Jami S. Vogelsang v. Nancy A. Berryhill, No. 8:2017cv01921 - Document 18 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge John D. Early. IT IS ORDERED that Judgment be entered affirming the decision of the Commissioner and dismissing this action with prejudice. (see document for further information) (hr)
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Jami S. Vogelsang v. Nancy A. Berryhill Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION 11 JAMI S. VOGELSANG, 12 13 14 15 16 Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, 17 Defendant. 18 19 20 21 22 23 24 25 26 27 ) Case No. 8:17-cv-01921-JDE ) ) ) MEMORANDUM OPINION AND ) ) ORDER ) ) ) ) ) ) ) ) ) Plaintiff Jami S. Vogelsang (“Plaintiff”) filed a Complaint on October 31, 2017, seeking review of the Commissioner’s denial of her application for disability insurance benefits (“DIB”). The parties filed a Joint Submission (“Jt. Stip.”) regarding the issues in dispute on July 11, 2018. The matter now is ready for decision. I. BACKGROUND Plaintiff filed her application for DIB on May 14, 2013, alleging disability on March 31, 2012. Administrative Record (“AR”) 152-53. After her 28 Dockets.Justia.com 1 application was denied initially (AR 71) and on reconsideration (AR 104-08), 2 Plaintiff requested an administrative hearing (AR 111-12), which was held on 3 November 24, 2015. AR 38, 40. Plaintiff, represented by counsel, appeared 4 and testified at the hearing before an Administrative Law Judge (“ALJ”), as 5 did a vocational expert. AR 38-69. 6 On March 14, 2016, the ALJ issued a written decision finding Plaintiff 7 was not disabled. AR 21-32. The ALJ found that Plaintiff had not engaged in 8 substantial gainful activity since the alleged disability onset date and suffered 9 from the following severe impairments: history of left thoracoscopic resection 10 of apical mass with residual brachial plexopathy of the left upper extremity; 11 migraines; hypothyroidism; obesity; and depression. AR 23. The ALJ found 12 Plaintiff did not have an impairment or combination of impairments that met 13 or medically equaled a listed impairment. AR 23-24. The ALJ also found 14 Plaintiff had the residual functional capacity (“RFC”) to perform light work, 15 with the following limitations: Plaintiff could (1) lift and carry 10 pounds 16 frequently, and 20 pounds occasionally, while being able to push and pull 17 within those weight restrictions, except that she was limited to occasional 18 pushing and pulling with her left upper extremity; (2) occasionally handle and 19 finger with her non-dominate left upper extremity; (3) not be exposed to direct 20 sunlight; and (4) occasionally be exposed to temperature extremes, excessive 21 noise, environmental irritants, hazardous machinery, and unprotected heights. 22 AR 25. The ALJ also found she was limited to unskilled work with no fast- 23 paced production requirements while being able to deal with the public. Id. 24 The ALJ further found Plaintiff was incapable of performing her past relevant 25 work as a claims examiner and pharmacy technician. AR 30. However, the 26 ALJ found, considering Plaintiff’s age as a “younger individual,” her 27 education, work experience, and RFC, jobs existed in significant numbers in 28 the national economy that Plaintiff could perform. AR 31-32. Accordingly, the 2 1 ALJ concluded that Plaintiff was not under a “disability,” as defined in the 2 Social Security Act. AR 32. 3 On September 1, 2017, the Appeals Council denied Plaintiff’s request for 4 review, making the ALJ’s decision the Commissioner’s final decision. AR 1-7. 5 III. 6 LEGAL STANDARDS 7 8 9 A. Standard of Review Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s decision to deny benefits. The ALJ’s findings and decision 10 should be upheld if they are free from legal error and supported by substantial 11 evidence based on the record as a whole. Brown-Hunter v. Colvin, 806 F.3d 12 487, 492 (9th Cir. 2015) (as amended); Parra v. Astrue, 481 F.3d 742, 746 (9th 13 Cir. 2007). Substantial evidence means such relevant evidence as a reasonable 14 person might accept as adequate to support a conclusion. Lingenfelter v. 15 Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla, but less 16 than a preponderance. Id. To determine whether substantial evidence supports 17 a finding, the reviewing court “must review the administrative record as a 18 whole, weighing both the evidence that supports and the evidence that detracts 19 from the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 720 20 (9th Cir. 1998). “If the evidence can reasonably support either affirming or 21 reversing,” the reviewing court “may not substitute its judgment” for that of 22 the Commissioner. Id. at 720-21; see also Molina v. Astrue, 674 F.3d 1104, 23 1111 (9th Cir. 2012) (“Even when the evidence is susceptible to more than one 24 rational interpretation, [the court] must uphold the ALJ’s findings if they are 25 supported by inferences reasonably drawn from the record.”). However, a 26 court may review only the reasons stated by the ALJ in his decision “and may 27 not affirm the ALJ on a ground upon which he did not rely.” Orn v. Astrue, 28 495 F.3d 625, 630 (9th Cir. 2007). 3 1 Lastly, even when the ALJ commits legal error, the Court upholds the 2 decision where that error is harmless. Molina, 674 F.3d at 1115. An error is 3 harmless if it is “inconsequential to the ultimate nondisability determination,” 4 or if “the agency’s path may reasonably be discerned, even if the agency 5 explains its decision with less than ideal clarity.” Brown-Hunter, 806 F.3d at 6 492 (citation omitted). 7 8 9 10 11 B. Standard for Determining Disability Benefits When the claimant’s case has proceeded to consideration by an ALJ, the ALJ conducts a five-step sequential evaluation to determine at each step if the claimant is or is not disabled. See Molina, 674 F.3d at 1110. First, the ALJ considers whether the claimant currently works at a job 12 that meets the criteria for “substantial gainful activity.” Id. If not, the ALJ 13 proceeds to a second step to determine whether the claimant has a “severe” 14 medically determinable physical or mental impairment or combination of 15 impairments that has lasted for more than 12 months. Id. If so, the ALJ 16 proceeds to a third step to determine whether the claimant’s impairments 17 render the claimant disabled because they “meet or equal” any of the “listed 18 impairments” set forth in the Social Security regulations at 20 C.F.R. Part 404, 19 Subpart P, Appendix 1. See Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 20 996, 1001 (9th Cir. 2015). 21 If the claimant’s impairments do not meet or equal a “listed 22 impairment,” before proceeding to the fourth step the ALJ assesses the 23 claimant’s RFC, that is, what the claimant can do on a sustained basis despite 24 the limitations from his impairments. See 20 C.F.R. §§ 404.1520(a)(4), 25 416.920(a)(4); Social Security Ruling (“SSR”) 96-8p. After determining the 26 claimant’s RFC, the ALJ proceeds to the fourth step and determines whether 27 the claimant has the RFC to perform his past relevant work, either as he 28 “actually” performed it when he worked in the past, or as that same job is 4 1 “generally” performed in the national economy. See Stacy v. Colvin, 825 F.3d 2 563, 569 (9th Cir. 2016). If the claimant cannot perform his past relevant work, the ALJ proceeds 3 4 to a fifth and final step to determine whether there is any other work, in light of 5 the claimant’s RFC, age, education, and work experience, that the claimant 6 can perform and that exists in “significant numbers” in either the national or 7 regional economies. See Tackett v. Apfel, 180 F.3d 1094, 1100-01 (9th Cir. 8 1999). If the claimant can do other work, he is not disabled; but if the claimant 9 cannot do other work and meets the duration requirement, the claimant is 10 disabled. See Tackett, 180 F.3d at 1099. The claimant generally bears the burden at each of steps one through 11 12 four to show that he is disabled, or that he meets the requirements to proceed 13 to the next step; and the claimant bears the ultimate burden to show that he is 14 disabled. See, e.g., Molina, 674 F.3d at 1110; Johnson v. Shalala, 60 F.3d 15 1428, 1432 (9th Cir. 1995). However, at Step Five, the ALJ has a “limited” 16 burden of production to identify representative jobs that the claimant can 17 perform and that exist in “significant” numbers in the economy. See Hill v. 18 Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); Tackett, 180 F.3d at 1100. 19 IV. 20 DISCUSSION 21 The parties present two disputed issues (Jt. Stip. at 4): 22 Issue No. 1: Whether the ALJ properly determined that Plaintiff’s 23 migraines do not equal a listing; and Issue No. 2: Whether the ALJ properly considered Plaintiff’s subjective 24 25 statements about her limitations. 26 A. 27 28 Listing Plaintiff argues the ALJ erred by determining that Plaintiff’s migraine headaches do not meet Listing 11.03, which pertains to non-convulsive (petite 5 1 mal) seizures, “because an ALJ is not a medical expert and he is not qualified 2 to make the medical call on whether the claimant equals a listed impairment.” 3 Jt. Stip. at 5. She contends the ALJ’s analysis is faulty because, by discussing 4 Listing 11.03, the ALJ should have also evaluated whether Plaintiff met 5 Listing 11.02, which pertains to grand mal seizures. Jt. Stip. at 6-7. 6 1. Applicable Law 7 At the Step Three, ALJs determine if an impairment or combination of 8 impairments “meets or equals” an impairment listed in 20 C.F.R. Part 404, 9 subpart P, appendix 1 (“the Listings”). 20 C.F.R. §§ 404.1525(a), 404.1526, 10 416.925(a), 416.926. The Listings describe impairments that would prevent an 11 adult, regardless of age, education, or work experience, from performing any 12 gainful activity. An impairment meets a Listing when all of the medical criteria 13 required are satisfied. Tackett, 180 F.3d at 1099 (“To meet a listed impairment, 14 a claimant must establish that he or she meets each characteristic of a listed 15 impairment relevant to his or her claim.”). If an “impairment meets or equals 16 one of the listed impairments, the claimant is conclusively presumed to be 17 disabled.” Bowen v. Yuckert, 482 U.S. 137, 141 (1987). 18 Claimants bear the burden of establishing a prima facie case of disability 19 under the Listings. See Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir. 2002). 20 “To equal a listed impairment, a claimant must establish symptoms, signs, and 21 laboratory findings at least equal in severity and duration to the characteristics 22 of a relevant listed impairment . . . .” Tackett, 180 F.3d at 1099. 23 2. Analysis 24 Plaintiff contends the ALJ erred by making the listing determination 25 because she is not a medical expert, and by discussing Listing 11.03 but at the 26 same time failing to discuss Listing 11.02. 27 28 The ALJ determined Plaintiff did “not have an impairment or combination of impairments that meets or medically equals the severity of one 6 1 of the listed impairments.” AR 24. As part of this finding, the ALJ specifically 2 mentioned that Plaintiff did not meet or equal Listings 9.00, 11.03, 11.14, and 3 12.04. AR 24-25. Later in the decision, the ALJ discussed Plaintiff’s migraine 4 headaches and noted they do not have a specific medical listing, but Listing 5 11.03 was analogous for considering medical equivalence. AR 28. The ALJ 6 mentioned there are essential components of 11.03 that are analogous to 7 migraines, including the requirement of a documented, detailed description of 8 a typical headache event pattern, and that the migraines should occur more 9 frequently than once weekly despite at least three months of treatment. Id. The 10 ALJ found Plaintiff’s condition did not equal the Listing for several reasons, 11 including that Plaintiff did not have migraine events or episodes occurring 12 more than once weekly that lasted for a continuous 12-month period. Id. See 13 also 20 C.F.R. § 404.1520(d) (explaining that, before considering the listings, 14 claimant’s impairment must meet the duration requirement). 15 Plaintiff seems to contend that, because the ALJ determined that Listing 16 11.03 was “worthy of a detailed analysis,” she erred by not also discussing 17 Listing 11.02. See Jt. Stip. at 8. But, she acknowledges “a statement that the 18 individual’s impairment(s) does not medically equal a listed impairment 19 constitutes sufficient articulation for this finding.” Jt. Stip. at 6; see also Jt. 20 Stip. at 8 (“If the ALJ had remained silent on the equaling issue his [sic] 21 decision may have passed muster.”); Jt. Stip. at 18 (“if the ALJ had simply 22 stated that [Plaintiff] did not equal the listing this likely would have been 23 sufficient”). Plaintiff points to no authority supporting the proposition that, 24 simply because the ALJ performed a detailed analysis of one listing, which she 25 was not required to perform, an obligation then arose to discuss another listing. 26 Moreover, “[a]n ALJ is not required to discuss the combined effects of a 27 claimant’s impairments or compare them to any listing in an equivalency 28 determination, unless the claimant presents evidence in an effort to establish 7 1 equivalence.” Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005). Plaintiff 2 does not dispute Defendant’s observation that Plaintiff failed to present 3 argument or evidence “to establish equivalence” during the proceedings before 4 the ALJ. Jt. Stip. at 18. Under such circumstances, “the ALJ did not need to 5 explain [the] conclusion.” See Pruitt v. Comm’r Soc. Sec., 612 F. App’x 891, 6 894 (9th Cir. 2015) (finding that, because claimant “failed to present a theory 7 to the ALJ as to how her combined impairments meet or equal [a listing],” the 8 ALJ was not required to explain his conclusion); Gonzalez v. Sullivan, 914 9 F.2d 1197, 1201 (9th Cir. 1990) (stating that it is unnecessary for the ALJ to 10 explain why a claimant failed to satisfy every section of the Listing of 11 impairments). Because Plaintiff did not present evidence at the administrative 12 level that her impairments equaled listing 11.02, the ALJ did not err by not 13 identifying specific evidence to support her conclusion at Step Three. Notably, Plaintiff also did not attempt to show she met or equaled listing 14 15 11.02 before the Appeals Council. In fact, she stated she “does not argue that 16 she equals a listing” (AR 244), and instead challenged the ALJ’s Step Five and 17 credibility determinations. AR 244-45. Even here, Plaintiff fails to show she 18 equals the listing, failing to establish present medical findings equal in severity 19 to every criteria for the listing.1 See Kennedy v. Colvin, 738 F.3d 1172, 1176 20 21 22 23 24 25 26 27 28 1 To satisfy Listing 11.02, Plaintiff had to show she met the following criteria: convulsive epilepsy (grand mal or psychomotor), documented by detailed description of a typical seizure pattern, including all associated phenomena; occurring more frequently than once a month in spite of at least 3 months of prescribed treatment [,][w]ith [one of the following]: [d]aytime episodes (loss of consciousness and convulsive seizures) or nocturnal episodes manifesting residuals which interfere significantly with activity during the day. 20 C.F.R. Part 404, Subpart P, Appendix 1. Listing 11.02 also requires “[a]t least one detailed description of a typical seizure,” including “the presence or absence of aura, tongue bites, sphincter control, injuries associated with the attack, and postictal phenomena.” 20 C.F.R. Part 404, Subpt. P, App. 1, Listing 11.00(A) (12/15/04 to 09/28/16). A reporting physician “should indicate the extent to which description of 8 1 (9th Cir. 2014) (“Listed impairments are purposefully set at a high level of 2 severity because the listings were designed to operate as a presumption of 3 disability that makes further inquiry unnecessary.”). Rather, Plaintiff appears 4 to ask the Court to find structural error requiring automatic remand simply 5 because the ALJ did not discuss Listing 11.02. See, e.g., Jt. Stip. at 9 (arguing 6 the Court “should remand this case with directions to the ALJ to fully and 7 fairly develop the record by either calling a medical expert to testify regarding 8 the equaling of the listing or to send out interrogatories to a medical expert so 9 that she can make an informed determination”). Plaintiff fails to show 10 prejudice. See Molina, 674 F.3d at 1115; Cruz v. Berryhill, 2018 WL 1709499, 11 at *3 (W.D. Wash. Apr. 9, 2018) (“Even if the ALJ did err in failing to explain 12 why Plaintiff did not satisfy any of the listings in Section 11.00, Plaintiff has 13 not shown that he actually does meet or equal any of the listings described in 14 Section 11.00, and therefore has failed to show how he was prejudiced by the 15 ALJ’s failure to specifically address the requirements of those listings.”) 16 Plaintiff has not met her burden of proving error, or that she meets the 17 criteria of Listing 11.02. The Court finds that the ALJ’s Step Three finding is 18 supported by substantial evidence. 19 B. 20 21 22 23 24 Plaintiff’s Subjective Symptom Testimony In Issue No. 2, Plaintiff argues the ALJ improperly discounted her subjective symptom testimony. 1. Applicable Law Where a disability claimant produces objective medical evidence of an underlying impairment that could reasonably be expected to produce the pain 25 26 27 28 seizures reflects his own observations and the source of ancillary information.” Id. And “if professional observation is not available,” then “[t]estimony of persons other than the claimant is essential for description of type and frequency of seizures.” Id.; see also Mobbs v. Berryhill, 2017 WL 6759321, at *3-4 (W.D. Wash. Dec. 29, 2017). 9 1 or other symptoms alleged, absent evidence of malingering, the ALJ must 2 provide “‘specific, clear and convincing reasons for’ rejecting the claimant’s 3 testimony regarding the severity of the claimant’s symptoms.” Treichler v. 4 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (citation 5 omitted); Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); see also 20 6 C.F.R. § 416.929. The ALJ’s findings “must be sufficiently specific to allow a 7 reviewing court to conclude that the [ALJ] rejected [the] claimant’s testimony 8 on permissible grounds and did not arbitrarily discredit the claimant’s 9 testimony.” Moisa, 367 F.3d at 885 (citation omitted). However, if the ALJ’s 10 assessment of the claimant’s testimony is reasonable and is supported by 11 substantial evidence, it is not the Court’s role to “second-guess” it. See Rollins 12 v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Finally, the ALJ's credibility 13 finding may be upheld even if not all of the ALJ’s reasons for rejecting the 14 claimant’s testimony are upheld. See Batson v. Comm’r Soc. Sec. Admin, 359 15 F.3d 1190, 1197 (9th Cir. 2004). 16 2. Analysis 17 During the administrative hearing, Plaintiff testified a mass was found in 18 her chest in late 2011 and she underwent surgeries to have it extracted. AR 43. 19 After the second surgery, she developed severe left hand and arm pain, with a 20 burning, tingling, numbness, and weakness. AR 45-46. She has difficulty 21 picking up small items, like Q-tips or quarters, and she has difficulty gripping, 22 grasping, and typing with her left hand. AR 44-45. She drops things and can 23 carry only about five to ten pounds with her left arm. AR 47, 55. She is right 24 hand dominant, and can still drive, care for herself, vacuum, do laundry, 25 grocery shop, walk her dog, tend to her guinea pigs, and use the computer. AR 26 47-48, 50, 55. Due to her pain and fatigue, she has problems focusing on things 27 such as reading and watching television, as well as completing tasks. AR 47. 28 Her pain is constant all the way down her left arm to her hand, despite 10 1 medication. AR 45, 49, 52-53. The heat from taking baths, which she does 2 almost every night, helps, as does acupuncture. AR 50-51. She also has chronic 3 migraines occurring two to three times a month and lasting up to six hours, 4 with sensitivity to light, noise, and smell. AR 53-54, 56-57. However, if she 5 “catch[es]” her migraines early and takes her medication, she can get rid of 6 them. AR 56-57. She is depressed as everything weighs her down. AR 54. 7 The ALJ found Plaintiff’s medically determinable impairments could 8 reasonably be expected to cause the alleged symptoms, but her statements 9 “concerning the intensity, persistence[,] and limiting effects of these symptoms 10 [were] not entirely credible” for the reasons discussed in the decision. AR 28. 11 The ALJ concluded Plaintiff’s testimony about her depression was belied by 12 the objective medical evidence; delayed complaints of symptoms; lack of 13 aggressive treatment; symptom management with medication; and conflict 14 with psychological examinations. AR 27. Regarding her migraines, the ALJ 15 noted Plaintiff has a history of migraines, but found they were well controlled 16 until April 2015; the record did not show she complied with her neurologist’s 17 advice to complete a headache diary to identify triggers; and there was no 18 evidence that her migraines occurred more frequently than once a week despite 19 three months of treatment. AR 28. Finally, regarding her left upper extremity, 20 Plaintiff’s allegations of a disabling condition conflicted with opinions of State 21 agency medical consultants; her pain symptoms stabilized with medication; the 22 functionality of her left hand improved with physical therapy; and Plaintiff 23 admitted she was still highly functional in her daily activities. AR 29. As 24 explained below, the ALJ provided legally sufficient reasons for discrediting 25 Plaintiff’s subjective symptom testimony. 26 Preliminarily, the Court notes Plaintiff has challenged only one aspect of 27 the credibility determination: “Specifically, [Plaintiff contends that] the ALJ 28 failed to provide any specific reason to reject [Plaintiff]’s testimony that she 11 1 suffers from migraines 2-3 times per month that last from 1-3 days.” Jt. Stip. at 2 22; see also Jt. Stip. 35. Plaintiff does not discuss her testimony regarding 3 depression or left upper extremity limitations, or many of the ALJ’s reasons for 4 discounting testimony about those symptoms. Because the ALJ was required 5 to provide only one valid reason for this Court to uphold the credibility 6 finding, the Court could treat Plaintiff’s failure to address the other reasons as 7 waiver of the credibility determination. See Batson, 359 F.3d at 1196; Greger 8 v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006) (claimant waived issues not 9 raised before the district court); Williams v. Comm’r, Soc. Sec. Admin., 2018 10 WL 1709505, at *3 (D. Or. Apr. 9, 2018) (“Because the ALJ is only required to 11 provide a single valid reason for rejecting a claimant’s pain complaints, any 12 one of the ALJ’s reasons would be sufficient to affirm the overall credibility 13 determination.”); Owens v. Colvin, 2014 WL 5602884, at *4 (C.D. Cal. Nov. 14 4, 2014) (claimant’s failure to discuss, or even acknowledge, ALJ’s reliance on 15 certain reasons waived any challenge to those aspects of ALJ’s finding). 16 However, Court does not do so here, but it will limit its review to Plaintiff’s 17 subjective migraine headache complaints, and the reasoning for discounting 18 those complaints. 19 First, the ALJ discredited the severity of Plaintiff’s migraines because 20 they did not lead to significant symptoms until April 2015, which was years 21 into the relevant period. AR 28. “Impairments that can be controlled 22 effectively with medication are not disabling.” See Warre v. Comm’r Soc. Sec. 23 Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). The medical record shows that, 24 in November 2011, Plaintiff had migraines, but they had been “well- 25 controlled.” AR 340. In April 2012, Dr. Thomas P. DiJulio also noted that 26 Plaintiff had a history of migraines, but that they occurred only “every 4 27 months or so.” AR 306. In March 2015, Plaintiff complained of migraines 28 during a routine check-up with Dr. Robert Moon. AR 647. Dr. Moon noted 12 1 Plaintiff had “unspecified migraines,” “without mention of intractable 2 migraine” and “without mention of status migrainosus.”2 AR 648. Finally, in 3 April 2015, Plaintiff told Dr. Nancy Vu that she had “severe headaches” seven 4 days a month, many accompanied by nausea, blurred vision, poor sleep, and 5 sensitivity to bright lights. AR 629. These records and findings support the 6 ALJ’s conclusion. Plaintiff alleged she became disabled in March 2012, but her 7 migraines did not arise as a serious concern until years later, in early 2015. The 8 ALJ properly considered the fact that Plaintiff’s migraines were controlled for 9 a good portion of the relevant period. See Warre, 439 F.3d at 1006; Gaus v. 10 Colvin, 2014 WL 5581048, at *3 (D. Ariz. Oct. 31, 2014) (credibility 11 determination supported in part because claimant’s seizures were under fair or 12 good control during much of the relevant period). Second, the ALJ discredited the migraine complaints because Plaintiff 13 14 did not appear to have followed her neurologist’s recommendation to complete 15 a headache diary. See AR 28, 630. In assessing credibility, “the ALJ may 16 consider . . . unexplained or inadequately explained failure . . . to follow a 17 prescribed course of treatment.” See Molina, 674 F.3d at 1112; see also 18 Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) (same). The record 19 shows Plaintiff was repeatedly advised by her neurologist to complete a 20 headache diary, but there is no indication this was done.3 AR 625, 627, 630. 21 Accordingly, the ALJ properly relied on Plaintiff’s failure to follow this simple 22 23 24 2 An intractable migraine, also called “status migrainosus,” “describe[s] a persistent migraine that is either 1) difficult to treat or [2]) fails to respond to standard and/or aggressive treatments.” Swartz v. Berryhill, 2018 WL 1311425, at *2 (C.D. Cal. Mar. 13, 2018) (citation omitted). 25 3 26 27 28 Such a diary might have also assisted Plaintiff with Issue No. 1. See Needham v. Comm’r Soc. Sec., 2017 WL 4052184, at *11 (D. Or. Aug. 8, 2017) (mentioning claimant’s headache diary, along with other medical evidence of record, as evidence she met components of Listing 11.03). 13 1 treatment recommendation. See Molina, 674 F.3d at 1112; Bunnell, 947 F.2d 2 at 346; Edlin v. Colvin, 2014 WL 5500311, at *5 (E.D. Wash. Oct. 30, 2014) 3 (ALJ properly relied on claimant’s lack of compliance with treatment, 4 including failing to maintain a headache diary, in discounting credibility). 5 Third, and finally, the ALJ noted “[i]t is generally understood that 6 migraine headaches will rarely prevent a person from working for a continuous 7 12 months[,] but . . . there are exceptions.” AR 28. The ALJ then found a lack 8 of objective medical evidence showing Plaintiff’s migraines had been severe for 9 the continuous 12-month period, or showing frequency more than once weekly 10 despite at least three months of prescribed treatment. Id. “Although lack of 11 medical evidence cannot form the sole basis for discounting pain testimony, it 12 is a factor that the ALJ can consider in [her] credibility analysis.” Burch, 400 13 F.3d at 681; see also Rollins, 261 F.3d at 857. As discussed in Issue No. 1, 14 Plaintiff does not point to objective evidence supporting either deficiency; 15 instead she points to her own subjective complaint testimony and her 16 subjective disability reports. Jt. Stip. at 8, 19, 35-36. 17 Here, the ALJ carefully identified “which testimony she found not 18 credible, and . . . explained which evidence contradicted that testimony.” 19 Brown-Hunter, 806 F.3d at 494 (emphasis in original). The Court finds that 20 ALJ provided sufficiently specific, clear, and convincing reasons for 21 discounting Plaintiff’s migraine symptom testimony, specifically, the lack of 22 supporting objective medical evidence, which cannot be the only ground, 23 control of Plaintiff’s condition for a substantial part of the relevant period, and 24 failure to follow treatment recommendations , in discounting Plaintiff’s 25 subjective symptom testimony. Those grounds, together, are sufficient to 26 affirm the ALJ’s decision on the issue. 27 /// 28 /// 14 1 IV. 2 ORDER 3 IT THEREFORE IS ORDERED that Judgment be entered affirming 4 the decision of the Commissioner and dismissing this action with prejudice. 5 6 Dated: August 30, 2018 7 ______________________________ JOHN D. EARLY United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15
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