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)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA-EASTERN DIVISION

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) No. CV 13-1583-AS
)
)
Plaintiff,
) MEMORANDUM OPINION
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of the
)
Social Security Administration, )
)
Defendant.
)
)
SYLVIA CEBALLOS,

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PROCEEDINGS

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On

September

11,

2013,

Plaintiff

filed

a

Complaint

seeking

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review of the denial of her application for Social Security benefits.

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(Docket Entry No. 1.)

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United States Magistrate Judge.

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January 10, 2014, Defendant filed an Answer to the Complaint along

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with the Administrative Record (“A.R.”).

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The parties filed a Joint Stipulation (“Joint Stip.”) on July 2,

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2014, setting forth their respective positions on Plaintiff’s claim.

The parties consented to proceed before a
(Docket Entry Nos. 8, 10.)

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1

On

(Docket Entry Nos. 13, 14.)

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(Docket

Entry

No.

20.)

The

Court

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submission without oral argument.

has

taken

the

matter

under

See C.D. Cal. L.R. 7-15.

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BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

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On

February

1,

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Supplemental

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Plaintiff alleged an inability to work since February 11, 2010 due to

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severe

Social

depression,

2012,

Plaintiff

Security

paranoia,

(A.R. 166.)

Income

suicidal

filed

an

application

(“SSI”).

tendencies,

(A.R.

and

for

142—47.)

homicidal

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tendencies.

On April 2, 2013, the Administrative Law

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Judge (“ALJ”), Mason D. Harrell, Jr., examined the record and heard

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testimony from Plaintiff and vocational expert Mary Jesko.

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42.)

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application.

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following severe impairments: depression and obesity.

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However, the ALJ found that Plaintiff was not disabled within the

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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.)

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Plaintiff requested that the Appeals Council review the ALJ’s

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decision.

(A.R. 14—15.)

The request was denied on July 19, 2013.

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(A.R. 1—4.)

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Commissioner, allowing this Court to review the decision.

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U.S.C. §§ 405(g); 1383(c).

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/ /

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/ /

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/ /

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/ /

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/ /

The ALJ’s decision then became the final decision of the

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See 42

PLAINTIFF’S CONTENTIONS

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Plaintiff alleges that the ALJ erred in: (1) discounting the

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credibility of Plaintiff’s testimony and subjective complaints in

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support of her disability claim, and (2) finding an inconsistency

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between the Dictionary of Occupational Titles (“DOT”) and the ALJ’s

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holding that the Plaintiff can perform the jobs of small products

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assembler and garment folder.

(Joint Stip. 3.)

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DISCUSSION

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A.

The ALJ Did Not Err In Evaluating Plaintiff’s Credibility

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

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“great weight.”

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

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

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“[T]he ALJ is not required to believe every allegation of disabling

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pain, or else disability benefits would be available for the asking,

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a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).”

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Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012).

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whether a claimant’s testimony is credible, the ALJ engages in a two-

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step analysis.

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2014).

Molina v.

In order to determine

Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir.

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First, the claimant “must produce objective medical evidence of

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an

underlying

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produce the pain or other symptoms alleged.’”

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947

F.2d

impairment

341,

344

‘which

(9th

could

Cir.
3

reasonably

1991)

be

expected

to

Bunnell v. Sullivan,
(quoting

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U.S.C.

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§ 423(d)(5)(A)(1988)).

In

producing

evidence

of

the

underlying

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impairment, “the claimant need not produce objective medical evidence

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of the pain or fatigue itself, or the severity thereof.”

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Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).

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“need only show that [the impairment] could reasonably have caused

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some degree of the symptom.”

Smolen v.

Instead, the claimant

Id.

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Second, once the claimant has produced the requisite objective
medical

evidence,

the

“ALJ

may

reject

the

claimant’s

testimony

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regarding the severity of her symptoms.”

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Absent affirmative evidence of malingering, however, the ALJ may only

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reject

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convincing reasons for doing so.”

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alleged symptoms, an ALJ may consider: “(1) ordinary techniques of

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credibility

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prior

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testimony by the claimant that appears to be less than candid; (2)

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unexplained or inadequately explained failure to seek treatment or to

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follow a prescribed course of treatment; and (3) the claimant’s daily

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activities.”

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record

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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.

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Here,

the

ALJ

examined

the

Administrative

Record

and

heard

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testimony from Plaintiff.

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that Plaintiff had produced objective medical evidence of underlying

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impairments that “could reasonably be expected to cause some of the

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alleged

symptoms.”

(A.R.

Based on the record, the ALJ determined

14.)

However,
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the

ALJ

found

that

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Plaintiff’s

“statements

concerning

the

intensity,

persistence

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limiting effects of these symptoms are not entirely credible.”

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and

14.)

(A.R.

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The Court agrees with Plaintiff that some of the ALJ’s reasons

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for discounting her testimony were not clear and convincing.

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example, the ALJ found that Plaintiff’s description of her symptoms

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were

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otherwise make it more convincing.”

“vague

and

general,

lacking

the

specificity,

(A.R. 14.)

which

For

might

However, the ALJ

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failed to specifically identify what testimony he found not credible.

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See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (“the ALJ

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must

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undermines the claimant’s complaints.”) (quoting Lester v. Chater, 81

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F.3d 821, 834 (9th Cir. 1995)).

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finding, Plaintiff testified that she “paces a lot, get[s] agitated,

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and anxious,” that she sees hallucinations and hears voices talking

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to her, and that she thinks people are conspiring against her.

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31—32.)

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paranoid, anxious, agitated, and borderline aggressive.

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Plaintiff also stated that she tried to kill her sister and another

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male

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testimony, the Court finds that Plaintiff has described her symptoms

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with

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convincing reason to discredit Plaintiff’s testimony.

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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,

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The

ALJ

also

discredited

Plaintiff’s

credibility

Plaintiff’s description of her daily activities.
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based

on

Orn v. Astrue, 495

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F.3d 625, 639 (9th Cir. 2007) (“[D]aily activities may be grounds for

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an adverse credibility finding if a claimant is able to spend a

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substantial part of his day engaged in pursuits involving performance

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of physical functions that are transferable to a work setting.”)

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ALJ noted that Plaintiff indicated she could take care of hygiene and

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perform self-care, cook, do chores, and follow safety precautions.

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(A.R. 14.)

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abilities and social interactions required in order to perform these

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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

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like

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attendance, club activities, or social programs to be substantial

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gainful activities.”

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2001).

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be disabled.”

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2001) (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).

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Here, Plaintiff’s reported daily activities are not indicative of her

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ability to work and do not detract from her subjective complaints.

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Thus, the ALJ erred in discrediting Plaintiff because she was engaged

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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.

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Nevertheless, an error by the ALJ with respect to one or more

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factors in a credibility determination may be harmless if the ALJ’s

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“remaining

determination

were

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adequately supported by substantial evidence in the record.”

See

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Carmickle v. Commissioner, 533 F.3d 1155, 1162-63 (9th Cir. 2008);

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Robbins

v.

reasoning

Soc.

Sec.

and

ultimate

Admin.,

466
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credibility

F.3d

880,

885

(9th

Cir.

2006)

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(quoting Stout v. Comm’r, 454 F.3d 1050, 1055 (9th Cir. 2006)) (the

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Court will not reverse the Commissioner’s decision if it is based on

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harmless error, which exists only when it is “clear from the record

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that

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nondisability determination.’”).

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reasons

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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

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First, the ALJ noted that the findings of Plaintiff’s doctors

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regarding her mental impairments were inconsistent with her claims of

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continuing

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hospitalized

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suicide, the treatment notes submitted by Christopher E. Berger, M.D.

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indicate that her symptoms of depression were subsequently controlled

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with medication.

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“stable and improving” and Plaintiff reported feeling better after

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treatment.

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showed

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suggested to Plaintiff that she volunteer or do work as a caregiver.

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(A.R.

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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

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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.”).
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[was] under much better control with Dr. Burger [sic] & her new

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meds.”

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Unwalla,

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medications]

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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

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The

ALJ

also

concluded

that

Plaintiff

stopped

working

for

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reasons other than disability, noting that Plaintiff quit her job as

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a nurse in order to take care of her sick mother.

(A.R. 14.)

In

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assessing credibility, an ALJ may consider the fact that a claimant

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stopped working for reasons other than disability.

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

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despite her decision to stop working in 2001, she developed a severe

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medical impairment years later when she was hospitalized in 2010 and

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2011.

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(Joint Stip. 6.)

See Bruton v.

Plaintiff argues that

However, Plaintiff cannot demonstrate that

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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.

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8

1

these

hospitalizations

2

which

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Plaintiff’s hospital records indicate that her chief complaint was

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“stress of being unemployed.”

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Court

6

following

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Accordingly,

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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

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B.

The ALJ’s Holding That Plaintiff Can Perform The Jobs Such as

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Small Products Assembler and Garment Folder Is Not Inconsistent

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With The DOT

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The ALJ determined, based on the testimony of vocational expert

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(“VE”) Mary Jesko, that Plaintiff is capable of performing the jobs

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of

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available in significant numbers in the national economy.

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18.)

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ALJ’s holding that the Plaintiff can perform these jobs, because the

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ALJ determined in his RFC that Plaintiff’s impairments will cause her

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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.)

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An

ALJ

may

not

rely

on

a

VE’s

testimony

regarding

the

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requirements of a particular job without first inquiring whether the

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testimony

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Massachi v. Astrue, 486 F.3d 1149, 1152—53 (9th Cir. 2007).

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the ALJ asked the VE whether missing work 1-2 days a month would

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change his testimony that Plaintiff could perform the jobs of small

conflicts

with

the

DOT,

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and

if

so,

why

it

conflicts.
Here,

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products assembler and garment folder.

(A.R. 40.)

The VE responded

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that 1-2 days “would be an acceptable degree of absence from the

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workplace, so that would not have an adverse impact.”

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The VE also testified that his testimony was consistent with the

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Dictionary of Occupational Titles.

(A.R. 41.)

(A.R. 40.)

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Accordingly, the ALJ was entitled to rely on the VE’s testimony.

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See Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (“A VE’s

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recognized expertise provides the necessary foundation for his or her

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testimony.”); Lair v. Colvin, No. 5:12-cv-00932—SP, 2013 WL 1247708,

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*4 (C.D. Cal. Mar. 23, 2013) (“Because the VE testified that there

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was no conflict between plaintiff’s RFC and the DOT and because

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Plaintiff’s counsel did not question the VE regarding any alleged

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inconsistencies between the DOT and plaintiff’s RFC, the ALJ was

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entitled to rely upon the VE’s testimony.”).

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ORDER

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

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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Dated: June 15, 2015.

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_/s/__________________________
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

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