d at 1014. 18 not required to show that her impairment could reasonably be 19 expected to cause the severity of the symptom she has alleged; she 20 need only show that it could reasonably have caused some degree of 21 the symptom.” 22 must a claimant produce objective medical evidence of the pain or 23 fatigue itself, or the severity thereof.” Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). “In this analysis, the claimant is Id. (emphasis in original) (citation omitted). “Nor Id. (citation omitted). 24 25 If the claimant satisfies this first step, and there is no 26 evidence of malingering, the ALJ must provide specific, clear and 27 convincing reasons for rejecting the claimant’s testimony about 28 the symptom severity. Trevizo, 871 F.3d at 678 (citation omitted); 18 1 see also Smolen, 80 F.3d at 1284 (“[T]he ALJ may reject the 2 claimant’s testimony regarding the severity of her symptoms only 3 if he makes specific findings stating clear and convincing reasons 4 for doing so.”); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 5 (9th Cir. 2006) (“[U]nless an ALJ makes a finding of malingering 6 based on affirmative evidence thereof, he or she may only find an 7 applicant 8 credibility and stating clear and convincing reasons for each.”). 9 “This is not an easy requirement to meet: The clear and convincing 10 standard is the most demanding required in Social Security cases.” 11 Garrison, 759 F.3d at 1015 (citation omitted). not credible by making specific findings as to 12 13 14 In discrediting the claimant’s subjective symptom testimony, the ALJ may consider the following: 15 16 (1) ordinary techniques of credibility evaluation, such 17 as 18 inconsistent 19 other testimony by the claimant that appears less than 20 candid; 21 failure to seek treatment or to follow a prescribed 22 course 23 activities. the claimant’s (2) of reputation statements concerning unexplained treatment; for or and (3) the lying, symptoms, inadequately the prior and explained claimant’s daily 24 25 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citation 26 omitted). 27 conduct, or internal contradictions in the claimant’s testimony, 28 also may be relevant. Inconsistencies between a claimant’s testimony and Burrell v. Colvin, 775 F.3d 1133, 1137 (9th 19 1 Cir. 2014); Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 2 1997). 3 treating and examining physicians regarding, among other matters, 4 the functional restrictions caused by the claimant’s symptoms. 5 Smolen, 80 F.3d at 1284; accord Burrell, 775 F.3d at 1137. However, 6 it is improper for an ALJ to reject subjective testimony based 7 “solely” on its inconsistencies with the objective medical evidence 8 presented. 9 (9th Cir. 2009) (citation omitted). In addition, the ALJ may consider the observations of Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 10 11 Further, the ALJ must make a credibility determination with 12 findings that are “sufficiently specific to permit the court to 13 conclude that the ALJ did not arbitrarily discredit claimant’s 14 testimony.” 15 2008) (citation omitted); see Brown-Hunter v. Colvin, 806 F.3d 487, 16 493 (9th Cir. 2015) (“A finding that a claimant’s testimony is not 17 credible must be sufficiently specific to allow a reviewing court 18 to conclude the adjudicator rejected the claimant’s testimony on 19 permissible grounds and did not arbitrarily discredit a claimant’s 20 testimony regarding pain.”) (citation omitted). 21 interpretation of a claimant’s testimony may not be the only 22 reasonable one, if it is supported by substantial evidence, “it is 23 not [the court’s] role to second-guess it.” 24 261 F.3d 853, 857 (9th Cir. 2001). Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. Although an ALJ’s Rollins v. Massanari, 25 26 The ALJ provided multiple, specific, clear, and convincing 27 reasons, supported by evidence in the record, to find Plaintiff’s 28 complaints of disabling anxiety, 20 panic attacks, and mental 1 symptomology only partially credible. (AR 30). These reasons are 2 sufficient to support the Commissioner’s decision.7 3 4 First, the ALJ found inconsistent. that 23). “[T]he statements internally 6 inconsistencies either in the claimant’s testimony or between the 7 testimony and the claimant’s conduct.” 8 1104, 1112 (9th Cir. 2012); see Burch v. Barnhart, 400 F.3d 676, 9 680 (9th Cir. 2005) (“ALJ may engage in ordinary techniques of may consider Molina v. Astrue, 674 F.3d 10 credibility 11 claimant’s 12 416.929(c)(4). 13 asserted that she cannot go outside and interact with people 14 because of her anxiety. 15 functions, being out in public, and looking for work exacerbate 16 her panic attacks. 17 therapist, however, that she is able to engage in a variety of 18 activities, including walking her dog on a daily basis, inviting 19 Plaintiff contends that “the ALJ simply sets forth the oft rejected boilerplate language numerous courts have rejected as boilerplate.” (Dkt. No. 19 at 7). Indeed, the Ninth Circuit has noted with disfavor that “ALJs with frequency include the boilerplate language discrediting the claimant’s symptom testimony because it is ‘inconsistent with’ the RFC in their disability determinations.” Laborin v. Berryhill, 867 F.3d 1151, 1154 (9th Cir. 2017) (citation omitted). However, “[b]ecause the claimant’s symptom testimony must be taken into account when the ALJ assesses the claimant’s RFC, it cannot be discredited because it is inconsistent with that RFC.” Id. Nevertheless, the error is harmless where the ALJ, as he did here (AR 21-23), also gives specific and valid reasons supported by substantial evidence for rejecting the claimant’s subjective statements. Laborin, 867 F.3d at 1154 (“inclusion of this flawed boilerplate language is not, by itself, reversible error and can be harmless”). 20 21 22 23 24 25 26 27 28 testimony”); such ALJ were 5 evaluation, (AR Plaintiff’s accord as . . . 20 C.F.R. inconsistencies in §§ 404.1529(c)(4), In an August 2014 Disability Report, Plaintiff (AR 223). Plaintiff testified that social (AR 57-58, 63). 7 21 She acknowledged to her 1 friends over to her home, and other social activities. (AR 23, 2 337-38). 3 attending church, and travelling to Utah to help her grandmother 4 transition into a nursing home, at trip which took three weeks. 5 (AR 23, 434, 471, 487, 502). 6 she is able to drive, shop and engage in social activities with 7 family, friends, and neighbors. 8 concluded that “these inconsistencies . . . diminish [Plaintiff’s] 9 credibility.” Plaintiff also acknowledged planning a friend’s wedding, Plaintiff reported to Dr. Parikh that (AR 346). The ALJ properly (AR 23). 10 11 Second, Plaintiff’s allegations were inconsistent with her “ALJs must be 12 acknowledged activities of daily living. 13 especially 14 inconsistent with testimony about pain, because impairments that 15 would unquestionably preclude work and all the pressures of a 16 workplace environment will often be consistent with doing more than 17 merely resting in bed all day.” 18 Nevertheless, an ALJ properly may consider the claimant’s daily 19 activities in weighing credibility. 20 If 21 claimant’s asserted limitations, it has a bearing on credibility. 22 Garrison, 759 F.3d at 1016. 23 panic attacks prevent her from even doing everyday activities. 24 223). 25 significant problems with memory and concentration. 26 62-63; 27 performing independent personal care, including dressing, bathing, 28 and taking her medications, caring for her dog, doing housework, a cautious claimant’s in level concluding of that (AR 23). daily activities are Garrison, 759 F.3d at 1016. Tommasetti, 533 F.3d at 1039. activity is inconsistent with the Here, Plaintiff asserted that her (AR She testified that her anxiety and panic attacks cause see id. 174). Nevertheless, 22 Plaintiff (AR 56-59, acknowledged 1 and preparing meals. 2 that she is able to manage funds, pay bills, cook, do housekeeping, 3 and care for herself and her dog. 4 activities 5 debilitating symptoms. of (AR 23, 170-72). daily living She reported to Dr. Parikh (AR 346). belie These acknowledged Plaintiff’s assertions of 6 7 Plaintiff 8 participate in 9 disability.’ ” contends basic that human “[e]vidence function ‘is that not a claimant can determinative of (Dkt. No. 19 at 10) (quoting Magallanes v. Bowen, Indeed, “[h]ouse chores, 10 881 F.2d 747, 756 (9th Cir. 1989)). 11 cooking simple meals, self-grooming, paying bills, writing checks, 12 and caring for a cat in one’s own home, as well as occasional 13 shopping 14 responsibilities.” 15 Cir. 16 activities of daily 17 activities are readily 18 Ghanim, 763 F.3d at 1165. 19 activities of daily living undermined her subjective statements of 20 severe, 21 activities that are incompatible with the severity of symptoms 22 alleged can support an adverse credibility determination.”). outside 2017). the home, are not similar to typical work Diedrich v. Berryhill, 874 F.3d 634, 643 (9th The ALJ, debilitating however, living for was not the proposition “transferable to citing a work Plaintiff’s that these environment.” Instead, the ALJ found that Plaintiff’s symptoms. See id. (“Engaging in daily 23 24 Third, the ALJ found that Plaintiff’s acknowledged work search 25 contradicts her allegation of disabling panic attacks and other 26 symptoms. 27 reported that she was applying and looking for work. 28 464). (AR 23). Throughout the medical record, Plaintiff (AR 284, 319, The ALJ properly concluded that Plaintiff’s actions were 23 1 inconsistent with being disabled from all types of employment. 2 23); 3 determination, ALJ may consider Plaintiff’s work record, including 4 employment searches); Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 5 1996) (when assessing subjective complaints, ALJ may consider 6 Plaintiff’s enrollment in training course, attempts to seek work, 7 and failure to find work because of economic slowdown). 8 Plaintiff’s active work search is inconsistent with her allegations 9 that her mental impairments preclude her from engaging in social 10 functions, using the phone, being out in public, and interacting 11 with people. see Bray, 554 F.3d at 1227 (in reaching a (AR credibility Further, (AR 21, 23; see id. 57-58, 223). 12 Plaintiff 13 argues “[a]ll that [Plaintiff’s job search] 14 demonstrates is that the stress of working or looking for work in 15 hopes of being able to work again one day is consistent with [her] 16 testimony.” 17 Plaintiff’s 18 statements that she is unable to be on the phone and interact with 19 people. 20 brief, she “reported in July 2013 that her current job was causing 21 her stress and she was looking for a new job.” 22 12). 23 cannot perform any past relevant work but that there are simple, 24 repetitive 25 coworkers and no public contact, in the national economy that she 26 can perform. (Dkt. No. 19 at 13). acknowledged (AR 21, 23). job The ALJ found, however, that search activities contradict her Further, as Plaintiff acknowledged in her (Dkt. No. 19 at This is consistent with the ALJ’s finding that Plaintiff jobs, with no more (AR 21-25). 27 28 24 than occasional contact with 1 Fourth, the ALJ found that Plaintiff’s allegations of 2 disabling anxiety, chronic panic attacks, and severe depression 3 were 4 indicated that “[h]er condition waxed and waned with treatment.” 5 (AR 21-22). 6 evidence cannot be the sole ground for rejecting a claimant’s 7 subjective testimony, it is a factor that the ALJ may consider when 8 evaluating credibility. 9 at 681; Rollins, 261 F.3d at 857; see SSR 16-3p, at *5 (“objective 10 medical evidence is a useful indicator to help make reasonable 11 conclusions 12 including the effects those symptoms may have on the ability to 13 perform 14 Perspectives Center for six weeks, Plaintiff reported dealing with 15 anxiety better. 16 trying 17 unremarkable. 18 sessions during January through July 2014, Plaintiff reported 19 feeling better and being able to engage in activities of daily 20 living, including walking her dog and enjoying a variety of social 21 interactions. 22 anxiety and depression decreased as she followed through with the 23 treatment plan. 24 status examination in January 2015 was largely unremarkable. 25 359). 26 behavior, affect, motor activity, speech, orientation, alertness, 27 memory, insight, judgment, thought form, and thought content were 28 all normal. inconsistent with the objective medical evidence, which While inconsistencies with the objective medical about the work-related various Bray, 554 F.3d at 1227; Burch, 400 F.3d intensity and activities”). (AR 313). (AR 337-38). (AR 326). After of treating symptoms, with New In October and November 2013, while medications, (AR 269-72). persistence mental status examinations were After individualized, weekly therapy She acknowledged that her symptoms of After moving to California, a mental (AR Although her mood was depressed and anxious, her appearance, (AR 359). Thereafter, her condition fluctuated with 25 1 weekly therapy sessions and treatment. (AR 372-534). Various 2 medications, both prescription and herbal, were used to control 3 Plaintiff’s symptomology, with a range of efficacy. 4 471, 487, 509, 532, 534). 5 than an anxious mood and a restricted and congruent affect, mental 6 status examinations were normal. (AR 410, 442, In May, July, and September 2015, other (AR 488, 510, 533). 7 8 9 Plaintiff does not identify any relevant medical evidence overlooked by the ALJ. Instead, she contends that the ALJ’s 10 subjective symptom analysis was contrary to law. 11 7-9). 12 consistent with the law and supported by specific, clear, and 13 convincing 14 Furthermore, 15 testimony. 16 subjective statements that the ALJ found credible, the ALJ rejected 17 Dr. Parikh’s assessments and those of the State agency mental 18 consultants, who found that Plaintiff’s mental impairments were 19 nonsevere. 20 Plaintiff’s subjective statements, the ALJ found that Plaintiff 21 has moderate difficulties in social functioning and with regard to 22 concentration, persistence, or pace. 23 223) (Plaintiff’s Adult Function Report and Disability Report on 24 appeal). 25 in social functioning and in concentration, persistence, or pace 26 by restricting her to simple, repetitive tasks, involving no more 27 than occasional contact with coworkers and no public contact. 28 20, 21, 23). However, as reasons the discussed for ALJ (AR 21-23). above, rejecting did not the (Dkt. No. 19 at ALJ’s analysis Plaintiff’s completely reject was testimony. Plaintiff’s Indeed, partly because of Plaintiff’s (AR 22, 23; see id. 81-82, 90-92, 349-50). Based on (AR 20) (citing id. 169-77, The ALJ accommodated Plaintiff’s moderate difficulties (AR While these limitations preclude Plaintiff from 26 1 performing any past relevant work, the VE opined that there are 2 jobs in the national economy that Plaintiff can perform. 3 25, 65-66). (AR 23- 4 5 In sum, the ALJ offered clear and convincing reasons, 6 supported by substantial evidence in the record, for his adverse 7 credibility findings. 8 supports the ALJ’s assessment of Plaintiff’s credibility, no remand 9 is required. Accordingly, because substantial evidence 10 11 VIII. 12 CONCLUSION 13 14 Consistent with the foregoing, IT IS ORDERED that Judgment be 15 entered AFFIRMING the decision of the Commissioner. The Clerk of 16 the Court shall serve copies of this Order and the Judgment on 17 counsel for both parties. 18 19 DATED: August 8, 2018 20 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 THIS DECISION IS NOT INTENDED FOR PUBLICATION LEXIS/NEXIS OR ANY OTHER LEGAL DATABASE. 26 27 28 27 IN WESTLAW,
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
