Julie Tibbets v. Nancy A. Berryhill, No. 8:2018cv01401 - Document 23 (C.D. Cal. 2019)
Court Description: MEMORANDUM OPINION by Magistrate Judge Charles F. Eick. Plaintiff's motion for summary judgment is denied and Defendant's motion for summary judgment is granted. (sp)
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Julie Tibbets v. Nancy A. Berryhill Doc. 23 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 JULIE T., ) ) Plaintiff, ) ) v. ) ) NANCY A. BERRYHILL, DEPUTY ) COMMISSIONER FOR OPERATIONS, ) SOCIAL SECURITY, ) ) Defendant. ) ___________________________________) NO. SA CV 18-1401-E MEMORANDUM OPINION 17 18 PROCEEDINGS 19 20 Plaintiff filed a complaint on August 9, 2018, seeking review of 21 the Commissioner’s denial of disability insurance benefits. The 22 parties filed a consent to proceed before a United States Magistrate 23 Judge on August 31, 2018. 24 judgment on March 6, 2019. Defendant filed a motion for summary 25 judgment on April 4, 2019. The Court has taken the motions under 26 submission without oral argument. 27 August 24, 2018. 28 /// Plaintiff filed a motion for summary See L.R. 7-15; “Order,” filed Dockets.Justia.com 1 BACKGROUND 2 3 Plaintiff, a former social worker, sought disability insurance 4 benefits beginning January 1, 2012, based on “a multiplicity of my 5 symptoms” from several alleged impairments (Administrative Record 6 (“A.R.”) 43-49, 55, 152-69). 7 March 31, 2015 (A.R. 23). 8 proceedings was whether Plaintiff was disabled from all employment 9 between January 1, 2012 and March 31, 2015 (“the relevant time 10 period”). 11 1458-60 (9th Cir. 1995). Plaintiff’s insured status expired on Thus, the issue in the administrative See 20 C.F.R. § 404.131; Flaten v. Secretary, 44 F.3d 1453, 12 13 An Administrative Law Judge (“ALJ”) reviewed the extensive record 14 and heard testimony from Plaintiff and a vocational expert (A.R. 19- 15 1051). 16 during the relevant time period: “ulcerative colitis; inflammatory 17 arthritis; shoulder capsulitis; headaches; and neuropathy” (A.R. 25). 18 The ALJ also found, however, that during the relevant time period 19 Plaintiff retained the residual functional capacity for a narrowed 20 range of light work (A.R. 26). 21 by the ALJ included the need for “ready access to a restroom” and the 22 “freedom to alternate sitting with standing and walking at the 23 workstation” (id.). 24 with this residual functional capacity could perform jobs existing in 25 significant numbers in the national economy (A.R. 50-51). 26 on this testimony, the ALJ found Plaintiff not disabled during the 27 relevant time period (A.R. 31-32). 28 (A.R. 1-3). The ALJ found that Plaintiff had several severe impairments The work-related limitations defined The vocational expert testified that a person In reliance The Appeals Council denied review 2 1 SUMMARY OF PLAINTIFF’S ARGUMENTS 2 3 Plaintiff now argues that the ALJ erred by discounting: (1) the 4 opinions of Dr. David Stanton, one of Plaintiff’s treating physicians; 5 and (2) Plaintiff’s testimony and statements regarding the severity of 6 her subjective symptomatology. 7 8 STANDARD OF REVIEW 9 10 Under 42 U.S.C. section 405(g), this Court reviews the 11 Administration’s decision to determine if: (1) the Administration’s 12 findings are supported by substantial evidence; and (2) the 13 Administration used correct legal standards. 14 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 15 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 16 682 F.3d 1157, 1161 (9th Cir. 2012). 17 relevant evidence as a reasonable mind might accept as adequate to 18 support a conclusion.” 19 (1971) (citation and quotations omitted); see also Widmark v. 20 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). See Carmickle v. Substantial evidence is “such Richardson v. Perales, 402 U.S. 389, 401 21 22 If the evidence can support either outcome, the court may 23 not substitute its judgment for that of the ALJ. 24 Commissioner’s decision cannot be affirmed simply by 25 isolating a specific quantum of supporting evidence. 26 Rather, a court must consider the record as a whole, 27 weighing both evidence that supports and evidence that 28 detracts from the [administrative] conclusion. 3 But the 1 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 2 quotations omitted). 3 4 DISCUSSION 5 6 After consideration of the record as a whole, Defendant’s motion 7 is granted and Plaintiff’s motion is denied. The Administration’s 8 findings are supported by substantial evidence and are free from 9 material1 legal error. Plaintiff’s contrary arguments are unavailing. 10 11 I. 12 Substantial Evidence Supports the Conclusion Plaintiff Could Work During the Relevant Time Period. 13 14 The record contains substantial evidence that Plaintiff’s 15 impairments were not of disabling severity during the relevant time 16 period. 17 medical examiners. 18 examiners during the relevant time period that her ulcerative colitis 19 produced only two or three bowel movements per day (A.R. 410-11, 20 620,702). 21 that her ulcerative colitis produced six to eight bowel movements per 22 /// 23 /// 24 /// Some of this evidence came from Plaintiff’s own reports to For example, Plaintiff sometimes reported to By contrast, Plaintiff represented to the Administration 25 26 1 27 28 The harmless error rule applies to the review of administrative decisions regarding disability. See Garcia v. Commissioner, 768 F.3d 925, 932-33 (9th Cir. 2014); McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011). 4 1 day (A.R. 176).2 2 after the relevant time period sometimes described Plaintiff’s 3 ulcerative colitis as “mild,” “asymptomatic,” “fairly controlled,” 4 “stable” and/or “improved” (A.R. 410-11, 612, 716). 5 April of 2015 confirmed chronic colitis but with only “mild to 6 moderate activity” in the sigmoid colon and no other abnormalities 7 (A.R. 725-28). Relatedly, medical notes during and immediately A colonoscopy in 8 9 With regard to her joint symptoms, Plaintiff sometimes reported 10 to medical examiners during the relevant time period that she was 11 making “good improvement” with her pain and range of motion, that she 12 was “doing well,” and that she had “great strength” in her rotator 13 cuff, only “mild” limitation in the rotation of her left shoulder and 14 “tolerable” pain or “virtually no pain” (A.R. 268, 271, 276-78). 15 Relatedly, range of motion and strength testing during the relevant 16 time period also suggested Plaintiff’s joint related difficulties were 17 not of disabling severity (A.R. 268, 271-72, 274, 277-78, 999). 18 rays of Plaintiff’s shoulder taken on July 10, 2013 were essentially 19 normal (A.R. 272). 20 showed only mild right carpal tunnel syndrome (A.R. 783). X- A nerve conduction study in February of 2016 21 22 None of Plaintiff’s many treating physicians (other than Dr. 23 Stanton, discussed infra) opined that Plaintiff’s impairments disabled 24 her from all employment. Two non-examining state agency physicians 25 26 2 27 28 Plaintiff appears to have made the “six to eight” per day representation to the Administration only two days after she made a “two to three” per day representation to a medical examiner (A.R. 176, 178, 702). 5 1 who analyzed Plaintiff’s medical records in 2015 concluded that 2 Plaintiff retained a residual functional capacity even greater than 3 that defined by the ALJ (A.R. 59-63, 71-73). 4 presented, such opinions support the ALJ’s conclusion Plaintiff could 5 work during the relevant time period. 6 F.3d 1144, 1149 (9th Cir. 2001) (opinion of non-examining physician 7 “may constitute substantial evidence when it is consistent with other 8 independent evidence in the record”); see also Andrews v. Shalala, 53 9 F.3d 1035, 1041 (9th Cir. 1995) (where the opinions of non-examining Under the circumstances See Tonapetyan v. Halter, 242 10 physicians do not contradict “all other evidence in the record” an ALJ 11 properly may rely on these opinions); Curry v. Sullivan, 925 F.2d 12 1127, 1130 n.2 (9th Cir. 1990) (same). 13 14 The vocational expert testified that a person having the residual 15 functional capacity the ALJ described could perform jobs existing in 16 significant numbers in the national economy (A.R. 50-51). 17 testimony furnishes substantial evidence of Plaintiff’s non-disability 18 during the relevant time period. 19 1474, 1478-80 (9th Cir. 1989); Martinez v. Heckler, 807 F.2d 771, 775 20 (9th Cir. 1986); see generally Johnson v. Shalala, 60 F.3d 1428, 21 1435-36 (9th Cir. 1995) (ALJ properly may rely on vocational expert to 22 identify jobs claimant can perform); 42 U.S.C. § 423(d)(2)(A); 20 23 C.F.R. §§ 404.1520, 416.920. Such See Barker v. Secretary, 882 F.2d 24 25 To the extent the evidence of record is conflicting, the ALJ 26 properly resolved the conflicts. See Treichler v. Commissioner, 775 27 F.3d 1090, 1098 (9th Cir. 2014) (court “leaves it to the ALJ” to 28 resolve conflicts and ambiguities in the record). 6 The Court must 1 uphold the administrative decision when the evidence “is susceptible 2 to more than one rational interpretation.” 3 F.3d at 1039-40. 4 interpretation of the evidence in the present case notwithstanding any 5 conflicts in the record. Andrews v. Shalala, 53 The Court will uphold the ALJ’s rational 6 7 II. Plaintiff’s Arguments are Unavailing. 8 9 A. The ALJ Did Not Err in Discounting Dr. Stanton’s Opinions. 10 11 On May 8, 2017, Dr. Stanton opined that Plaintiff’s impairments 12 (primarily her ulcerative colitis) had disabled her from all 13 employment since 2007 or earlier (A.R. 958-62). 14 Stanton, during at least the previous decade, Plaintiff could sit no 15 more than 45 minutes at a time and could sit no more than two hours 16 total in an eight hour day (id.). 17 would need to lie down once or twice for one or two hours during the 18 work day and could not frequently lift even ten pounds (id.). According to Dr. According to Dr. Stanton, Plaintiff 19 20 Generally, a treating physician’s conclusions “must be given 21 substantial weight.” Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 22 1988); see Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) (“the 23 ALJ must give sufficient weight to the subjective aspects of a 24 doctor’s opinion. . . . 25 that of a treating physician”) (citation omitted); see also Orn v. 26 Astrue, 495 F.3d 625, 631-33 (9th Cir. 2007) (discussing deference 27 owed to treating physician opinions). 28 /// This is especially true when the opinion is 7 Even where the treating 1 physician’s opinions are contradicted,3 “if the ALJ wishes to 2 disregard the opinion[s] of the treating physician he . . . must make 3 findings setting forth specific, legitimate reasons for doing so that 4 are based on substantial evidence in the record.” 5 853 F.2d 643, 647 (9th Cir. 1987) (citation, quotations and brackets 6 omitted); see Rodriguez v. Bowen, 876 F.2d at 762 (“The ALJ may 7 disregard the treating physician’s opinion, but only by setting forth 8 specific, legitimate reasons for doing so, and this decision must 9 itself be based on substantial evidence”) (citation and quotations Winans v. Bowen, 10 omitted). Contrary to Plaintiff’s arguments, the ALJ stated 11 sufficient reasons for discounting Dr. Stanton’s extreme opinions. 12 13 The ALJ aptly stated that Dr. Stanton’s opinions were 14 inconsistent with Plaintiff’s known activities (A.R. 29). Indeed, Dr. 15 Stanton opined Plaintiff was disabled from all employment during years 16 when Plaintiff was in fact employed (A.R. 41-43) (Plaintiff testifying 17 to her employment in 2007, 2008, 2009 and 2010). 18 Stanton’s opinions regarding Plaintiff’s supposed sitting intolerance 19 and supposed need to lie down appear inconsistent with Plaintiff’s 20 demonstrated ability to endure long car trips to Northern California 21 and long air travel to Ireland (A.R. 45-46, 274). 22 inconsistencies between a treating physician’s opinions and a 23 claimant’s activities can furnish a sufficient reason for rejecting 24 the treating physician’s opinions. Additionally, Dr. Such See, e.g., Rollins v. Massanari, 25 26 3 27 28 Rejection of an uncontradicted opinion of a treating physician requires a statement of “clear and convincing” reasons. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984). 8 1 261 F.3d 853, 856 (9th Cir. 2001). 2 3 The ALJ also stated that Dr. Stanton’s opinions were inconsistent 4 with the medical evidence of record (A.R. 29-30). Indeed, Dr. 5 Stanton’s own medical treatment notes of examinations and testing (and 6 the treatment notes of other providers in “Dr. Stanton & Associates a 7 Medical Group, Inc.”) suggest Plaintiff was not as limited as Dr. 8 Stanton opined (A.R. 410-11, 594-99, 603, 620-21, 702-04). 9 properly reject a treating physician’s opinion where, as here, the An ALJ may 10 opinion is not adequately supported by treatment notes or objective 11 clinical findings. 12 Cir. 2008) (ALJ may reject a treating physician’s opinion that is 13 inconsistent with other medical evidence, including the physician’s 14 treatment notes); Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 15 2003) (treating physician’s opinion properly rejected where 16 physician’s treatment notes “provide no basis for the functional 17 restrictions he opined should be imposed on [the claimant]”). See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th 18 19 The ALJ also pointed out that Dr. Stanton’s opinions were 20 inconsistent with the opinions of the state agency physicians (A.R. 21 29). 22 itself, does not provide sufficient justification for discounting the 23 opinion of a treating physician. 24 831 (9th Cir. 1995). 25 place sole reliance on this conflict. 26 reasons, in whole, supported by evidence in the record, to justify 27 discounting Dr. Stanton’s extreme opinions. 28 /// A conflicting opinion by a non-examining physician, in and of See Lester v. Chater, 81 F.3d 821, In the present case, however, the ALJ did not 9 The ALJ stated sufficient 1 B. The ALJ Did Not Err in Discounting Plaintiff’s Testimony and 2 Statements Regarding the Severity of Her Subjective 3 Symptomatology. 4 5 Plaintiff challenges the legal sufficiency of the ALJ’s stated 6 reasons for discounting Plaintiff’s subjective complaints. An ALJ’s 7 assessment of a claimant’s credibility is entitled to “great weight.” 8 Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th Cir. 1990); Nyman v. 9 Heckler, 779 F.2d 528, 531 (9th Cir. 1985). Where, as here, an ALJ 10 finds that the claimant’s medically determinable impairments 11 reasonably could be expected to cause some degree of the alleged 12 symptoms of which the claimant subjectively complains, any discounting 13 of the claimant’s complaints must be supported by specific, cogent 14 findings. 15 Lester v. Chater, 81 F.3d at 834; but see Smolen v. Chater, 80 F.3d at 16 1282-84 (indicating that ALJ must offer “specific, clear and 17 convincing” reasons to reject a claimant’s testimony where there is no 18 evidence of “malingering”).4 19 sufficiently specific to allow a reviewing court to conclude the ALJ See Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010); An ALJ’s credibility finding “must be 20 21 22 23 24 25 26 27 28 4 In the absence of an ALJ’s reliance on evidence of “malingering,” most recent Ninth Circuit cases have applied the “clear and convincing” standard. See, e.g., Leon v. Berryhill, 880 F.3d 1041, 1046 (9th Cir. 2017); Brown-Hunter v. Colvin, 806 F.3d 487, 488-89 (9th Cir. 2015); Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014); Treichler v. Commissioner, 775 F.3d at 1102; Ghanim v. Colvin, 763 F.3d 1154, 1163 n.9 (9th Cir. 2014); Garrison v. Colvin, 759 F.3d 995, 1014-15 & n.18 (9th Cir. 2014); see also Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting earlier cases). In the present case, the ALJ’s findings are sufficient under either standard, so the distinction between the two standards (if any) is academic. 10 1 rejected the claimant’s testimony on permissible grounds and did not 2 arbitrarily discredit the claimant’s testimony.” 3 Barnhart, 367 F.3d 882, 885 (9th Cir. 2004) (internal citations and 4 quotations omitted); see also Social Security Ruling (“SSR”) 96-7p 5 (explaining how to assess a claimant’s credibility), superseded, SSR 6 16-3p (eff. Mar. 28, 2016).5 7 sufficient reasons for finding Plaintiff’s subjective complaints less 8 than fully credible. See Moisa v. As discussed below, the ALJ stated 9 10 The ALJ stressed that Plaintiff’s allegations were inconsistent 11 with the medical record, including records reflecting Plaintiff’s own 12 statements to medical providers (A.R. 27-30). 13 discussed the notable extent to which Plaintiff’s statements to the 14 Administration contradicted Plaintiff’s statements to medical 15 providers. 16 basis for rejecting the claimant’s subjective testimony.” 17 v. Commissioner, 533 F.3d 1155, 1161 (9th Cir. 2008); see Molina v. 18 Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (claimant’s 19 inconsistencies can adversely impact claimant’s credibility); Verduzco 20 v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) (inconsistences in a 21 claimant’s statements were among the “clear and convincing reasons” 22 for discounting claimant’s credibility). 23 /// The Court already has “Contradiction with the medical record is a sufficient Carmickle 24 5 25 26 27 28 The appropriate analysis under the superseding SSR is substantially the same as the analysis under the superseded SSR. See R.P. v. Colvin, 2016 WL 7042259, at *9 n.7 (E.D. Cal. Dec. 5, 2016) (stating that SSR 16-3p “implemented a change in diction rather than substance”) (citations omitted); see also Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (suggesting that SSR 16-3p “makes clear what our precedent already required”). 11 1 The ALJ also reasonably stated that Plaintiff’s admitted 2 activities suggested that her functional limits during the relevant 3 time period were not as profound as Plaintiff claimed. 4 Plaintiff traveled long distances by car and by air, grocery shopped, 5 performed household cleaning, including vacuuming and the cleaning of 6 sinks and toilets, and watered her lawn (A.R. 45-46, 194, 202, 274). 7 Inconsistencies between claimed incapacity and admitted activities 8 properly can impugn a claimant’s credibility. 9 674 F.3d at 1112; Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. For example, See Molina v. Astrue, 10 2002); see also Tommasetti v. Astrue, 533 F.3d at 1040 (“The ALJ 11 properly could infer from [claimant’s ability to travel to Venezuela] 12 that [claimant] was not as physically limited as he purported to be”); 13 Burch v. Barnhart, 400 F.3d 676, 680-812 (9th Cir. 2005) (daily 14 activities can constitute “clear and convincing reasons” for 15 discounting a claimant’s testimony); Rollins v. Massanari, 261 F.3d at 16 857 (claimant’s testimony regarding daily domestic activities 17 undermined the credibility of her pain-related testimony). 18 19 The objective medical evidence cannot properly constitute the 20 sole basis for discounting a claimant’s complaints. See Burch v. 21 Barnhart, 400 F.3d at 681. 22 was not the only stated basis for discounting Plaintiff’s complaints 23 in the present case. However, the objective medical evidence 24 25 In sum, the ALJ stated sufficient valid reasons to allow this 26 Court to conclude that the ALJ discounted Plaintiff’s credibility on 27 permissible grounds. 28 Court therefore defers to the ALJ’s credibility determination. See Moisa v. Barnhart, 367 F.3d at 885. 12 The See 1 Lasich v. Astrue, 252 Fed. App’x 823, 825 (9th Cir. 2007) (court will 2 defer to Administration’s credibility determination when the proper 3 process is used and proper reasons for the decision are provided); 4 accord Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 5 1464 (9th Cir. 1995).6 6 7 CONCLUSION 8 9 For all of the foregoing reasons,7 Plaintiff’s motion for summary 10 judgment is denied and Defendant’s motion for summary judgment is 11 granted. 12 13 LET JUDGMENT BE ENTERED ACCORDINGLY. 14 15 DATED: May 10, 2019. 16 17 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 6 The Court need not and does not determine whether Plaintiff’s subjective complaints are credible. Some evidence suggests that those complaints may be credible. However, it is for the Administration, and not this Court, to evaluate the credibility of witnesses. See Magallanes v. Bowen, 881 F.2d 747, 750, 755-56 (9th Cir. 1989). 7 25 26 27 28 The Court has considered and rejected each of Plaintiff’s arguments. Neither Plaintiff’s arguments nor the circumstances of this case show any “substantial likelihood of prejudice” resulting from any error allegedly committed by the Administration. See generally McLeod v. Astrue, 640 F.3d 881, 887-88 (9th Cir. 2011) (discussing the standards applicable to evaluating prejudice). 13
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