Maria Guadalupe Inda De Arias v. Commissioner of Social Security Administration

Filing 27


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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MARIA GUADALUPE INDA DE ARIAS, 12 13 Case No. CV 16-06226 AFM Plaintiff, MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF COMMISSIONER v. 14 15 16 NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 17 18 I. 19 BACKGROUND 20 Plaintiff Maria Guadalupe Inda De Arias filed her application for disability 21 benefits under Title II of the Social Security Act on October 16, 2012, alleging 22 disability beginning May 1, 2012. After denial on initial review and on 23 reconsideration, a hearing took place before an Administrative Law Judge (ALJ) on 24 December 22, 2014, at which Plaintiff testified on her own behalf. A vocational 25 expert (“VE”) also testified. (Administrative Record (“AR”) 111-118.) In a 26 decision dated February 19, 2015, the ALJ found that Plaintiff was not disabled 27 within the meaning of the Social Security Act from May 1, 2012, through the date 28 of the decision. The Appeals Council declined to set aside the ALJ’s unfavorable 1 decision in a notice dated June 28, 2016. Plaintiff filed a Complaint herein on 2 August 18, 2016, seeking review of the Commissioner’s denial of her application 3 for benefits. In accordance with the Court’s Order Re Procedures in Social Security 4 5 Appeal, Plaintiff filed a memorandum in support of the complaint on April 14, 6 2017 (“Pl. Mem.”) and the Commissioner filed a memorandum in support of her 7 answer on April 20, 2017 (“Def. Mem.”). Plaintiff did not file a reply. This matter 8 now is ready for decision.1 II. 9 DISPUTED ISSUE 10 As reflected in the parties’ memoranda, the sole disputed issue in this case is 11 12 whether the ALJ erred in his adverse credibility finding regarding Plaintiff’s 13 testimony. 14 III. 15 STANDARD OF REVIEW Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 16 17 determine whether the Commissioner’s findings are supported by substantial 18 evidence and whether the proper legal standards were applied. See Treichler v. 19 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Substantial 20 evidence means “more than a mere scintilla” but less than a preponderance. See 21 Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d 22 1028, 1035 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a 23 reasonable mind might accept as adequate to support a conclusion.” Richardson, 24 402 U.S. at 401. This Court must review the record as a whole, weighing both the 25 evidence that supports and the evidence that detracts from the Commissioner’s 26 27 28 1 The decision in this case is being made based on the pleadings, the administrative record, and the parties’ memoranda in support of their pleadings. 2 1 conclusion. Lingenfelter, 504 F.3d at 1035. Where evidence is susceptible of more 2 than one rational interpretation, the Commissioner’s decision must be upheld. See 3 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 4 IV. 5 FIVE-STEP EVALUATION PROCESS 6 The Commissioner (or ALJ) follows a five-step sequential evaluation process 7 in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; 8 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995), as amended April 9, 1996. 9 In the first step, the Commissioner must determine whether the claimant is 10 currently engaged in substantial gainful activity; if so, the claimant is not disabled 11 and the claim is denied. Id. If the claimant is not currently engaged in substantial 12 gainful activity, the second step requires the Commissioner to determine whether 13 the claimant has a “severe” impairment or combination of impairments significantly 14 limiting his ability to do basic work activities; if not, a finding of nondisability is 15 made and the claim is denied. Id. If the claimant has a “severe” impairment or 16 combination of impairments, the third step requires the Commissioner to determine 17 whether the impairment or combination of impairments meets or equals an 18 impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. part 19 404, subpart P, appendix 1; if so, disability is conclusively presumed and benefits 20 are awarded. Id. If the claimant’s impairment or combination of impairments does 21 not meet or equal an impairment in the Listing, the fourth step requires the 22 Commissioner to determine whether the claimant has sufficient “residual functional 23 capacity” to perform his past work; if so, the claimant is not disabled and the claim 24 is denied. Id. The claimant has the burden of proving that he is unable to perform 25 past relevant work. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). If the 26 claimant meets this burden, a prima facie case of disability is established. Id. The 27 Commissioner then bears the burden of establishing that the claimant is not 28 disabled, because he can perform other substantial gainful work available in the 3 1 national economy. Id. The determination of this issue comprises the fifth and final 2 step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 3 828 n.5; Drouin, 966 F.2d at 1257. 4 V. 5 THE ALJ’S APPLICATION OF THE FIVE-STEP PROCESS 6 At step one, the ALJ found that Plaintiff had not engaged in substantial 7 gainful activity since May 1, 2012, the alleged onset date. (AR 13.) At step two, 8 the ALJ found that Plaintiff had the following severe impairments: arthritis; 9 degenerative disc disease; fibromyalgia; obesity; history of hyperthyroidism; and 10 bilateral plantar fasciitis. (Id.) At step three, the ALJ found that Plaintiff did not 11 have an impairment or combination of impairments that meets or medically equals 12 the severity of one of the listed impairments. (AR 16.) At step four, the ALJ found 13 that Plaintiff had the following residual functional capacity (RFC) to perform 14 sedentary work except: occasionally climb stairs, climb ladders/ropes/scaffolds, 15 kneel, crouch, crawl, stoop; frequently but not constantly balance; no uneven 16 ground. (Id.) The ALJ determined that Plaintiff is capable of performing her past 17 relevant work as a customer service representative. (AR 17.) Accordingly, the ALJ 18 concluded that Plaintiff was not disabled under the Social Security Act since 19 May 1, 2012 through the date of the decision. (AR 17-18.) 20 VI. 21 DISCUSSION 22 Plaintiff alleges disability based on fibromyalgia, and pain in her back, hip, 23 shoulder and extremity. (AR 47-56.) Plaintiff contends that the ALJ erred in his 24 adverse credibility finding. Her testimony during the administrative hearing can be 25 found at AR 33-120. 26 An ALJ’s assessment of pain severity and claimant credibility is entitled to 27 “great weight.” Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989). Where the 28 claimant has produced objective medical evidence of an impairment that could 4 1 reasonably be expected to produce some degree of pain and/or other symptoms and 2 where the record is devoid of any affirmative evidence of malingering, the ALJ 3 may reject the claimant’s testimony regarding the severity of the claimant’s pain 4 and/or other symptoms only if the ALJ makes specific findings stating clear and 5 convincing reasons for doing so. See Cotton v. Bowen, 799 F.2d 1403, 1407 (9th 6 Cir. 1986); see also Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). 7 The ALJ found that the Plaintiff’s statements about the intensity, persistence 8 and limiting effects of her symptoms were not entirely credible and provided three 9 reasons in support of that finding. (AR 16.) 10 First, the ALJ found that Plaintiff did not consistently follow through with 11 instructions to attend pain management treatment, increase physical activity, 12 continue physical therapy, and see a psychiatrist. (AR 17.) The ALJ stated that 13 Plaintiff’s failure to seek medical treatment suggested that her pain was not so 14 severe as to prevent all work. (Id.) The record shows that the Plaintiff quit pain 15 management treatment (AR 69), did not consistently follow instructions to increase 16 physical exercise (AR 360, 445, 491, 507, 685, 723), was discharged from physical 17 therapy because of failure to attend (AR 838), and chose to do self-therapy (AR 18 76). Although Plaintiff suggests that her failure to seek treatment was due to 19 financial limitations, the medical record indicates that this was only in relation to 20 acupuncture and aqua therapy. (AR 652, 704, 709, 769.) There was no evidence in 21 the record that financial limitations prevented her from following through on other 22 areas of treatment. If the evidence of Plaintiff’s failure to seek medical treatment 23 could be subject to more than one interpretation, the ALJ’s interpretation must be 24 upheld if that interpretation is rational, as it is here. See Burch v. Barnhart, 400 25 F.3d 676, 680-81 (9th Cir. 2005). Thus, the ALJ’s finding that Plaintiff failed to 26 seek treatment was supported by substantial evidence, and provides a valid basis for 27 discounting Plaintiff’s subjective symptom testimony. See Tommasetti v. Astrue, 28 533 F.3d 1035, 1039 (9th Cir. 2008) (ALJ may consider failure to follow a 5 1 prescribed course of treatment in weighing a claimant’s credibility); Smolen, 80 2 F.3d at 1284; Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). 3 As a second reason, the ALJ stated that the Plaintiff’s daily activities are not 4 limited to the extent a person would expect given her complaints of disabling 5 symptoms and limitations. (AR 17.) On one hand, Plaintiff testified that on a scale 6 of one to ten, ten being the worst, she experienced a constant pain of eight for her 7 back, a periodic pain of nine for her fibromyalgia, and a pain of eight or nine when 8 walking. (AR 46, 48, 50.) Plaintiff also testified that due to the severity of her 9 pain, her physical activity was extremely limited. For example: she can go on 10 walks but no more than a block at a time (AR 67); can sit, stand or walk for no 11 more than five to fifteen minutes (AR 71); has trouble holding a plate or a cup of 12 coffee; cannot dress herself (AR 95); and takes hours to make her bed (AR 99). On 13 the other hand, evidence in the record concerning daily activities also reflects that 14 Plaintiff is more physically able and her pain is not as severe as she suggests. 15 Plaintiff is able to drive (AR 95), cook (AR 96), grocery shop (AR 99), take the 16 garbage out (AR 100), and was able to travel to Mexico (AR 1002). Thus, 17 substantial evidence supports the ALJ’s finding that certain of Plaintiff’s daily 18 activities were inconsistent with her subjective symptom testimony. This is a clear 19 and convincing reason for discrediting Plaintiff’s testimony. See Molina v. Astrue, 20 674 F.3d 1104, 1112 (9th Cir. 2012) (ALJ may discredit claimant’s testimony when 21 “claimant engages in daily activities inconsistent with the alleged symptoms”); see 22 also Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) 23 (ALJ properly discounted claimant’s testimony because “she leads an active 24 lifestyle, including cleaning, cooking, walking her dogs, and driving to 25 appointments”). 26 As a final reason, the ALJ found that Plaintiff’s subjective testimony was not 27 substantiated by objective medical evidence in the record. (AR 13-15.) Although 28 this may not be the sole reason to support an adverse credibility finding, “it is a 6 1 factor that the ALJ can consider in his credibility analysis.” Burch, supra, 400 F.3d 2 at 681; Morgan v. Comm’r of Social Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) 3 (ALJ may properly consider conflict between claimant’s testimony of subjective 4 complaints and objective medical evidence in the record); see also Tidwell v. Apfel, 5 161 F.3d 599, 602 (9th Cir. 1999) (ALJ may properly rely on weak objective 6 support for the claimant’s subjective complaints); Orteza v. Shalala, 50 F.3d 748, 7 750 (9th Cir. 1995) (ALJ may properly rely on lack of objective evidence to support 8 claimant’s subjective complaints). In the present case, the ALJ’s assessment of the 9 objective medical evidence was supported by substantial evidence and was not in 10 error as part of the adverse credibility determination. Accordingly, the Court 11 concludes that the ALJ did not err in his adverse credibility determination. ******************* 12 13 14 IT THEREFORE IS ORDERED that Judgment be entered be entered affirming the decision of the Commissioner of Social Security Administration. 15 16 17 18 19 DATED: June 28, 2017 ____________________________________ ALEXANDER F. MacKINNON UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 7

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