Naomi Jean Bates v. Carolyn W Colvin

Filing 21

MEMORANDUM OPINION by Magistrate Judge Charles F. Eick. Plaintiff's motion for summary judgment is denied and Defendant's motion for summary judgment is granted. LET JUDGMENT BE ENTERED ACCORDINGLY. See Opinion for details. (dml)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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NAOMI JEAN BATES,

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Plaintiff,
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v.
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CAROLYN W. COLVIN, Acting
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Commissioner of Social Security,
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Defendant.
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___________________________________)

NO. ED CV 14-1718-E

MEMORANDUM OPINION

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PROCEEDINGS

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Plaintiff filed a Complaint on August 25, 2014, seeking review of

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the Commissioner’s denial of benefits.

The parties filed a consent to

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proceed before a United States Magistrate Judge on September 29, 2014.

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Plaintiff filed a motion for summary judgment on January 26,

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2015.

Defendant filed a motion for summary judgment on April 27,

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2015.

The Court has taken both motions under submission without oral

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argument.

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See L.R. 7-15; “Order,” filed September 3, 2014.

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BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

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Plaintiff asserted disability since July 20, 2008, based on a

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variety of alleged physical and psychiatric impairments

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(Administrative Record (“A.R.”) 70-81, 104-13, 241-42, 263).

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Following a previous stipulated remand, the Administrative Law Judge

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(“ALJ”) examined the medical record and heard testimony from

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Plaintiff, a medical expert and a vocational expert (A.R. 4-1065).

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The ALJ found Plaintiff has severe “cervical spondylosis, lumbar

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degenerative disc disease of the lumbar spine; asthma; hypothyroidism

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Hashimoto;1 obesity; lupus; fibromyalgia;2 sleep apnea; Sjogren’s

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. . . syndrome3” (A.R. 7).

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Plaintiff retains the residual functional capacity to perform a

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limited range of light work (A.R. 7).

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discounted the credibility of Plaintiff and Plaintiff’s husband (A.R.

The ALJ also found, however, that

In making this finding, the ALJ

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“In Hashimoto’s disease, also known as chronic
lymphocytic thyroiditis, a person’s immune system attacks his or
her thyroid gland, and the resulting inflammation often leads to
an underactive thyroid, also known as hypothyroidism. Treatment
of Hashimoto’s disease with thyroid hormone replacement is
usually simple and effective.” Bertel v. Astrue, 2012 WL
3679201, at *7 n.12 (D. Nev. July 30, 2012), adopted, 2012 WL
3562547 (D. Nev. Aug. 17, 2012) (citations and quotations
omitted).
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Fibromyalgia has been described as “a common, but
elusive and mysterious, disease” whose “symptoms are entirely
subjective.” Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir.
1996). “Some people may have such a severe case of fibromyalgia
as to be totally disabled from working; but most do not.” Id.
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“Sjogren is an autoimmune disease causing dryness of
the mouth, eyes and other tissues.” Rohrbach v. Colvin, 2015 WL
1006678, at *5 n.4 (C.D. Cal. March 5, 2015).
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8-9).

In reliance on the testimony of the vocational expert, the ALJ

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determined that there exist significant numbers of jobs performable by

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a person having the identified residual functional capacity (A.R. 11-

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13).

The ALJ therefore denied disability benefits (A.R. 13-14).

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STANDARD OF REVIEW

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Under 42 U.S.C. section 405(g), this Court reviews the
Administration’s decision to determine if: (1) the Administration’s

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findings are supported by substantial evidence; and (2) the

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Administration used correct legal standards.

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Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue,

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499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner,

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682 F.3d 1157, 1161 (9th Cir. 2012).

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relevant evidence as a reasonable mind might accept as adequate to

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support a conclusion.”

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(1971) (citation and quotations omitted); see Widmark v. Barnhart, 454

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F.3d 1063, 1066 (9th Cir. 2006).

See Carmickle v.

Substantial evidence is “such

Richardson v. Perales, 402 U.S. 389, 401

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If the evidence can support either outcome, the court may

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not substitute its judgment for that of the ALJ.

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Commissioner’s decision cannot be affirmed simply by

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isolating a specific quantum of supporting evidence.

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Rather, a court must consider the record as a whole,

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weighing both evidence that supports and evidence that

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detracts from the [administrative] conclusion.

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But the

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Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and

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quotations omitted).

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DISCUSSION

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After consideration of the record as a whole, Defendant’s motion

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is granted and Plaintiff’s motion is denied.

The Administration’s

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findings are supported by substantial evidence and are free from

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material4 legal error.

Plaintiff’s contrary arguments are unavailing.

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I.

Substantial Evidence Supports the Conclusion Plaintiff Can Work.

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The medical evidence provides little support for Plaintiff’s

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claim of disability and substantial support for the ALJ’s rejection of

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that claim.

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disability revealed little or no objective basis for many of

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Plaintiff’s subjective complaints (A.R. 396 (normal CT head scan in

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September of 2008); 397 (normal x-ray of right hand in September of

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2008); 399 (normal chest x-ray in June of 2008); 512-14 (normal EEG in

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January of 2010); 515-16 (normal EEG in October of 2009); 517-19

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(normal EEG in September of 2009); 520-21 (normal EKG in August of

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2009); 531 (normal chest x-ray in March of 2010); 535 (normal cervical

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spine x-ray in November of 2009); 536 (normal MRI of head in September

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of 2009); 635 (normal colonoscopy in March of 2011); 636-37 (normal

Extensive medical testing during the alleged period of

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The harmless error rule applies to the review of
administrative decisions regarding disability. See Garcia v.
Commissioner, 768 F.3d 925, 932-33 (9th Cir. 2014); McLeod v.
Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart,
400 F.3d 676, 679 (9th Cir. 2005).
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endoscopy in March of 2011); 640-41 (normal x-rays of hands, wrists,

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pelvis and hips in June of 2011); 979 (normal pelvic ultrasound in

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June of 2013); 1038 (normal CT of head in March of 2010)).

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Plaintiff claimed she quit work in 2008 because of, inter alia,

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problems with her lungs (A.R. 104).

Plaintiff has had asthma since

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childhood, however, and her treatment records show that her asthma was

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stable without acute flare-ups as of November of 2008 (A.R. 333, 370).

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Plaintiff complains of symptoms allegedly related to autoimmune

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problems (including Sjogren’s syndrome).

Plaintiff’s treating

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rheumatologist did not believe that Sjogren’s syndrome or any other

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alleged autoimmune problems disabled Plaintiff from employment (A.R.

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352).

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Cervical spine and lumbar spine CT scans and MRIs did show some

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disc desiccation, some mild degenerative changes, some disc protrusion

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and mild disc bulges (A.R. 532-34, 606, 972-74, 1049).

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most recent lumbar spine MRI in July of 2013 actually shows

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improvement over the previous MRI, however (A.R. 976-77).

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Plaintiff’s treating physicians appear to have opined that any of

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these alleged orthopedic problems would disable Plaintiff from all

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employment.

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Plaintiff retains a residual functional capacity consistent with the

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capacity the ALJ found to exist (A.R. 87-92).

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physicians concurred (A.R. 551-60, 584-93).

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opinions of non-examining physicians do not contradict “all other

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evidence in the record,” an ALJ properly may rely on these opinions.

Plaintiff’s

None of

Dr. Chukwuemeka Ezike, the medical expert, opined

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The state agency
Where, as here, the

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See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995); Curry v.

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Sullivan, 925 F.2d 1127, 1130 n.2 (9th Cir. 1990).

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With respect to Plaintiff’s alleged psychiatric problems,

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examining psychiatrist Dr. Linda Smith opined in October of 2009 that

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Plaintiff had no psychiatric impairment of her ability to work (A.R.

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562-69).

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to claim to have ‘PTSD’ but I do not see any evidence of this.

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appears she is attempting to claim that she might disassociate at

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times, but she really cannot describe this either in any credible

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fashion” (A.R. 568).

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Plaintiff has no significant mental impairment (A.R. 570-83).

Dr. Smith also stated that “[i]t appears she is attempting
It

State agency physicians similarly opined

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Although some of the evidence appears to be in conflict, it is

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the prerogative of the ALJ to resolve conflicts in the record.

See

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Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001).

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susceptible to more than one rational interpretation,” the Court must

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uphold the administrative decision.

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at 1039-40; accord Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.

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2002); Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997).

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Court will uphold the ALJ’s rational interpretation of the evidence in

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the present case notwithstanding any conflicts in the record.

When evidence “is

See Andrews v. Shalala, 53 F.3d

The

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The vocational expert testified that a person with the residual

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functional capacity the ALJ found to exist could perform jobs existing

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in significant numbers in the national economy (A.R. 92-98).

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vocational expert’s testimony furnishes substantial evidence there

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exist significant numbers of jobs Plaintiff can perform.
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The

See Burkhart

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v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988); see also Barker v.

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Secretary, 882 F.2d 1474, 1478-80 (9th Cir. 1989); see generally

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Johnson v. Shalala, 60 F.3d 1428, 1435-36 (9th Cir. 1995) (ALJ

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properly may rely on vocational expert to identify jobs claimant can

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perform); 42 U.S.C. § 423(d)(2)(A).

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II.

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The ALJ Did Not Materially Err in Discounting the Credibility of
Plaintiff or Plaintiff’s Husband.

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

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“great weight.”

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

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

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here, the ALJ finds that the claimant’s medically determinable

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impairments reasonably could be expected to cause some degree of the

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alleged symptoms of which the claimant subjectively complains, any

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discounting of the claimant’s complaints must be supported by

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specific, cogent findings.

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(9th Cir. 2010); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995);

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but see Smolen v. Chater, 80 F.3d 1273, 1282-84 (9th Cir. 1996)

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(indicating that ALJ must offer “specific, clear and convincing”

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reasons to reject a claimant’s testimony where there is no evidence of

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Where, as

See Berry v. Astrue, 622 F.3d 1228, 1234

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malingering).5

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specific to allow a reviewing court to conclude the ALJ rejected the

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claimant’s testimony on permissible grounds and did not arbitrarily

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discredit the claimant’s testimony.”

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882, 885 (9th Cir. 2004) (internal citations and quotations omitted);

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see also Social Security Ruling 96-7p.

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stated sufficient reasons for deeming Plaintiff’s subjective

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complaints less than fully credible.

An ALJ’s credibility findings “must be sufficiently

See Moisa v. Barnhart, 367 F.3d

As discussed below, the ALJ

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In discounting Plaintiff’s credibility, the ALJ placed principal

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reliance on perceived inconsistencies between Plaintiff’s allegedly

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incapacitating symptomatology and her daily activities (A.R. 8-9).

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With regard to her alleged symptomatology, Plaintiff claimed: she must

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spend “90 percent” of her time in bed in her pajamas; she suffers pain

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everywhere in her body; she wakes up “with swollen body parts and

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cannot use them”; she cannot put on her socks and shoes or button her

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clothes on her own; she drops things regularly and falls down

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regularly; she has panic attacks; and she exists in a constant state

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of anxiety (A.R. 75, 78-79, 106, 108-09, 263).

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reflects a wide range of daily activities inconsistent with the

Yet, the record

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In the absence of an ALJ’s reliance on evidence of
“malingering,” most recent Ninth Circuit cases have applied the
“clear and convincing” standard. See, e.g., Burrell v. Colvin,
775 F.3d 1133, 1136-37 (9th Cir. 2014); Chaudhry v. Astrue, 688
F.3d 661, 670, 672 n.10 (9th Cir. 2012); Molina v. Astrue, 674
F.3d 1104, 1112 (9th Cir. 2012); Taylor v. Commissioner, 659 F.3d
1228, 1234 (9th Cir. 2011); see also Ballard v. Apfel, 2000 WL
1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting earlier
cases). In the present case, the ALJ’s findings are sufficient
under either standard, so the distinction between the two
standards (if any) is academic.
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incapacity Plaintiff claims.

For example, during all of part of the

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alleged period of disability, Plaintiff took care of her grandson for

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four hours each day, swept, dusted, did dishes, cooked for and looked

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after her 17 year old son, and shopped for groceries two to three

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hours at a time (A.R. 274-76, 1008).

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inconsistencies between Plaintiff’s claims and her demonstrated

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activities in discounting Plaintiff’s credibility.

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v. Astrue, 499 Fed. App’x 701, 703 (9th Cir. 2012) (ALJ properly

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discredited pain allegations as contradicting claimant’s testimony

The ALJ properly relied on the

See, e.g., Thune

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that she gardened, cleaned, cooked, and ran errands); Stubbs-Danielson

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v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008) (claimant’s “normal

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activities of daily living, including cooking, house cleaning, doing

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laundry, and helping her husband in managing finances” was sufficient

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explanation for rejecting claimant’s credibility); Burch v. Barnhart,

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400 F.3d 676, 680 (9th Cir. 2005) (“In determining credibility, an ALJ

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may engage in ordinary techniques of credibility evaluation, such as

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considering . . . inconsistencies in claimant’s testimony.”).

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Accordingly, the ALJ stated sufficient reasons to allow this

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Court to conclude that the ALJ discounted Plaintiff’s credibility on

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permissible grounds.

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Court therefore defers to the ALJ’s credibility determination.

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Lasich v. Astrue, 252 Fed. App’x 823, 825 (9th Cir. 2007) (court will

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defer to ALJ’s credibility determination when the proper process is

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used and proper reasons for the decision are provided); accord Flaten

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v. Secretary of Health & Human Services, 44 F.3d 1453, 1464 (9th Cir.

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1995).

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See Moisa v. Barnhart, 367 F.3d at 885.

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The
See

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The ALJ also properly discounted the credibility of Plaintiff’s

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husband.

As the ALJ pointed out, the husband’s statements “mirrored

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the claimant’s allegations” (A.R. 9; see A.R. 281-88).

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discount lay witness statements where the statements are similar to

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the claimant’s testimony and the ALJ has given legally sufficient

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reasons for discounting the claimant’s testimony.

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Commissioner Social Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009)

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(“In light of our conclusion that the ALJ provided clear and

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convincing reasons for rejecting Valentine’s own subjective

An ALJ may

See Valentine v.

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complaints, and because Ms. Valentine’s testimony was similar to such

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complaints, it follows that the ALJ gave germane reasons for rejecting

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her testimony”).

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testimony was proper, the ALJ’s discounting of the husband’s similar

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statements was also proper.

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Because the ALJ’s discounting of Plaintiff’s

See id.

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CONCLUSION

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For all of the foregoing reasons,6 Plaintiff’s motion for summary

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judgment is denied and Defendant’s motion for summary judgment is

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granted.

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATED: May 14, 2015.

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______________/S/_________________
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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The Court has considered and rejected each of
Plaintiff’s arguments. Neither Plaintiff’s arguments nor the
circumstances of this case show any “substantial likelihood of
prejudice” resulting from any error allegedly committed by the
Administration. See generally McLeod v. Astrue, 640 F.3d 881,
887-88 (9th Cir. 2011) (discussing the standards applicable to
evaluating prejudice).
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