Sylvia Ceballos v. Carolyn W Colvin

Filing 22

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

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA-EASTERN DIVISION 10 ) No. CV 13-1583-AS ) ) Plaintiff, ) MEMORANDUM OPINION v. ) ) CAROLYN W. COLVIN, ) Acting Commissioner of the ) Social Security Administration, ) ) Defendant. ) ) SYLVIA CEBALLOS, 11 12 13 14 15 16 17 PROCEEDINGS 18 19 20 On September 11, 2013, Plaintiff filed a Complaint seeking 21 review of the denial of her application for Social Security benefits. 22 (Docket Entry No. 1.) 23 United States Magistrate Judge. 24 January 10, 2014, Defendant filed an Answer to the Complaint along 25 with the Administrative Record (“A.R.”). 26 The parties filed a Joint Stipulation (“Joint Stip.”) on July 2, 27 2014, setting forth their respective positions on Plaintiff’s claim. The parties consented to proceed before a (Docket Entry Nos. 8, 10.) 28 1 On (Docket Entry Nos. 13, 14.) 1 (Docket Entry No. 20.) The Court 2 submission without oral argument. has taken the matter under See C.D. Cal. L.R. 7-15. 3 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 4 5 6 On February 1, 7 Supplemental 8 Plaintiff alleged an inability to work since February 11, 2010 due to 9 severe Social depression, 2012, Plaintiff Security paranoia, (A.R. 166.) Income suicidal filed an application (“SSI”). tendencies, (A.R. and for 142—47.) homicidal 10 tendencies. On April 2, 2013, the Administrative Law 11 Judge (“ALJ”), Mason D. Harrell, Jr., examined the record and heard 12 testimony from Plaintiff and vocational expert Mary Jesko. 13 42.) 14 application. 15 following severe impairments: depression and obesity. 16 However, the ALJ found that Plaintiff was not disabled within the 17 meaning of the Social Security Act. (A.R. 23— On June 24, 2013, the ALJ issued a decision denying Plaintiff’s (A.R. 6-22.) The ALJ determined that Plaintiff had the (A.R. 11.) (See A.R. 13—18.) 18 Plaintiff requested that the Appeals Council review the ALJ’s 19 20 decision. (A.R. 14—15.) The request was denied on July 19, 2013. 21 (A.R. 1—4.) 22 Commissioner, allowing this Court to review the decision. 23 U.S.C. §§ 405(g); 1383(c). 24 / / 25 / / 26 / / 27 / / 28 / / The ALJ’s decision then became the final decision of the 2 See 42 PLAINTIFF’S CONTENTIONS 1 2 3 Plaintiff alleges that the ALJ erred in: (1) discounting the 4 credibility of Plaintiff’s testimony and subjective complaints in 5 support of her disability claim, and (2) finding an inconsistency 6 between the Dictionary of Occupational Titles (“DOT”) and the ALJ’s 7 holding that the Plaintiff can perform the jobs of small products 8 assembler and garment folder. (Joint Stip. 3.) 9 DISCUSSION 10 11 12 A. The ALJ Did Not Err In Evaluating Plaintiff’s Credibility 13 An ALJ’s assessment of a claimant’s credibility is entitled to 14 15 “great weight.” See Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th 16 Cir. 1990); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). 17 “[T]he ALJ is not required to believe every allegation of disabling 18 pain, or else disability benefits would be available for the asking, 19 a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).” 20 Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). 21 whether a claimant’s testimony is credible, the ALJ engages in a two- 22 step analysis. 23 2014). Molina v. In order to determine Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 24 First, the claimant “must produce objective medical evidence of 25 26 an underlying 27 produce the pain or other symptoms alleged.’” 28 947 F.2d impairment 341, 344 ‘which (9th could Cir. 3 reasonably 1991) be expected to Bunnell v. Sullivan, (quoting 42 U.S.C. 1 § 423(d)(5)(A)(1988)). In producing evidence of the underlying 2 impairment, “the claimant need not produce objective medical evidence 3 of the pain or fatigue itself, or the severity thereof.” 4 Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). 5 “need only show that [the impairment] could reasonably have caused 6 some degree of the symptom.” Smolen v. Instead, the claimant Id. 7 8 9 Second, once the claimant has produced the requisite objective medical evidence, the “ALJ may reject the claimant’s testimony 10 regarding the severity of her symptoms.” 11 Absent affirmative evidence of malingering, however, the ALJ may only 12 reject 13 convincing reasons for doing so.” 14 alleged symptoms, an ALJ may consider: “(1) ordinary techniques of 15 credibility 16 prior 17 testimony by the claimant that appears to be less than candid; (2) 18 unexplained or inadequately explained failure to seek treatment or to 19 follow a prescribed course of treatment; and (3) the claimant’s daily 20 activities.” 21 record 22 other third parties.” a plaintiff’s evaluation, inconsistent and testimony Id. such as statements “by Smolen, 80 F.3d at 1284. offering Id. clear and In assessing a claimant’s claimant’s concerning specific, reputation the symptoms, for and lying, other An ALJ may also consider “the claimant’s work observations of treating and examining physicians and Id. 23 24 Here, the ALJ examined the Administrative Record and heard 25 testimony from Plaintiff. 26 that Plaintiff had produced objective medical evidence of underlying 27 impairments that “could reasonably be expected to cause some of the 28 alleged symptoms.” (A.R. Based on the record, the ALJ determined 14.) However, 4 the ALJ found that 1 Plaintiff’s “statements concerning the intensity, persistence 2 limiting effects of these symptoms are not entirely credible.” 3 and 14.) (A.R. 4 The Court agrees with Plaintiff that some of the ALJ’s reasons 5 6 for discounting her testimony were not clear and convincing. 7 example, the ALJ found that Plaintiff’s description of her symptoms 8 were 9 otherwise make it more convincing.” “vague and general, lacking the specificity, (A.R. 14.) which For might However, the ALJ 10 failed to specifically identify what testimony he found not credible. 11 See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (“the ALJ 12 must 13 undermines the claimant’s complaints.”) (quoting Lester v. Chater, 81 14 F.3d 821, 834 (9th Cir. 1995)). 15 finding, Plaintiff testified that she “paces a lot, get[s] agitated, 16 and anxious,” that she sees hallucinations and hears voices talking 17 to her, and that she thinks people are conspiring against her. 18 31—32.) 19 paranoid, anxious, agitated, and borderline aggressive. 20 Plaintiff also stated that she tried to kill her sister and another 21 male 22 testimony, the Court finds that Plaintiff has described her symptoms 23 with 24 convincing reason to discredit Plaintiff’s testimony. 25 157 F.3d at 722. identify what testimony is not credible and what evidence Moreover, contrary to the ALJ’s (A.R. Plaintiff stated that when she gets depressed, she is sad, relative. (A.R. sufficient 35—36.) particularity. Based Thus, on this the is (A.R. 33.) above not a mentioned clear and See Reddick, 26 27 28 The ALJ also discredited Plaintiff’s credibility Plaintiff’s description of her daily activities. 5 based on Orn v. Astrue, 495 1 F.3d 625, 639 (9th Cir. 2007) (“[D]aily activities may be grounds for 2 an adverse credibility finding if a claimant is able to spend a 3 substantial part of his day engaged in pursuits involving performance 4 of physical functions that are transferable to a work setting.”) 5 ALJ noted that Plaintiff indicated she could take care of hygiene and 6 perform self-care, cook, do chores, and follow safety precautions. 7 (A.R. 14.) 8 abilities and social interactions required in order to perform these 9 activities The The ALJ found that some of the physical and mental are the same employment. as those reiterated that “[g]enerally, an ALJ should not consider activities 12 like 13 attendance, club activities, or social programs to be substantial 14 gainful activities.” 15 2001). 16 be disabled.” 17 2001) (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). 18 Here, Plaintiff’s reported daily activities are not indicative of her 19 ability to work and do not detract from her subjective complaints. 20 Thus, the ALJ erred in discrediting Plaintiff because she was engaged 21 in some limited activities of daily living. oneself, household Ninth and 11 of the obtaining maintaining care However, for 10 taking (Id.) necessary tasks, Circuit hobbies, has school Lewis v. Apfel, 236 F.3d 503, 516 (9th Cir. “One does not need to be ‘utterly incapacitated’ in order to Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 22 23 Nevertheless, an error by the ALJ with respect to one or more 24 factors in a credibility determination may be harmless if the ALJ’s 25 “remaining determination were 26 adequately supported by substantial evidence in the record.” See 27 Carmickle v. Commissioner, 533 F.3d 1155, 1162-63 (9th Cir. 2008); 28 Robbins v. reasoning Soc. Sec. and ultimate Admin., 466 6 credibility F.3d 880, 885 (9th Cir. 2006) 1 (quoting Stout v. Comm’r, 454 F.3d 1050, 1055 (9th Cir. 2006)) (the 2 Court will not reverse the Commissioner’s decision if it is based on 3 harmless error, which exists only when it is “clear from the record 4 that 5 nondisability determination.’”). 6 reasons 7 fully supported by the record. an ALJ’s for error was discrediting ‘inconsequential to the ultimate Here, the ALJ provided acceptable Plaintiff’s testimony, each of which is 8 9 First, the ALJ noted that the findings of Plaintiff’s doctors 10 regarding her mental impairments were inconsistent with her claims of 11 continuing 12 hospitalized 13 suicide, the treatment notes submitted by Christopher E. Berger, M.D. 14 indicate that her symptoms of depression were subsequently controlled 15 with medication. 16 “stable and improving” and Plaintiff reported feeling better after 17 treatment. 18 showed 19 suggested to Plaintiff that she volunteer or do work as a caregiver. 20 (A.R. 21 confirmed no symptoms. 1 debilitating in February 2010 (A.R. 273—75.) and Although September Plaintiff 2011 for was attempting Dr. Berger found that Plaintiff was Moreover, her psychotic episodes were resolved, and she signs 275.) of On these paranoia. April 24, findings, (A.R. 2012, a concluding 273—75.) physician that Dr. at Berger Norton Plaintiff’s even Clinic “depression 22 1 23 24 25 26 27 28 The ALJ may consider objective medical evidence in determining a claimant’s credibility regarding subjective symptom testimony, as long as the ALJ does not reject such testimony solely because it is unsubstantiated by the objective medical evidence. 20 C.F.R. §§ 404.1529(c), 416.929(c); Rollins v. Massanari, 261 F.3d 853, 856, 857 (9th Cir. 2001) (“While subjective pain testimony cannot be rejected on the sole ground that it is not fully corroborated by objective medical evidence, the medical evidence is still a relevant factor in determining the severity of the claimant’s pain and its disabling effects.”). 7 1 [was] under much better control with Dr. Burger [sic] & her new 2 meds.” 3 Unwalla, 4 medications] 5 treatment.” (A.R. 296.) M.D., Furthermore, on October 12, 2012, Khushro found and that seem[ed] to Plaintiff be doing was “adhering well with the [to her current (A.R. 306.) 2 6 7 The ALJ also concluded that Plaintiff stopped working for 8 reasons other than disability, noting that Plaintiff quit her job as 9 a nurse in order to take care of her sick mother. (A.R. 14.) In 10 assessing credibility, an ALJ may consider the fact that a claimant 11 stopped working for reasons other than disability. 12 Massanari, 268 F.3d 824, 828 (9th Cir. 2001). 13 despite her decision to stop working in 2001, she developed a severe 14 medical impairment years later when she was hospitalized in 2010 and 15 2011. 16 17 18 19 20 21 22 23 24 25 26 27 (Joint Stip. 6.) See Bruton v. Plaintiff argues that However, Plaintiff cannot demonstrate that 2 Plaintiff testified at the hearing that after her September 2011 hospitalization, she also sought treatment with a psychiatrist until July 2012 and then a therapist on a weekly basis. (A.R. 25—26; 30—31.) Plaintiff argues that the ALJ should have attempted to obtain the therapist and psychiatrist records which were not present in the medical record. Plaintiff is correct that the ALJ has a duty to fully and fairly develop the record and assure that the claimant’s interests are considered. See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996). However, the therapist and psychiatrist were never mentioned in the disability reports Plaintiff completed, (see A.R. 165—84; 188—203), and Plaintiff has neither suggested nor demonstrated that the missing records contain evidence that Plaintiff’s disability cannot be controlled with medication and treatment. Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1008 (9th Cir. 2006) (“Impairments that can be controlled effectively with medication are not disabling for the purpose of determining eligibility for [disability] benefits.”). Thus, the Court is not persuaded that the ALJ’s failure to obtain these records requires reversal and remand. 28 8 1 these hospitalizations 2 which 3 Plaintiff’s hospital records indicate that her chief complaint was 4 “stress of being unemployed.” 5 Court 6 following 7 Accordingly, 8 determination. prevents noted, resulted Plaintiff from Plaintiff’s the from severe working. As (A.R. 231.) mental hospitalizations. substantial a status (A.R. evidence impairment Defendant notes, Additionally, as the improved 273, supports medical the dramatically 296, 304, 306.) ALJ’s credibility 9 10 B. The ALJ’s Holding That Plaintiff Can Perform The Jobs Such as 11 Small Products Assembler and Garment Folder Is Not Inconsistent 12 With The DOT 13 14 The ALJ determined, based on the testimony of vocational expert 15 (“VE”) Mary Jesko, that Plaintiff is capable of performing the jobs 16 of 17 available in significant numbers in the national economy. 18 18.) 19 ALJ’s holding that the Plaintiff can perform these jobs, because the 20 ALJ determined in his RFC that Plaintiff’s impairments will cause her 21 to miss work 1 to 2 times a month. small parts assembler and garment folder, both of which are (A.R. 17— Plaintiff contends that there is a DOT inconsistency in the (Joint Stip. 25.) 22 23 An ALJ may not rely on a VE’s testimony regarding the 24 requirements of a particular job without first inquiring whether the 25 testimony 26 Massachi v. Astrue, 486 F.3d 1149, 1152—53 (9th Cir. 2007). 27 the ALJ asked the VE whether missing work 1-2 days a month would 28 change his testimony that Plaintiff could perform the jobs of small conflicts with the DOT, 9 and if so, why it conflicts. Here, 1 products assembler and garment folder. (A.R. 40.) The VE responded 2 that 1-2 days “would be an acceptable degree of absence from the 3 workplace, so that would not have an adverse impact.” 4 The VE also testified that his testimony was consistent with the 5 Dictionary of Occupational Titles. (A.R. 41.) (A.R. 40.) 6 7 Accordingly, the ALJ was entitled to rely on the VE’s testimony. 8 See Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (“A VE’s 9 recognized expertise provides the necessary foundation for his or her 10 testimony.”); Lair v. Colvin, No. 5:12-cv-00932—SP, 2013 WL 1247708, 11 *4 (C.D. Cal. Mar. 23, 2013) (“Because the VE testified that there 12 was no conflict between plaintiff’s RFC and the DOT and because 13 Plaintiff’s counsel did not question the VE regarding any alleged 14 inconsistencies between the DOT and plaintiff’s RFC, the ALJ was 15 entitled to rely upon the VE’s testimony.”). 16 ORDER 17 18 19 20 For the foregoing reasons, the decision of the Commissioner is affirmed. 21 22 LET JUDGMENT BE ENTERED ACCORDINGLY. 23 24 Dated: June 15, 2015. 25 26 27 _/s/__________________________ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 28 10

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?