Alice M. Gunter v. Carolyn W. Colvin

Filing 20

MEMORANDUM OPINION by Magistrate Judge Alka Sagar. The decision of the Commissioner is AFFIRMED. (See document for complete details) (afe)

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT

10

CENTRAL DISTRICT OF CALIFORNIA

11

ALICE M. GUNTER,
12

Plaintiff,
13
14
15

v.
NANCY A. BERRYHILL,1
Acting Commissioner of Social
Security,

16

Defendant.

17

) No. CV 16-07527-AS
)
) MEMORANDUM OPINION
)
)
)
)
)
)
)
)
)

18

PROCEEDINGS

19
20
21

On October 7, 2016, Plaintiff Alice M. Gunter (“Plaintiff”)

22

filed a Complaint seeking review of the Commissioner’s denial of

23

Plaintiff’s application for Social Security period of disability,

24

Disability

25

disability benefits.

Insurance

Benefits

and

Supplemental

(Docket Entry No. 1).

Security

Income

On February 28, 2017,

26
27
28

1

Nancy A. Berryhill is now the Acting Commissioner of Social
Security and is substituted for Acting Commissioner Carolyn W.
Colvin in this case. See Fed. R. Civ. P. 25(d).
1

1

Defendant filed an Answer to the Complaint along with the Certified

2

Administrative

3

parties have consented to proceed before a United States Magistrate

4

Judge.

5

Stipulation (“Joint Stip.”) on July 5, 2017, setting forth their

6

respective positions on Plaintiff’s claims.

Record

(“AR”).

(Docket

(Docket Entry Nos. 11, 12).

Entry

Nos.

15-16).

The

The parties filed a Joint

(Docket Entry No. 19).

7

SUMMARY OF ADMINISTRATIVE DECISION

8
9
10

On October 22, 2012, Plaintiff, formerly employed as a retail

11

sales clerk, security guard, bank teller, assistant manager, and

12

waitress, (AR 61-64, 235), filed an application for Social Security

13

Disability benefits, alleging disability beginning on December 1,

14

2009.

15

(“ALJ”) Sally Reason held a hearing.

16

obtain additional evidence as well as expert witness testimony, the

17

hearing was postponed.

(Id.).

18

scheduled

which

19

medical expert (“ME”) Dr. Herbert Tanenhaus, and vocational expert

20

(“VE”) Gail Maron.

21

Plaintiff,

22

January

23

Plaintiff’s application.

(AR 78-79).

hearing,

1,

through
2012.

On January 23, 2015, Administrative Law Judge

at

(AR

58).

However, in order to

On May 11, 2015, the ALJ held a reshe

heard testimony from Plaintiff,

(AR 41-76).
counsel,

(AR 18).

At the administrative hearing,

amended
On

the

May

26,

alleged
2015,

onset
the

date

ALJ

to

denied

(AR 15-36).

24

The ALJ applied the five-step process in evaluating Plaintiff’s

25
26

case.

At step one, the ALJ found that Plaintiff met the insured

27

status requirements of the Act on December 31, 2014 and had not

28

engaged in substantial gainful activity from the amended onset date
2

1

of January 1, 2012 through her date last insured of December 31,

2

2014.

3

following

4

(PTSD)2;

5

obesity.

6

Plaintiff’s impairments did not meet or equal a Listing found in 20

7

C.F.R. Part 404, Subpart P, Appendix 1.

(AR 20).

At step two, the ALJ found that Plaintiff had the

severe

impairments:

Post

anxiety;

depression;

right

(AR

21).

At

step

Traumatic
knee

three,

Stress

Disorder

osteoarthritis;

the

ALJ

determined

and
that

(AR 23).

8

The ALJ then found that Plaintiff had the residual functional

9
10

capacity

(“RFC”)

to

perform

medium

work

as

defined

in

20

CFR

11

404.1567(c) except she can sustain posturals frequently (but not

12

constantly); and she can tolerate occasional interaction with the

13

public, co-workers, and supervisors.

(AR 25).

14
15

In arriving at her conclusion, the ALJ found that Plaintiff’s

16

medically determinable impairments could reasonably be expected to

17

cause

18

concerning the intensity, persistence and limiting effects of these

19

symptoms are not entirely credible.

the

alleged

symptoms;

however,

Plaintiff’s

statements

(AR 27).

20

At

21

step

four,

the

ALJ

determined

that

could

not

22

perform any past relevant work.

23

found that through the date last insured, considering Plaintiff’s

24

age,

education,

work

(AR 34).

Plaintiff

experience,

and

RFC,

At step five, the ALJ

there

were

jobs

that

25
26
27
28

2

The ALJ noted that Plaintiff’s history “was significant for
military sexual trauma, of being raped at Navy boot camp in 1998.”
(AR 32).
3

1

existed

in

significant

numbers

in

2

Plaintiff could perform.

the

national

economy

that

(AR 35).

3

STANDARD OF REVIEW

4
5
6

This court reviews the Administration’s decision to determine

7

if it is free of legal error and supported by substantial evidence.

8

See Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th

9

Cir. 2012).

“Substantial evidence” is more than a mere scintilla,

10

but less than a preponderance.

11

1009 (9th Cir. 2014).

12

supports a finding, “a court must consider the record as a whole,

13

weighing both evidence that supports and evidence that detracts from

14

the [Commissioner’s] conclusion.”

15

1033, 1035 (9th Cir. 2001).

16

reasonably

17

conclusion, [a court] may not substitute [its] judgment for that of

18

the ALJ.”

19

2006).

support

Garrison v. Colvin, 759 F.3d 995,

To determine whether substantial evidence

either

Aukland v. Massanari, 257 F.3d

As a result, “[i]f the evidence can
affirming

or

reversing

the

ALJ’s

Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir.

20

PLAINTIFF’S CONTENTIONS

21
22
23

Plaintiff alleges that the ALJ (1) failed to fully and fairly

24

develop

the

record;

and

(2)

erred

25

limited activities of daily living demonstrate that her symptoms are

26

not severe enough to be considered disabling.

27

12-14).

28
4

in

holding

that

Plaintiff’s

(Joint Stip. at 3,

DISCUSSION

1
2

After

3

reviewing

the

record,

the

Court

finds

that

the

4

Commissioner’s findings are supported by substantial evidence and

5

are free from material legal error.3

6
7

A.

Plaintiff’s

Newly

Submitted

Evidence

Does

Not

Undermine

The

Substantial Evidence Supporting The ALJ’s Decision

8
9
10

Plaintiff alleges that, by closing the record before additional

11

evidence was submitted, the ALJ failed to properly discharge her

12

duty to fully and fairly develop the record.

13

Specifically,

14

before Plaintiff submitted her United States Department of Veteran

15

Affairs (“VA”)4 disability determination, consideration of which “may

16

well have resulted in a different outcome in this case.”

17

Stip. at 5).

18

not

19

findings.

Plaintiff

contends

that

the

(Joint Stip. at 3-6).
ALJ

closed

the

record

(Joint

Defendant counters that the VA rating decision does

undermine

the

substantial

(Joint Stip. at 12).

evidence

supporting

the

ALJ’s

The Court agrees.

20

“The ALJ always has a ‘special duty to fully and fairly develop

21
22

the

23

considered.’”

24
25
26

record

and

to

Celaya

assure
v.

that

Halter,

the
332

claimant’s
F.3d

1177,

3

1183

(9th

are
Cir.

The
harmless
error
rule
applies
to
the
review
of
administrative decisions regarding disability.
See McLeod v.
Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400
F.3d 676, 679 (9th Cir. 2005) (an ALJ’s decision will not be
reversed for errors that are harmless).

27
28

interests

4

Plaintiff is a veteran of the Navy. (AR 30).
5

1

2003); see also Garcia v. Comm’r of Soc. Sec., 768 F3d 925, 931 (9th

2

Cir. 2014) (finding that ALJ’s duty to develop the record included

3

ordering a complete set of IQ scores for claimant with intellectual

4

disability); but see McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir.

5

2011) (even if ALJ failed to develop record, claimant must still

6

show prejudice).

7

Plaintiff contends that the ALJ “explicitly acknowledged that

8
9

Plaintiff’s

VA

disability

determination

–

a

vital

document

that

10

would have been accorded ‘great weight’ [] – was missing from the

11

record at the time of the decision.”

12

this, Plaintiff argues, the “ALJ’s decision gives no indication that

13

she made any efforts whatsoever to obtain these highly probative

14

records.”

(Joint Stip. at 5).

Despite

(Joint Stip. at 5).

15
16

Defendant counters that the ALJ fulfilled her duty to develop
17

the record when she indicated to Plaintiff’s counsel that she wanted
18

more information regarding the VA rating decision and then offered
19

Plaintiff’s counsel the opportunity to submit such evidence.

(Joint

20

Stip.

at

8).

Defendant

points

out

that

“Plaintiff’s

counsel

21

neglected to timely obtain evidence from the VA, and also neglected
22

to inform the ALJ if they needed more time to pursue this evidence.
23

The ALJ, by contrast, made no error by closing the record.”

(Id.).

24

Defendant also contends that, considering the record as a whole, the
25

new

evidence

that

Plaintiff

ultimately

submitted

to

the

Appeals

26

Council

(which

the

ALJ

determined

was

duplicative

of

material

27

already in the record) does not undermine the substantial evidence
28
6

1

supporting the ALJ’s decision.5

2

agrees.

(Joint Stip. at 9).

The Court

3

The

4

ALJ

recognized

the

need

to

consider

any

VA

disability

5

rating and did so.

6

must

7

disability, “[t]hat is not to say that the VA rating is conclusive.

8

[The

9

criteria

ordinarily

Ninth

give

Circuit

for

While the ALJ must consider the VA’s finding and
great

has]

weight

to

commented

determining

the

that

disability

are

VA’s

determination

‘because
not

the

VA

identical,’

of

and

SSA

[]

the

10

record may establish adequate reason for giving the VA rating less

11

weight.

12

than

13

disability rating might cut against rather than in favor of an SSA

14

determination

15

work of any kind.”

16

omitted).

17

because no information was provided regarding what the rating was

18

based upon.

19

explain the evidence considered [] in the VA’s determination of the

20

claimant’s

a

In some circumstances, the VA may assign a partial rather
total

disability

that

the

rating

to

individual

a

veteran,

could

not

[]

and

perform

a

partial

remunerative

McLeod, 640 F.3d at 886. (internal citations

Moreover, the ALJ was unable to consider the VA rating

The ALJ stated that the document submitted “does not

disability

award.

The

undersigned

therefore

cannot

21
5

22
23
24
25
26
27

The ALJ stated that “subsequent to the claimant’s May 11,
2015 hearing, the claimant was afforded the opportunity to obtain
and submit a complete copy of the VA disability determination [].
The documents received, however, did not include the requested
complete VA determination, only a summary of the findings
(essentially duplicative of documentation already in evidence): it
indicates the claimant continues to receive an 80% service-connected
disability benefit from the VA, in the amount of $3,015.22.
She
receives a higher monthly amount because she is considered
unemployable.
She is considered totally and permanently disabled,
as a result of her service-connected disability.” (AR 28).

28
7

1

establish whether the same medical and other medical evidence, used

2

by the VA, is in evidence in the current disability determination

3

exhibit file.”

(AR 28).

4

As Defendant correctly points out, the VA’s determination of

5
6

Plaintiff’s

partial

disability

was

7

2012.

8

Plaintiff alleged disability beginning on January 1, 2012.

9

In

(Joint Stip. at 10, AR 617).

evaluating

Plaintiff’s

claim,

based

on

records

through

May

At the May 11, 2015 hearing,

however,

the

ALJ

(AR 58).
considered

10

significant evidence to which the VA did not have access, including

11

Plaintiff’s statements to SSA and her testimony at the hearing in

12

May 2015 (AR 26-27), treatment evidence from 2010 through 2015 (AR

13

21-23), opinions from three different consultative examinations (AR

14

30-33), and the testimony of a medical expert in 2015.

15

Since the VA’s determination regarding Plaintiff’s disability relied

16

on limited evidence -- all dated prior to May 2012 -- the ALJ’s

17

decision to give less weight to the VA rating was reasonable, given

18

the substantial evidence in the record that supported the ALJ’s

19

decision

20

Therefore, even if the ALJ kept the record open until this evidence

21

was submitted, it would not have altered her ultimate decision to

22

deny benefits.

23

to obtaining the VA disability determination was harmless.

to

deny

Plaintiff’s

application

for

(AR 33-34).

SSA

benefits.

The ALJ’S error, if any, in closing the record prior

24
25

\\
26

\\
27

\\
28
8

1

B.

The

ALJ

Properly

Evaluated

Plaintiff’s

Activities

Of

Daily

Living

2
3

Plaintiff

4

contends

that

the

ALJ

erred

in

holding

that

her

5

limited activities of daily living demonstrate that her symptoms are

6

not severe enough to be considered disabling.

7

14).

8

activities of daily living.

9

agrees.

(Joint Stip. at 12-

Defendant counters that the ALJ properly evaluated Plaintiff’s
(Joint Stip. at 14-16).

The Court

10
11

The

ALJ
of

found

Plaintiff

living.

finding,

her

the

ALJ

14

activity

15

functional limitations.

(AR 28-29).

so

in

evaluated the entire record and determined that Plaintiff’s level of
her

In

restrictions

13

with

24).

mild

activities

inconsistent

(AR

has

12

was

daily

that

allegations

regarding

her

The ALJ stated:

16
17
18
19
20
21

[d]espite the [plaintiff’s] repeated reports that she does
‘no’ household chores, to the consulting sources, she
reported driving by herself to the exams, shopping, running
errands, cooking, and doing other daily tasks without
assistance.
As discussed below, with regard to her
credibility, to her providers at the VA, the [plaintiff]
has admitted working at the Renaissance Fair, going to
Disneyland, and attending cosmetology school.
In this
domain, she is therefore assessed a mild limitation.

22
23

(AR 24).

24
25
26
27

As the ALJ noted, Plaintiff admitted, in her reports to the
State Agency,

that she was able to leave the house by herself, as

well as drive, and socialize with others about every two weeks.

28
9

(AR

1

28).

However,

Plaintiff

also

complained

that

2

accompanied when she left the house.

3

Plaintiff reported that she could not be around people, complained

4

of panic attacks, and spent most of her day at home.

5

However, Plaintiff had reported to her VA provider in March 2012

6

that she would be “working” at the Renaissance Fair throughout May,

7

(id.), and

8

attended cosmetology classes and had gone to Disneyland the day

9

before her office visit.

(Id.).

she

needed

to

be

In January 2013,

(AR 29).

VA records from September 2012 indicate that Plaintiff

(Id.).

The ALJ also noted that, in April

10

2014, Plaintiff again admitted to working at the Renaissance Fair,

11

(id.),

12

Disneyland once a week.

and

in

October

2014,

Plaintiff

admitted

to

going

(Id.).

13
14

The ALJ stated that:

15
16
17
18
19
20
21
22
23

[w]hile, as a matter of law, it is not necessary for an
individual to prove she is ‘bedridden’ to establish
eligibility for benefits, in the present case, the
[plaintiff] has repeatedly alleged she has ‘no social
life,’ she cannot be around people, she cannot control her
anger, she virtually never leaves her home, and she is
isolative and vegetative. In 2014, she alleged her
condition worsened significantly – that she only got out of
bed to take her daughter to/from school. These allegations
are not consistent with her admissions to her treating
sources at the VA. To date, there has been an insufficient
offer of proof to clarify these inconsistencies; and for
these reasons, the [plaintiff] is less than entirely
credible.

24
25

(AR 29-30).

26
27
28
10

to

1

Plaintiff asserts that the ALJ contravened “established legal

2

precedent by penalizing Plaintiff for her attempts to lead as normal

3

a life as possible in the face of her numerous severe impairments.”

4

(Joint Stip. at 13).

5

found

6

credibility and that the record demonstrated that she was capable of

7

doing more than she alleged.

8

thorough review of the entire record, that Plaintiff has only mild

9

restrictions in activities of daily living.

that

The Court disagrees.

Plaintiff’s

inconsistent

The ALJ appropriately

accounts

undermined

her

The ALJ properly concluded, based on a

10
11

The

Ninth

Circuit

has

made

clear

that

when

a

plaintiff’s

12

reports about her activities of daily living are subject to more

13

than one interpretation, the ALJ's interpretation is entitled to

14

deference

15

Massinari, 261 F.3d 853, 857 (9th Cir. 2001)(“It is true that [the

16

plaintiff's] testimony was somewhat equivocal about how regularly

17

she was able to keep up with all of these activities, and the ALJ's

18

interpretation of her testimony may not be the only reasonable one.

19

But it is still a reasonable interpretation and is supported by

20

substantial

21

it.”).

as

long

as

evidence;

it

is

thus,

it

reasonable.

is

not

See,

our

e.g.,

role

to

Rollins

v.

second-guess

22
23

On this record, the Court finds the ALJ's interpretation of

24

Plaintiff's activities of daily living was reasonable and supported

25

by the evidence. Therefore, the Court finds that the ALJ did not

26

improperly evaluate Plaintiff's activities of daily living.

27
28
11

1
2

Accordingly, the ALJ's findings are free of legal error and
will not be disturbed.

3

CONCLUSION

4
5
6
7

For the foregoing reasons, the decision of the Commissioner is
AFFIRMED.

8
9

LET JUDGMENT BE ENTERED ACCORDINGLY.

10
11

Dated: August 21, 2017

12
13
14
15

_____________/s/______________
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

16
17
18
19
20
21
22
23
24
25
26
27
28
12