Daron Stamps v. Carolyn W. Colvin

Filing 24

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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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DARON STAMPS,

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Plaintiff,
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v.
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NANCY A. BERRYHILL, Acting
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Commissioner of Social Security,
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Defendant.
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____________________________________)

NO. CV 16-1042-E

MEMORANDUM OPINION

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PROCEEDINGS

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Plaintiff filed a complaint on February 16, 2016, seeking review

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of the Commissioner’s denial of benefits.

The parties consented to

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proceed before a United States Magistrate Judge on March 25, 2016.

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Plaintiff filed a motion for summary judgment on December 30, 2016.

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Defendant filed a motion for summary judgment on January 30, 2017.

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The Court has taken the motions under submission without oral

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argument.

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See L.R. 7-15; “Order,” filed February 17, 2016.

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BACKGROUND

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Plaintiff asserted disability since December 21, 2011, based

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primarily on alleged pain (Administrative Record (“A.R.”) 46, 51-52,

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117-25, 146).

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medical record and heard testimony from Plaintiff, a medical expert

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and a vocational expert (A.R. 29-280).

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severe “osteoarthritis of the left knee,” “gunshot wound in the left

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forearm,” and “tendonitis of the left wrist” (A.R. 34).

An Administrative Law Judge (“ALJ”) reviewed the

The ALJ found Plaintiff has

The ALJ also

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found, however, that Plaintiff retains the residual functional

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capacity to perform his past relevant work, as well as other jobs

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existing in significant numbers in the national economy (A.R. 34-39).

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The ALJ deemed Plaintiff’s contrary testimony not credible (A.R. 35-

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37).

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review (A.R. 1-5, 281-95).

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state sufficient reasons for discounting Plaintiff’s credibility.

The Appeals Council considered additional evidence, but denied
Plaintiff contends that the ALJ failed to

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STANDARD OF REVIEW

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Under 42 U.S.C. section 405(g), this Court reviews the

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Administration’s decision to determine if: (1) the Administration’s

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findings are supported by substantial evidence; and (2) the

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Administration used proper legal standards.

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Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue,

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499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner

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of Social Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012).

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Substantial evidence is “such relevant evidence as a reasonable mind

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might accept as adequate to support a conclusion.”
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See Carmickle v.

Richardson v.

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Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted);

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see also Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).

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Where, as here, the Appeals Council considered additional

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evidence but denied review, the additional evidence becomes part of

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the record for purposes of the Court’s analysis.

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Commissioner, 682 F.3d at 1163 (“[W]hen the Appeals Council considers

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new evidence in deciding whether to review a decision of the ALJ, that

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evidence becomes part of the administrative record, which the district

See Brewes v.

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court must consider when reviewing the Commissioner’s final decision

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for substantial evidence.”; expressly adopting Ramirez v. Shalala, 8

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F.3d 1449, 1452 (9th Cir. 1993)); Taylor v. Commissioner, 659 F.3d

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1228, 1231 (2011) (courts may consider evidence presented for the

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first time to the Appeals Council “to determine whether, in light of

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the record as a whole, the ALJ’s decision was supported by substantial

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evidence and was free of legal error”); Penny v. Sullivan, 2 F.3d 953,

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957 n.7 (9th Cir. 1993) (“the Appeals Council considered this

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information and it became part of the record we are required to review

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as a whole”); see generally 20 C.F.R. §§ 404.970(b), 416.1470(b).

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DISCUSSION

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After consideration of the record as a whole, Defendant’s motion

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is granted and Plaintiff’s motion is denied.

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findings are supported by substantial evidence and are free from

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The Administration’s

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material1 legal error.

Plaintiff’s contrary arguments are unavailing.

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An ALJ’s assessment of a claimant’s credibility is entitled to

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“great weight.”

Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th Cir.

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1990); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985).

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here, the ALJ finds that the claimant’s medically determinable

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impairments reasonably could be expected to cause some degree of the

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alleged symptoms of which the claimant subjectively complains, any

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discounting of the claimant’s complaints must be supported by

Where, as

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specific, cogent findings.

See Berry v. Astrue, 622 F.3d 1228, 1234

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(9th Cir. 2010); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995);

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but see Smolen v. Chater, 80 F.3d 1273, 1282-84 (9th Cir. 1996)

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(indicating that ALJ must offer “specific, clear and convincing”

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reasons to reject a claimant’s testimony where there is no evidence of

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malingering).2

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specific to allow a reviewing court to conclude the ALJ rejected the

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claimant’s testimony on permissible grounds and did not arbitrarily

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discredit the claimant’s testimony.”

An ALJ’s credibility findings “must be sufficiently

See Moisa v. Barnhart, 367 F.3d

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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).
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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., Burrell v. Colvin,
775 F.3d 1133, 1136-37 (9th Cir. 2014); Chaudhry v. Astrue, 688
F.3d 661, 670, 672 n.10 (9th Cir. 2012); Molina v. Astrue, 674
F.3d 1104, 1112 (9th Cir. 2012); 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.
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882, 885 (9th Cir. 2004) (internal citations and quotations omitted);

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see also Social Security Ruling 96-7p.

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stated sufficient reasons for deeming Plaintiff’s subjective

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complaints less than fully credible.

As discussed below, the ALJ

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The ALJ accurately stated: “There is only minimal evidence of any

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actual medical treatment in this case” (A.R. 36).

An unexplained

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failure to seek medical treatment frequently, or evidence of minimal

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medical treatment, may discredit a claimant’s allegations of disabling

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symptoms.

See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005);

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Batson v. Commissioner, 359 F.3d 1190, 1196 (9th Cir. 2004); Johnson

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v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995); accord Bunnel v.

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Sullivan, 947 F.2d 341, 346 (9th Cir. 1991); Fair v. Bowen, 885 F.2d

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597, 603-604 (9th Cir. 1989).

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The ALJ also observed that Plaintiff was not then taking any

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prescription medication for his allegedly disabling pain (A.R. 36).

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During the period of claimed disability, Plaintiff reported he took

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only “Ibuprofen/Motrin 500 mg. about three times a week” (A.R. 148;

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see A.R. 46; see also A.R. 169 (“He is self treating with home

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physical therapy and Motrin”)).3

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treatment, including the taking of only over-the-counter medication,

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may properly discredit a claimant’s allegations of disabling pain.

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See, e.g., Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007),

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cert. denied, 552 U.S. 1141 (2008) (treatment with over-the-counter

A routine and conservative course of

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According to records of medical treatment in August and
September of 2014 (after the ALJ’s adverse decision), Plaintiff
was taking Naproxen at that time (A.R. 282-88).
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pain medication is “conservative treatment” sufficient to discredit a

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claimant’s testimony regarding allegedly disabling pain); Johnson v.

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Shalala, 60 F.3d at 1434 (conservative treatment can suggest a lower

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level of both pain and functional limitation, justifying adverse

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credibility determination); see also Tommasetti v. Astrue, 533 F.3d

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1035, 1040 (9th Cir. 2008) (characterizing physical therapy as

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conservative treatment).

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The ALJ also correctly stated that Plaintiff was “looking for

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work” during the period of alleged disability (A.R. 36; see A.R. 50).

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A disability claimant’s search for employment during the period of

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alleged disability can undermine the claimant’s credibility.

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Copeland v. Bowen, 861 F.2d 536, 542 (9th Cir. 1988) (upholding ALJ’s

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rejection of claimant’s credibility where claimant had accepted

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unemployment insurance benefits “apparently considering himself

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capable of work and holding himself out as available for work”); Bray

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v. Commissioner of Social Security Admin., 554 F.3d 1219, 1227 (9th

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Cir. 2009) (fact that a claimant has sought out employment weighs

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against a finding of disability); see also Ghanim v. Colvin, 763 F.3d

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1154, 1165 (9th Cir. 2014) (“continued receipt” of unemployment

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benefits can cast doubt on a claim of disability); but see Webb v.

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Barnhart, 433 F.3d 683, 688 (9th Cir. 2005) (“That Webb sought

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employment suggests no more than that he was doing his utmost, in

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spite of his health, to support himself”).

See

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Additionally, the ALJ emphasized that the objective medical

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evidence undermined any assertion that Plaintiff suffers from

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disabling symptomatology (A.R. 36-37).
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Although a claimant’s

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credibility “cannot be rejected on the sole ground that it is not

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fully corroborated by objective medical evidence, the medical evidence

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is still a relevant factor. . . .”

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853, 857 (9th Cir. 2001).

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Plaintiff’s problems have not been, and are not now, as profound as he

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has claimed.

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testified Plaintiff retains the residual functional capacity the ALJ

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found to exist (A.R. 52-54).

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observed Plaintiff had a normal gait, could stand on his heels and

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toes, sat comfortably and had no difficulty getting on and off the

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examination table (A.R. 171).

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Plaintiff retains the capacity to work (A.R. 173-74).

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the ALJ’s decision, imaging of Plaintiff’s left knee yielded normal

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results (A.R. 294).

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permanently disabled from all employment.

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F.3d 678, 680 (9th Cir. 1993) (in upholding the Administration’s

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decision, the Court emphasized: “None of the doctors who examined

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[claimant] expressed the opinion that he was totally disabled”);

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accord Curry v. Sullivan, 925 F.2d 1127, 1130 n.1 (9th Cir. 1990).

Rollins v. Massanari, 261 F.3d

Here, the medical evidence suggests

After reviewing the medical record, the medical expert

A consultative examining physician

This examining physician opined
Subsequent to

No physician of record opined Plaintiff was ever
See Matthews v. Shalala, 10

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To the extent one or more of the ALJ’s stated reasons for

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discounting Plaintiff’s credibility may have been invalid, the Court

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nevertheless would uphold the ALJ’s credibility determination under

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the circumstances presented.

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at 1162-63 (despite the invalidity of one or more of an ALJ’s stated

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reasons, a court properly may uphold the ALJ’s credibility

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determination where sufficient valid reasons have been stated).

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the present case, the ALJ stated sufficient valid reasons to allow

See Carmickle v. Commissioner, 533 F.3d

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In

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this Court to conclude that the ALJ discounted Plaintiff’s credibility

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on permissible grounds.

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Court therefore defers to the ALJ’s credibility determination.

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Lasich v. Astrue, 252 Fed. App’x 823, 825 (9th Cir. 2007) (court will

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defer to Administration’s credibility determination when the proper

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process is used and proper reasons for the decision are provided);

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accord Flaten v. Secretary of Health & Human Services, 44 F.3d 1453,

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1464 (9th Cir. 1995).4

See Moisa v. Barnhart, 367 F.3d at 885.

The
See

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CONCLUSION

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For all of the foregoing reasons,5 Plaintiff’s motion for summary

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judgment is denied and Defendant’s motion for summary judgment is

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granted.

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATED: February 8, 2017.

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/S/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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The Court does not determine herein whether Plaintiff’s
subjective complaints are credible. 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).
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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 at 88788 (discussing the standards applicable to evaluating prejudice).
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