Sheryl D. Maldonado v. Carolyn W. Colvin

Filing 16

MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner. (See Order for complete details) (afe)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SHERYL D. MALDONADO,

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No. EDCV 13-01062 SS

Plaintiff,
v.

MEMORANDUM DECISION AND ORDER

CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.

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I.

21

INTRODUCTION

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23

Plaintiff Sheryl D. Maldonado (“Plaintiff”) seeks review of

24

the final decision of the Commissioner of the Social Security

25

Administration (the “Commissioner” or the “Agency”) denying her

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application for Disability Insurance Benefits and Supplemental

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Security Income.

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§ 636(c), to the jurisdiction of the undersigned United States

The parties consented, pursuant to 28 U.S.C.

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Magistrate Judge.

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the Commissioner is AFFIRMED.

For the reasons stated below, the decision of

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4

II.

5

PROCEDURAL HISTORY

6
7

Plaintiff

filed

applications

for

Title

II

Disability

8

Insurance Benefits (“DIB”) and Title XVI Supplemental Security

9

Income (“SSI”) on April 23, 2010.

(Administrative Record (“AR”)

10

137, 139).

In both applications, Plaintiff alleged a disability

11

onset date of December 31, 2004.

(Id.).

12

Plaintiff’s

16,

13

February 4, 2011, upon reconsideration, the Agency again denied

14

Plaintiff’s applications.

15

Plaintiff requested a hearing before an Administrative Law Judge

16

(“ALJ”).

17

hearing held before ALJ Joseph Lisiecki on October 11, 2011.

18

45).

19

medical expert, testified at the hearing.

20

November 22, 2011, the ALJ issued a decision denying Plaintiff

21

DIB and SSI.

applications

(AR

106).

on

August

2010.

(AR 95, 100).

Plaintiff

The Agency denied

appeared

(AR

88).

On

On April 6, 2011,

and

testified

at

a

(AR

Ronald Hatakeyama, a vocational expert, and Craig Rath, a
(AR 46, 49, 63).

On

(AR 9).

22
23

Plaintiff requested review of the ALJ’s decision, which the

24

Appeals Council denied on May 6, 2013.

25

filed this action on June 21, 2013.

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(AR 1-4).

Plaintiff

1

III.

2

FACTUAL BACKGROUND

3
4

Plaintiff was born on June 29, 1956.

(AR 20).

Plaintiff

5

was forty-eight years old at the time of her alleged disability

6

onset date.

7

speaks, writes, reads and understands English.

8

Plaintiff previously worked as a sandwich maker and a cashier.

9

(AR

164,

(Id.).

210).

10

depression,

11

anxiety.

She has an eleventh-grade education and

Plaintiff

panic

disorder,

alleges
anxiety,

that

(AR 161, 163).

she

suffers

agoraphobia

and

from
social

(AR 162).

12
13

A.

Medical Records Of Treating Physicians

14
15

Plaintiff

a

psychiatrist
in

the

California, beginning June 15, 2004.1

18

During her initial assessment, the doctor noted that Plaintiff

19

suffered from symptoms of depression and anxiety.2

20

Plaintiff asserted that she suffered abuse in her marriage, but

21

acknowledged that she had been divorced for nine years prior to

22

the date she sought treatment at Riverside.

23

Plaintiff was unemployed for a year, but had previously worked as

24

1

28

(“Riverside”)

at

17

27

Health

from

Department

26

Mental

treatment

16

25

of

received

Riverside,

(AR 251-343, 360-384).

(AR 330).

(AR 308, 330).

Plaintiff received treatment in this facility with different
doctors, including Dr. A. Dia. Some of the doctors’ names,
however, are unidentifiable due to illegible signatures.
2

Plaintiff divorced her husband approximately nine years before
beginning treatment at Riverside.
(AR 308).
Plaintiff began
taking various medications, including Prozac and Xanax, a year
before the divorce. (Id.).
3

1

a cashier.

2

energy and felt worthless.

3

diagnosed

4

Plaintiff “abus[ed] speed once a [month], as well as Xanax which

5

she [stole] from [her] daughter.”

6

2004 appointment, she informed the doctor that she was “applying

7

for SSI.”

(AR 308)

Plaintiff

Plaintiff lacked motivation, displayed poor

with

(Id.).

Additionally, the doctor

“amphetamine

abuse,”

(AR 307).

noting

that

At her August 9,

(AR 308).

8
9

Plaintiff did not show for her next appointment on June 22,

10

2004.

(AR 308).

11

Plaintiff

12

277, 283, 298, 300-301, 303-304, 308).

13

for appointments on June 22, 2004; October 19, 2004; April 29,

14

2005; June 16, 2005; October 24, 2005; February 11, 2008; July

15

23, 2008 and October 14, 2008.

16

303, 308).

17

October 5, 2004; October 20, 2004 and January 7, 2005.

18

304).

missed

Between June 22, 2004 and October 14, 2008,
approximately

eleven

appointments.

(AR 273,

Plaintiff failed to show

(AR 273, 277, 283, 298, 300-301,

Additionally, Plaintiff cancelled appointments on
(AR 303-

19
20

On

September

21,

2004,

Plaintiff

complained

about

her

21

medication, Zoloft, but reported no side effects.3

22

Furthermore, although her mood initially improved, she remained

23

depressed.

(Id.).

Plaintiff

claimed

that

she

was

(AR 305).

“sleeping

24
25
26
27
28

3

According to Plaintiff, she took Zoloft to treat her anxiety
and depression.
(AR 226).
Zoloft is approved by the FDA to
treat depression, obsessive compulsive disorder, panic disorder,
post-traumatic stress disorder and pediatric obsessive compulsive
disorder.
Motus v. Pfizer Inc., F. Supp. 2d 1085, 1089 (C.D.
Cal. 2000).
4

1

better” and panic attacks were “getting better” with an average

2

of one per week.4

(Id.).

3
4

On

September

22,

Plaintiff

received

individual

5

therapy.

6

that she started having panic attacks “about three years ago,”

7

which affected her job as a cashier.

8

agoraphobia and “didn’t like leaving her residence.”

9

The doctor noted that Plaintiff “may still be using speed on a

10

(AR 304-05).

2004,

During that session, Plaintiff explained

(Id.).

Plaintiff developed

monthly basis and taking Xanax from her daughter.”

(AR 304).

(Id.).

11
12

Plaintiff missed her next four appointments, delaying her

13

next meeting until February 17, 2005.

14

reporting “anxiety and feeling on verge of panic,” Plaintiff’s

15

depression was “not bad” and she ate and slept well.

(AR 302).

16

On March 31, 2005, Plaintiff felt “pretty good.”

(AR 301).

17

Plaintiff

18

approximately

19

appointments in April and June.

had

“occasional”
once

a

anger

week.

(AR 302-304).

outbursts

panic

attacks

Plaintiff

(Id.).

and

Despite

missed

(AR 300-301).

20
21

On July 29, 2005, the doctor noted that Plaintiff had not

22

visited

for

four

months.

(AR

300).

Plaintiff

experienced

23

increased anxiety after running out of medication “about three

24

weeks ago,” but felt no further panic attacks and remained sober.

25

(Id.).

Plaintiff “support[ed] [her]self on alimony.”

(Id.).

26
27
28

4

Previously, on August 9, 2004, Plaintiff complained of
suffering panic attacks approximately three times a week.
(AR
308).
5

1

Similarly, on September 12, 2005, Plaintiff reported experiencing

2

“occasional” anger and anxiety, but no panic attacks.

3

Plaintiff continued to “eat[] and sleep[] well.”

(AR 299).

(Id.).

4
5

On March 13, 2006, after a six month break in treatment,

6

Plaintiff

reported

feeling

anxious

and

depressed

7

brother’s death due to an accidental drug overdose.

8

On June 5, 2006, however, Plaintiff stated “’I’m actually doing

9

well’” and voiced “no complaints.”

(AR 297).

after

her

(AR 298).

Plaintiff ate and

10

slept well, and kept active doing yard work and taking walks.

11

(Id.).

12
13

Plaintiff continued to report improvement between June 5,

14

2006

and

March

15

Specifically, on September 8, 2006, Plaintiff stated she felt “a

16

lot better...more energetic and motivated.”

17

did not look for a job, however, and supported herself on $500.00

18

monthly

19

Plaintiff

20

reasonably well...and keeping active.”

alimony.

5,

2008.

(Id.).

experienced

(AR

282,

288,

Similarly,

“occasional”

291,

293,

(AR 296).

on

November

anxiety

but

296-297).

Plaintiff

30,

was

2006

“doing

(AR 295).

21
22

Plaintiff further “voiced no complaints” and reported doing

23

well, keeping active and eating and sleeping well on February 22,

24

2007, May 22, 2007 and August 27, 2007.

25

Plaintiff “was upset [ . . . ] ex husband trying to cut off

26

alimony and court wants her to work.”

27

2007, Plaintiff felt stressed because her landlord refused to

28

renew her lease, but otherwise she was “doing pretty good” and
6

(AR 291, 293-294).

(AR 294).

On November 19,

1

still looking for a job.

2

was

3

landlord extended her lease.

“doing

well,”

and

(AR 288).
still

On March 5, 2008, Plaintiff

living

in

her

house

since

her

(AR 282).

4
5

On May 28, 2008, Plaintiff stated that she started feeling

6

“self-conscious, anxious and sad for no clear reason.”

7

Plaintiff failed to show for her next appointment on July 23,

8

2008, however, and on August 18, 2008 stated, “I am feeling much

9

better.”

(AR

10

complained

of

11

episodes two days earlier.

275,
severe

277).

On

anxiety

August

attacks,

20,
but

(AR 280).

2008,

Plaintiff

reported

no

such

(AR 274).

12
13

Plaintiff did not attend her next appointment on October 14,

14

2008.

(AR

273).

On

October

21,

2008,

she

“re-started

15

experiencing panic attacks after about [four years] of panic free

16

period.”

(AR 272).

17
18

Between

November

18,

2008

and

May

17,

(AR 256, 269, 270).

2010

Plaintiff

19

continued to improve.

20

November 18, 2008 Plaintiff felt “better, much less anxious, and

21

[had zero] panic attacks.”

22

Plaintiff stated, “’everything is good,’ no further panic [and

23

occasional] anxiety.”

24

had just returned from a trip to Texas and reported “doing ok.”

25

(AR 266).

26

exhibited a neutral mood, normal thought process and no side

27

effects from medication on April 30, 2009, February 22, 2010 and

28

May 17, 2010.

(AR 270).

(AR 269).

Specifically, on

On January 13, 2009,

On March 17, 2009, Plaintiff

Plaintiff similarly stated she was “doing well” and

(AR 256-258).
7

1

On

March

10,

2011,

Plaintiff’s

“depression

[was]

but

2

fatigue and low motivation persist[ed].”

3

2011, Plaintiff asked a nurse for additional medications because

4

she “got hysterical” after receiving a three-day notice to move

5

out of her house.

6

extra Xanax “when [she] needed to” but could not remember how

7

many extra.

(AR 365).

(AR 366).

ok

On March 28,

Plaintiff reported that she took

(Id.).

8
9

A

Narrative

Report

dated

May

12,

2011

indicated

that

10

Plaintiff visited Riverside County Mental Health from June 15,

11

2004 to March 10, 2011.

12

Report, Plaintiff suffered from recurrent major depression, panic

13

disorder and agoraphobia.

14

insomnia,

15

(Id.).

16

According

17

sustained level of concentration, engage in repetitive tasks for

18

an extended period or adapt to new and stressful situations.

19

(Id.).

20

week without decompensating.

21

manage her own funds.

22

positive

23

which she had not yet been treated for.

24

hypothesized

25

depression and anxiety.”

26

Plaintiff’s use of “speed” or Xanax from her daughter.

27

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phobias,

(AR 384).

According to the Narrative

(Id.).

depression,

Plaintiff had evidence of

anxiety

and

panic

episodes.

Plaintiff’s prognosis was chronic and guarded.
to

this

report,

Plaintiff

could

not

(Id.).

maintain

a

Plaintiff was not capable of completing a forty hour work

for

(Id.).

attention

that

(Id.).

Additionally, Plaintiff screened

deficit

“treatment

Plaintiff could, however,

hyperactivity

of

(Id.).

8

ADHD

disorder

(Id.).
may

help

(ADHD),

The Doctor
[with]

her

The Report did not comment on

1

B.

2

Non-Examining Doctor’s Opinion Regarding Plaintiff’s Mental
Condition

3
4

On August 3, 2010, Dr. S. Khan completed a Physical Residual

5

Functional Capacity Assessment of Plaintiff (“RFC”) based on a

6

review of Plaintiff’s medical records.

7

indicated that Plaintiff had mild restrictions for activities of

8

daily living and mild difficulties in maintaining concentration,

9

persistence

or

pace.

(AR

355).

(AR 347-59).

Dr.

Khan

also

Dr. Khan

found

that

10

Plaintiff had no difficulties maintaining social functioning and

11

no repeated episodes of decompensation.

12

“[Plaintiff] from a psychiatric standpoint appear[ed] to have

13

non-severe

14

psychiatric

15

[Plaintiff]’s

16

concluded

17

(AR 359).

psych

MDI

and

symptoms

do

ability

to

that

additionally
not

it

Dr. Khan stated,

appear[ed]

significantly

function.”

Plaintiff

(Id.).

had

(AR

“mostly

the

decrease/impact

357).
mild

that

Dr.

Khan

limitations.”

18
19

C.

Medical Expert Testimony

20
21

On October 11, 2011, medical expert Dr. Craig Rath testified

22

at Plaintiff’s hearing.

(AR 45, 49).

Dr. Rath stated that

23

Plaintiff suffered from a mood disorder not otherwise specified

24

and an anxiety disorder not otherwise specified.

25

Rath considered Plaintiff for a panic disorder but she did not

26

meet the frequency criteria for a 12.063.5

(AR 50).

(AR 50).

Dr.

According

27
5

28

According
to
the
Disability
Evaluation
under
Social
Security, a 12.063 is defined as recurrent severe panic attacks
9

1

to Dr. Rath, the record reflected ratings of normal or mild for

2

anxiety, panic attacks and depression.

3

reported she was doing well on a number of occasions.

4

Plaintiff’s

5

sources.”

6

had to be in no more than “a moderately stressful environment

7

from all sources including no stressful high production quotas,

8

no intrusive supervision.”

9

part of a team where there is a lot of peer pressure for her to

“main

limitation

(AR 52).

(Id.).

would

(AR 50-51).

be

Plaintiff

stressed[sic]

(AR 51).
from

all

Because Plaintiff is prone to anxiety, she

(Id.).

Plaintiff “can’t really be

10

perform.”

Plaintiff also cannot be “in charge of the

11

safety operation of others, no heights, [or] dangerous moving

12

appointment.”

(Id.).

13
14

D.

Vocational Expert Testimony

15
16

Vocational Expert (“VE”) Ronald Hatakeyama testified about

17

the existence of jobs in the national economy that Plaintiff

18

could perform given her physical limitations.

19

According to the VE, a hypothetical individual of Plaintiff’s

20

vocational

21

Plaintiff’s past work as a cashier or sandwich maker because she

22

would

23

Plaintiff

24

economy, however, such as an addresser in a mailroom or a linen

25

room attendant.

profile

have

to

could

deal

and

RFC

with

perform

would

the

other

(AR 64-65).

not

public
jobs

be

(AR 45, 63-65).

able

to

constantly.

existing

in

perform

(AR
the

64).

national

These jobs existed in significant

26
27
28

manifested
by
a
sudden
unpredictable
onset
of
intense
apprehension, fear, terror and sense of impending doom occurring
on the average of at least once a week.
10

economy.6

1

numbers

2

hypothetical individual sharing Plaintiff’s limitations could not

3

perform any job in the national economy, however, if that person

4

“could not persist throughout a normal eight hour workday or

5

[forty] hour work week.”

in

the

national

and

local

(Id.)

A

(AR 66).

6
7

E.

Plaintiff’s Daughter’s Third Party Function Report

8
9

On July 11, 2010, Plaintiff’s daughter, Aubree Maldonado

10

(“Aubree”),

completed

a

11

Report”) regarding how Plaintiff’s alleged disability limited her

12

activities.

13

activities included watching TV, gardening, playing with her dog

14

and cleaning.

15

and worked in the yard.

16

own meals, but she no longer prepared four course meals.

17

Plaintiff did not socialize, work, drive or go shopping anymore.

18

(AR 187, 189).

19

she talks to is her sister.”

20

insomnia almost every night.”

21

the bills herself, (AR 190), but “hasn’t paid bills or had a bank

22

account for years.”

23

nearly zero.”

24

the landlord visited their house.

25

felt anxious and cried whenever something changed or was out of

(AR 186).

(Id.).

Third

Party

Function

Report

(“TPF

According to Aubree, Plaintiff’s daily

Plaintiff also washed dishes, did laundry
(AR 188).

Plaintiff could prepare her
(Id.).

“The only person (outside of [their] house) that
(AR 193).
(AR 187).

(AR 189).

(AR 191).

Plaintiff had “terrible
Plaintiff used to pay

Plaintiff’s “attention span is

Plaintiff also hid in her room whenever
(AR 192).

Further, Plaintiff

26
27
28

6

According to the VE, 3,000 regional and 68,000 national
mailroom addresser jobs existed, and 2,500 regional and 350,000
national linen room attendant jobs existed. (AR 65).
11

1

place.

2

extreme panic, anxiety, [and] sometimes anger [and] tears.”

3

193).

(Id.).

“[E]ven the smallest change of any kind causes
(AR

4
5

F.

Plaintiff’s Function Report

6
7

On July 10, 2010, Plaintiff completed a Function Report.

8

(AR

198,

205).

9

activities included drinking coffee, showering, eating, watching

10

TV, feeding her dog, doing some housework, laying down, watering

11

flowers and sometimes working in the yard.

12

could no longer work, shop, socialize or cook complete meals

13

because of her illness.

14

prepare

“sandwiches,

15

eggs.”

(AR 200).

16

did

17

Plaintiff reported difficulty falling asleep, which she tried to

18

remedy with Xanax.7

laundry,

swept,

Plaintiff

stated

(AR 199-200).

frozen

dinners

that

her

typical

(AR 198).

daily

Plaintiff

Plaintiff could, however,
[and]

sometimes

scrambled

Plaintiff also regularly washed the dishes,
watered

flowers

and

pulled

weeds.

(Id.).

(AR 199).

19
20

Plaintiff claimed that she was unable to drive and could not

21

leave her home alone because she was scared of having a panic

22

attack.

23

to

24

(AR 201-202).

the

(AR 201).
store

with

She did not shop at all, but sometimes went
her

sister

or

to

the

lake

with

her

mom.

Plaintiff “[had] a hard time talking to people.”

25
26
27
28

7

According to Plaintiff, she takes Xanax to treat her anxiety
and panic attacks.
(AR 226).
Xanax is traditionally used to
treat anxiety disorders. Burger v. Astrue, 536 F. Supp. 2d 1182,
1189 n.8 (C.D. Cal. 2008) (citing The PDR Family Guide to
Prescription Drugs 742 (9th ed. 2000)).
12

1

(AR 203).

2

interested in what [she had] to say.”

3

hard time reading.

4

“ok I guess,” but she was not sure because she had not “tried to

5

do anything like that for a long time.”

6

“really anxious if someone want[ed] to talk to [her] on the

7

phone.”

8

paperwork like the Function Report because she “[got] panicky”

9

and needed to stop and calm down after each question.

She “[felt] stupid and [she felt] like no one [was]

(AR 205).

also

(Id.).

(Id.).

Plaintiff had a

She could follow written instructions

(Id.).

Plaintiff got

Furthermore, Plaintiff took hours to complete

needed

things

to

be

organized

a

(Id.).

10

Plaintiff

certain

way,

11

including the space between objects on her dresser, because she

12

was “afraid of thing[s] being different.”

(Id.).

13
14

G.

Plaintiff’s Testimony

15
16

Plaintiff testified that “[she] got sick the first time when

17

[she] was married.”

(AR 56).

After leaving her husband, she

18

started feeling better and “thought [she] was cured.”

19

57).

20

six years.

21

interact with customers.”

22

across the street, even though her job was only a five minute

23

walk from her house.

24

fired because my books were coming out all that, like money was

25

missing and stuff and I guess they thought I was stealing.”

26

(Id.).

27

\\

28

\\

(AR 56-

She started having panic attacks again after working for
(Id.).

Plaintiff could no longer “do [her] job or

(Id.).

(AR 57).

She became afraid to walk

Plaintiff stated, “I eventually got

13

1

According to Plaintiff, “on good days” she showers, eats and

2

sometimes

works

in

the

3

anywhere.”

4

house, however, because whenever she felt overwhelmed she could

5

lock

6

sometimes goes to the market with her sister.

7

“really

8

(Id.).

9

what she just read.

(Id.).

herself

in

anxious”

yard.

(AR

55).

She

“rarely

[goes]

She attended a baby shower at her sister’s

her

sister’s

and

room.

“overwhelmed

(Id.).

with

Plaintiff
(Id.).

also

She gets

everything,”

however.

She watches TV and reads, but at times she cannot recall
(AR 55-56).

When Plaintiff’s mother visits,

10

they walk the dogs around a lake.

(AR 58).

Plaintiff used to

11

drive before getting sick, but no longer has a driver’s license.

12

(AR 59).

13

stopped her from wanting to commit suicide.

14

helps with her anxiety and panic attacks.

15

not have any side effects from her medications except feeling

16

“really tired” from Xanax.

Plaintiff’s medication helped her stay out of bed and
(AR 61).
(Id.).

Xanax also

Plaintiff does

(Id.).

17
18

IV.

19

THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS

20
21

To

qualify

disability

claimant

impairment that prevents her from engaging in substantial gainful

24

activity and that is expected to result in death or to last for a

25

continuous period of at least twelve months.

26

157

27

§ 423(d)(1)(A)).

28

incapable of performing the work she previously performed and

The

(9th

Cir.

impairment

14

1998)
must

physical

or

must

23

721

determinable

a

demonstrate

715,

medically

benefits,

22

F.3d

a

for

mental

Reddick v. Chater,
(citing

render

42
the

U.S.C.
claimant

1

incapable of performing any other substantial gainful employment

2

that exists in the national economy.

3

1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).

Tackett v. Apfel, 180 F.3d

4
5

To decide if a claimant is entitled to benefits, an ALJ

6

conducts a five-step inquiry.

7

20 C.F.R. §§ 404.1520, 416.920.

The steps are:

8
9

(1)

Is the claimant presently engaged in substantial

10

gainful activity?

11

not disabled.

12

(2)

If so, the claimant is found

If not, proceed to step two.

Is the claimant’s impairment severe?

13

claimant is found not disabled.

14

If not, the

to step three.

15

(3)

If so, proceed

Does the claimant’s impairment meet or equal one

16

of

17

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

18

the claimant is found disabled.

19

to step four.

20

(4)

the

specific

impairments

described

in

20

If so,

If not, proceed

Is the claimant capable of performing his past

21

work?

22

If not, proceed to step five.

23

(5)

If so, the claimant is found not disabled.

Is the claimant able to do any other work?

24

not, the claimant is found disabled.

25

claimant is found not disabled.

26
27
28
15

If

If so, the

1

Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari,

2

262 F.3d 949, 953-54 (9th Cir. 2001) (citations omitted); 20

3

C.F.R. §§ 404.1520(b)-(g)(1) & 416.920(b)-(g)(1).

4
5

The claimant has the burden of proof at steps one through

6

four, and the Commissioner has the burden of proof at step five.

7

Bustamante, 262 F.3d at 953-54.

8

affirmative duty to assist the claimant in developing the record

9

at every step of the inquiry.”

“Additionally, the ALJ has an

(Id. at 954).

If, at step four,

10

the claimant meets her burden of establishing an inability to

11

perform past work, the Commissioner must show that the claimant

12

can perform some other work that exists in “significant numbers”

13

in the national economy, taking into account the claimant’s RFC,

14

age, education, and work experience.

15

1100; Reddick, 157 F.3d at 721; 20 C.F.R. §§ 404.1520(g)(1),

16

416.920(g)(1).

17

vocational

18

Guidelines appearing in 20 C.F.R. Part 404, Subpart P, Appendix 2

19

(commonly known as “the Grids”).

20

1157, 1162 (9th Cir. 2001).

21

(strength-related) and non-exertional limitations, the Grids are

22

inapplicable and the ALJ must take the testimony of a vocational

23

expert.

24

(citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988)).

The Commissioner may do so by the testimony of a

expert

Moore

Tackett, 180 F.3d at 1098,

v.

or

by

Apfel,

reference

to

the

Medical-Vocational

Osenbrock v. Apfel, 240 F.3d

When a claimant has both exertional

216

F.3d

25
26
27
28
16

864,

869

(9th

Cir.

2000)

1

V.

2

THE ALJ’S DECISION

3
4

The ALJ employed the five-step sequential evaluation process

5

and concluded that Plaintiff was not disabled within the meaning

6

of the Social Security Act.

7

that Plaintiff had not engaged in substantial gainful activity

8

because her alleged disability onset date of December 31, 2004.

9

(AR 14).

(AR 22).

At step one, the ALJ found

At step two, the ALJ found that Plaintiff had the

10

severe impairments of mood disorder and anxiety disorder that

11

“cause significant limitation in [Plaintiff’s] ability to perform

12

basic work activities.”

13

that all other alleged impairments were not severe under Social

14

Security Administration regulations.

(AR 14-15).

The ALJ found, however,

(AR 15).

15
16

At step three, the ALJ found that Plaintiff did not have an

17

impairment or combination of impairments that met or medically

18

equaled one of the listed impairments in 20 C.F.R. Part 404,

19

Subpart P, Appendix 1.

20

had

21

social functioning, and with regard to concentration, persistence

22

or pace, which do not satisfy the “‘paragraph B’” criteria.

23

15-16).

moderate

(AR 15).

difficulties

in

The ALJ stated that Plaintiff

activities

of

daily

living

and

(AR

24
25

Next,

the

ALJ

found

that

Plaintiff

had

the

residual

26

functional capacity to perform work at all exertional levels, but

27

with

28

moderately stressful environment; no high production quotas or

nonexertional

limitations

17

including:

no

more

than

a

1

intrusive supervision; no team type of work; should not be in

2

charge of the safety of others; and should not be around heights

3

or dangerous machinery.

4

(AR 16-17).

5
6

The ALJ found that “[Plaintiff’s] statements concerning the

7

intensity, persistence and limiting effects of these symptoms

8

[were] not credible to the extent they [were] inconsistent with

9

the above [RFC] assessment.”

(AR 19).

10

Plaintiff’s

been

11

conservative in nature;” Plaintiff had not been hospitalized, did

12

not

13

medications

14

evidence

15

actually been “successful in controlling the symptoms” overall.

16

(Id.).

17

Dr. Khan’s opinions.

18

opinions were consistent with the determination that Plaintiff’s

19

conditions were not severe enough to “significantly decrease or

20

impact” Plaintiff’s ability to work.

treatment

receive

“[had]

regular,
remained

of

individual
stable.

continued

(AR

treatment,

The ALJ stated that

essentially

or

group

18).

routine

therapy,

and

Furthermore,

Plaintiff’s

and

her

despite

treatment

had

The ALJ also gave considerable weight to Dr. Rath’s and
(AR 19-20).

According to the ALJ, their

(AR 19).

21
22

The

ALJ

gave

little

psychiatrist’s

weight
opinions.

to

the

TPF

(AR 20).

Report
The

and

ALJ

the

23

Riverside

found

24

inconsistencies between the Riverside psychiatrist’s opinions and

25

treatment notes throughout Plaintiff’s treatment period.8

26

20).

(AR

Specifically, the psychiatrist noted that Plaintiff had

27
8

28

The ALJ did not identify the Riverside
referred instead to “a psychiatrist” generally.
18

psychiatrist
(AR 20).

but

1

impaired

2

notes categorized her judgment as “within normal limits.”

3

20).

4

believed the other evidence in the record did not support them.

5

(Id.).

6

discussion of Plaintiff’s daily activities in the TPF report.

7

(Id.).

8

testimony,

9

medical source and did not observe [Plaintiff] in a professional

10

capacity” the ALJ found the statements to be “of little value.”

11

(Id.).

judgment,

but

“nearly

all”

of

Plaintiff’s

treatment
(AR

Thus, the ALJ considered the psychiatrist’s opinions, but

The

ALJ

The

ALJ

also

considered

noted

however,

that

because

this

the

Plaintiff’s

did

daughter’s

corroborate

Plaintiff’s

daughter

Plaintiff’s
was

“not

a

12
13

The ALJ noted that Plaintiff’s “self-reported activities of

14

daily

living

[were]

15

disability.”

(AR 18).

16

Plaintiff’s

“continuing

17

medical impairments” because Plaintiff worked “only sporadically”

18

prior to the alleged disability onset date.

19

noted

20

unrelated to the allegedly disabling impairments,” including her

21

alimony payments and lack of transportation.

evidence

that

inconsistent

with

her

allegations

of

Furthermore, the ALJ questioned whether
unemployment

Plaintiff

“was

[was]

not

actually

(Id.).

working

for

due

to

The ALJ
reasons

(AR 19).

22
23

At step four, the ALJ determined that Plaintiff could not

24

perform her past relevant work as a sandwich maker and cashier.

25

(AR 20).

At step five, the ALJ considered Plaintiff’s age,

26

education,

work

27

Plaintiff’s past relevant work was unskilled, the transferability

28

of job skills was “not an issue.”

experience,

and

19

RFC.

(Id.).

(AR

20-21).

Because

1
2

Based on the VE’s testimony, the ALJ found that, considering

3

Plaintiff’s age, education, work experience and RFC, there were

4

jobs existing in significant numbers in the national economy that

5

Plaintiff

6

Plaintiff could perform work at all exertional levels but with

7

some nonexertional limitations.

8

included an addresser in a mail room and a linen room attendant.

9

(Id.).

could

perform.

(AR

21).

(Id.).

The

ALJ

concluded

that

Potential available jobs

The ALJ further determined that such jobs existed in

10

significant

11

numbers

in

both

the

local

and

national

economy.

(Id.).

12
13

VI.

14

STANDARD OF REVIEW

15
16

Under 42 U.S.C. § 405(g), a district court may review the

17

Commissioner’s decision to deny benefits.

The court may set

18

aside the Commissioner’s decision when the ALJ’s findings are

19

based on legal error or are not supported by substantial evidence

20

in the record as a whole.

21

1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); Smolen

22

v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Fair v.

23

Bowen, 885 F.2d 597, 601 (9th Cir. 1989)); See also Simon v.

24

Colvin, 749 F.3d 1106, 1106 (9th Cir. 2014) (citing Smolen 80

25

F.3d 1273, 1279).

Aukland v. Massanari, 257 F.3d 1033,

26
27
28

“Substantial evidence is more than a scintilla, but less
than a preponderance.”

Reddick, 157 F.3d at 720 (citing Jamerson
20

1

v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)).

2

evidence which a reasonable person might accept as adequate to

3

support a conclusion.”

4

Smolen,

5

evidence supports a finding, the court must “‘consider the record

6

as a whole, weighing both evidence that supports and evidence

7

that detracts from the [Commissioner’s] conclusion.’”

8

257 F.3d at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th

9

Cir.

80

F.3d

1993)).
or

at

If

(Id.) (citing Jamerson, 112 F.3d at 1066;

1279).

the

reversing

It is “relevant

To

evidence
that

determine

can

whether

reasonably

conclusion,

the

substantial

Aukland,

support
court

either

10

affirming

may

not

11

substitute its judgment for that of the Commissioner.

12

157 F.3d at 720-21 (citing Flaten v. Sec’y, 44 F.3d 1453, 1457

13

(9th Cir. 1995)).

Reddick,

14
15

VII.

16

DISCUSSION

17
18

Plaintiff contends that the ALJ erred by improperly finding

19

Plaintiff’s testimony less than credible.

20

of Plaintiff’s Complaint (“MSPC”) at 2-7).

21

For the reasons discussed below, the ALJ’s decision is AFFIRMED.

22

\\

23

\\

24

\\

25

\\

26

\\

27

\\

28
21

(Memorandum in Support
The Court disagrees.

1
2

A.

The ALJ Provided Clear And Convincing Reasons For Rejecting
Plaintiff’s Subjective Testimony

3
4

1.

Legal Standard

5
6

When assessing a claimant’s credibility, the ALJ must engage

7

in a two-step analysis.

8

(9th Cir. 2012) (citing Vazquez v. Astrue, 572 F.3d 586, 591 (9th

9

Cir. 2009)).
of

Molina v. Astrue, 674 F.3d 1104, 1112

First, the ALJ must determine if there is medical

10

evidence

an

impairment

11

symptoms alleged.

12

the testimony, the ALJ must make specific credibility findings.

13

(Id.).

14

and deny disability benefits solely because the degree of pain

15

alleged by the claimant is not supported by objective medical

16

evidence.

17

Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991).

(Id.).

that

could

reasonably

produce

the

Then, If there is, in order to reject

The ALJ may not discredit a claimant’s testimony of pain

Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005);

18
19
20
21

In assessing the claimant’s testimony, the ALJ may consider
many factors, including:
(1)

ordinary techniques of credibility evaluation, such

22

as

23

inconsistent statements concerning the symptoms, and

24

other testimony by the claimant that appears less

25

than candid;

26

(2)

the

claimant's

unexplained

or

reputation

inadequately

for

lying,

explained

prior

failure

to

27

seek treatment or to follow a prescribed course of

28

treatment; and
22

1

(3)

the claimant’s daily activities.

2
3

Smolen, 80 F.3d at 1284.

Additionally, the ALJ may discredit the

4

claimant’s testimony where his normal activities can transfer to

5

the work setting.

6

595, 600 (9th Cir. 1999); See also Vertigan v. Halter, 260 F.3d

7

1044, 1049 (9th Cir. 2001).

Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d

8
9

Here,

the

ALJ

provided

sufficient

reasons

for

rejecting

10

Plaintiff’s testimony.

11

for

12

credible:

13

evidence; (2) Plaintiff’s symptoms improved through medication;

14

(3) Plaintiff’s daily activities demonstrated an ability to work;

15

and

16

working.

finding

(4)

The ALJ stated four specific explanations

Plaintiff’s

subjective

(1) Plaintiff’s

Plaintiff

had

testimony

testimony

possible

less

contradicted

alternative

than
the

reasons

fully

medical

for

not

17
18

2.

Medical Evidence

19
20

First,

the

ALJ

considered

the

fact

that

Plaintiff’s

21

“treatment [had] been essentially routine and conservative in

22

nature.”

23

mental impairments that caused difficulty, “[she] ha[d] not been

24

hospitalized, ha[d] not engaged in regular individual or group

25

therapy, and her medications ha[d] been fairly stable.”

26

The

27

treatment

28

Shalala,

Court

(AR 18).

agrees

The ALJ noted that, although Plaintiff had

that

undermines
60

F.3d

the

conservative

Plaintiff’s

1428,

1434

testimony.

(9th
23

nature

Cir.

1995)

of
See

(Id.).

Plaintiff’s
Johnson

(stating

v.

that

1

conservative or infrequent treatment may be used by the ALJ to

2

discredit Plaintiff’s subjective pain testimony); Tomasetti v.

3

Astrue, 533 F.3d 1035, 1039-40 (9th Cir. 2008) (stating that

4

conservative

5

regarding severity of an impairment).

treatment

may

undermine

a

claimant’s

reports

6
7

Furthermore, the ALJ found that the medical evidence does

8

not support Plaintiff’s subjective testimony.

9

example,

Plaintiff

claimed

that

she

suffered

(AR 18-19).
disabling

For
panic

10

attacks, but the medical records routinely show that while she

11

may have experienced panic attacks, she would often report that

12

she “[was] doing well.”

13

that Xanax “effectively controll[ed] her panic attacks.”

14

As such, the ALJ properly gave substantial weight to the opinions

15

of Dr. Rath and Dr. Khan, and rejecting Plaintiff’s testimony on

16

her subjective symptoms.

17

F.3d 853, 857 (9th Cir. 2005) (holding that “[w]hile subjective

18

pain testimony cannot be rejected on the sole ground that it is

19

not

20

evidence is still a relevant factor in determining the severity

21

of the claimant’s pain and its disabling effects”).

fully

corroborated

(AR 18).

(AR 19).

by

Further, Plaintiff reported
(Id.).

See Rollins v. Massanari, 261

objective

evidence,

the

medical

22
23

In assessing credibility, the ALJ may examine testimony from

24

physicians and third parties concerning the nature, severity and

25

effect of the symptoms of which Plaintiff complains.

26

Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002).

27

that Plaintiff had a mood and anxiety disorder “not otherwise

28

specified,” but Plaintiff’s ratings were essentially “normal or
24

Thomas v.

Dr. Rath found

1

mild throughout the entire record.”

2

found that Plaintiff’s limitations “[were] not severe and [did]

3

not significantly decrease or impact” her ability to work.

4

19).

5

though Dr. Khan and Dr. Rath were non-examining doctors, they had

6

greater expertise in the Social Security Act and regulations,

7

including “all pertinent definitions and procedures utilized by

8

the

9

individual is entitled to disability insurance benefits under

(AR 19).

Dr. Khan similarly

(AR

The ALJ gave more weight to these opinions because, even

Social

II

Security

and

Administration

supplemental

in

Title

11

(Id.).

12

ALJ

properly

under

considered

Title

an

evidence in discrediting Plaintiff’s subjective pain testimony

the

income

whether

10

Therefore,

security

determining

the

XVI.”

medical

13
14

3.

Successful Control Of Symptoms Through Medication

15
16

Second, the ALJ stated that Plaintiff’s treatment had been

17

“generally

successful”

in

controlling

the

disabling

symptoms.

18

(AR 18).

19

report[ed]

20

Specifically,

21

304); felt “pretty good” on March 31, 2005 (AR 301); felt “no

22

panic” on September 12, 2005 (AR 299); was “doing well [...] and

23

voic[ed] no complaints” on June 5, 2006 and August 27, 2007 (AR

24

291, 297); felt “a lot better” with more energy and motivation on

25

September 8, 2006 (AR 296); felt “much better” on August 18, 2008

26

(AR 275);

27

attacks” on November 18, 2008 (AR 270) and was “doing well”

Plaintiff’s medical records “reflect that she routinely
that

she

Plaintiff

felt

“better,

[was]
“felt

much

‘doing
better”

less

28
25

well.’”
on

October

anxious,

and

(AR
5,

18).

2004

[zero]

(AR

panic

1

November 30, 2009, February 22, 2010 and May 17, 2010 (AR 256-

2

258).

3
4

The

ALJ

also

noted

that

“the

side

effects

from

5

medications are either nonexistent or mild.”

6

September 2004 through May 2010, Plaintiff regularly reported no

7

side effects from her medication.

8

272, 275, 280, 282, 288, 291, 293-297, 299, 301, 305).

9

result, the successful treatment of Plaintiff’s condition through

10

medication undermined the assertion that her disability would not

11

allow her to work.

12

Cir. 1995) (stating that “effectiveness or adverse side effects

13

of any pain medication” may be used by the ALJ in making a

14

credibility determination); Tommasetti, 533 F.3d at 1040 (stating

15

a

16

medication, may undermine a claimant’s assertions).

favorable

(AR 18).

her
From

(AR 256-259, 266, 269, 270,
As a

See Orteza v. Shalala, 50 F.3d 748, 750 (9th

response

to

conservative

treatment,

including

17
18

4.

Daily Activities

19
20

Third, in rejecting Plaintiff’s subjective pain testimony,

21

the ALJ noted that Plaintiff’s “self-reported activities of daily

22

living

23

(AR 18).

24

reported “keep[ing] active, do[ing] yard work, read[ing, and]

25

go[ing] to[sic] walks” on June 5, 2006 (AR 297); dieting, keeping

26

active, and losing weight on September 8, 2006 and November 30,

27

2006 (AR 295-296); going for long walks and “looking for jobs” on

28

August 27, 2007 (AR 291); keeping active on March 5, 2008 (AR

are

inconsistent

with

her

allegations

of

disability.”

Plaintiff’s Riverside medical records indicate that she

26

1

282); travelling to Texas on March 17, 2009 (AR 266) and taking

2

care of her mother, who potentially had Alzheimer’s, on February

3

22, 2010 (AR 257).

4

Function Report that she did housework and yard work, took care

5

of her dog, prepared meals and sometimes went to the store with

6

her sister.

7

ALJ on October 11, 2011, Plaintiff testified that she did yard

8

work, occasionally went to the market with her sister and walked

9

dogs when her mother visited.

Plaintiff also reported on her July 10, 2010

(AR 198-202).

Further, at the hearing before the

(AR 55-56, 58).

10
11

The

ALJ

appropriately

considered

Plaintiff’s

daily

12

activities when making his credibility determination.

13

Morgan, 169 F.3d at 600 (the ALJ may discredit the claimant’s

14

testimony where his normal activities can transfer to the work

15

setting); Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996)

16

(to determine whether the plaintiff’s testimony regarding the

17

severity of his symptoms is credible, the ALJ may consider the

18

claimant’s daily activities); Fair v. Bowen, 885 F.2d 597, 603

19

(9th Cir. 1989) (if the plaintiff can perform household chores

20

and daily activities that involve “similar physical tasks as a

21

particular type of job,” and ALJ could conclude that the alleged

22

disability

23

Consequently, the Court finds that remand is not required.

“does

not

prevent

the

24
25
26
27
28
27

[plaintiff]

from

See, e.g.,

working.”)

1

5.

Other Possible Explanations

2
3

Finally,

the

ALJ

noted

that

Plaintiff’s

continued

4

unemployment could be due to reasons unrelated to her medical

5

impairments.

6

that she supported herself on alimony.

7

8, 2006, Plaintiff reported that she was not looking for a job

8

and continued to support herself on alimony.

9

November 30, 2006, Plaintiff considered working but asserted that

(AR 18-19).

On June 29, 2005, Plaintiff reported
On September

(AR 296).

On

10

she lacked transportation.

11

was looking for a job “per court request,” however, she still

12

received alimony.

13

that

14

November 19, 2007.

15

that Plaintiff looked for work and claimed other reasons for not

16

working, the ALJ properly concluded that Plaintiff’s unemployment

17

may

18

Massanari, 268 F.3d 824, 828 (9th Cir. 2001) (the ALJ properly

19

considered other possible explanations for lack of work unrelated

20

to plaintiff’s medical condition).

she

be

(AR 293).

continued

unrelated

(AR 295).

(AR 300).

looking

Furthermore, Plaintiff reported

for

jobs

(AR 288, 291).

to

her

On May 22, 2007, Plaintiff

medical

21
22
23
24
25
26
27
28
28

on

August

27,

2007

and

Thus, considering evidence

conditions.

See

Bruton

v.

1

In

sum,
by

the

ALJ

offered

substantial

clear

evidence

and
for

convincing

2

supported

finding

3

reasons

Plaintiff’s

subjective testimony less than fully credible.

4
5

VIII.

6

CONCLUSION

7
8

Consistent with the foregoing, IT IS ORDERED that Judgment

9

be entered AFFIRMING the decision of the Commissioner. The Clerk

10

of the Court shall serve copies of this Order and the Judgment on

11

counsel for both parties.

12
13

DATED:

September 26, 2014

/S/
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE

14
15
16
17
18
19

THIS DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS, WESTLAW
OR OTHER LEGAL DATABASE.

20
21
22
23
24
25
26
27
28
29