Pena Peery v. Carolyn W. Colvin

Filing 20

MEMORANDUM OPINION AND ORDER by Magistrate Judge Rozella A. Oliver AFFIRMING the decision of the Commissioner denying benefits. (sbu)

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03/20/17

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Plaintiff,

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Case No. CV 16-01203-RAO

RENA PEERY,

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v.

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

MEMORANDUM OPINION AND
ORDER

Defendant.

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I.

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Plaintiff Rena Peery (“Plaintiff”) challenges the Commissioner’s denial of
her application for supplemental security income benefits (“SSI”). For the reasons
stated below, the decision of the Commissioner is AFFIRMED.
II.

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INTRODUCTION

PROCEEDINGS BELOW
On November 13, 2012, Plaintiff protectively applied for supplemental

security income (“SSI”) under Title XVI of the Social Security Act (the “Act”). In
her application, Plaintiff alleged disability beginning on January 10, 1995. (AR 13,
164.)

Plaintiff’s claims were initially denied on May 6, 2013, and upon

reconsideration on October 31, 2013. (Id. at 13, 88-92, 94-99.) Plaintiff then filed

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a written request for a hearing. A hearing was held on December 9, 2014, in San

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Bernardino, California, at which Plaintiff testified. (Id. 13, 26-62.) An impartial

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vocational expert (“VE”) also testified at the hearing. (Id.) On January 27, 2015,

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the ALJ found that Plaintiff had not been under a disability, pursuant to the Social

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Security Act,1 from November 13, 2012, through the date of the decision. (Id. at

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22.) The ALJ’s decision became the Commissioner’s final decision when the

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Appeals Council denied Plaintiff’s request for review. (Id. at 1-6.) Plaintiff filed

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this action on June 8, 2016. (Dkt. No. 1.)

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The ALJ followed a five-step sequential evaluation process to assess whether

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Plaintiff was disabled under the Social Security Act. Lester v. Chater, 81 F.3d 821,

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828 n.5 (9th Cir. 1995). At step one, the ALJ found that Plaintiff had not engaged

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in substantial gainful activity since November 13, 2012, the application date. (AR

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15.) At step two, the ALJ found that Plaintiff had the severe impairments of spinal

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disorder, chronic pulmonary insufficiency, recurrent arrhythmias, headaches, and a

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gastric disorder. (Id.) At step three, the ALJ found that Plaintiff “does not have an

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impairment or combination of impairments that meets or medically equals the

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severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix

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1.” (Id. at 16.)
Before proceeding to step four, the ALJ found that Plaintiff has the residual

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functional capacity (“RFC”) to:

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[P]erform light work as defined in 20 CFR 416.967(b). Specifically,
she can lift and/or carry 20 pounds occasionally and 10 pounds
frequently; she can push and/or pull within those weight limits; she
can stand and/or walk six hours in an eight-hour day; she can sit six
hours in an eight-hour day; she is limited to frequent handling and
fingering with the bilateral upper extremities; she must avoid

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Persons are “disabled” for purposes of receiving Social Security benefits if they
are unable to engage in any substantial gainful activity owing to a physical or
mental impairment expected to result in death, or which has lasted or is expected to
last for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A).
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concentrated exposure to extreme cold and extreme heat; she must
avoid concentrated exposure to respiratory irritants, such [as] fumes
dusts, odors, gases, or poor ventilation; and she must avoid
concentrated exposure to work place hazards, such as unprotected
heights, operating fast or dangerous machinery, or driving commercial
vehicles. In addition, due to her level of education and her complaints
of chronic pain and headaches, she is limited to non-complex tasks
and routine work that is not fast-paced and does not require
hypervigilance.

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(Id. at 16.)

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At step four, the ALJ found that Plaintiff has no past relevant work. (AR

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20.) At step five, the ALJ found that there are jobs that exist in significant numbers

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in the national economy that Plaintiff can perform. (Id. at 23.) Accordingly, the

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ALJ found that Plaintiff “has not been under a disability . . . since November 13,

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2012, the date the application was filed.” (Id. at 23-24.)

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III.

STANDARD OF REVIEW

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

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decision to deny benefits. A court must affirm an ALJ’s findings of fact if they are

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supported by substantial evidence, and if the proper legal standards were applied.

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Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). “‘Substantial evidence’

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means more than a mere scintilla, but less than a preponderance; it is such relevant

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evidence as a reasonable person might accept as adequate to support a conclusion.”

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Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Robbins v. Soc.

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Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). An ALJ can satisfy the substantial

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evidence requirement “by setting out a detailed and thorough summary of the facts

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and conflicting clinical evidence, stating his interpretation thereof, and making

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findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citation omitted).

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“[T]he Commissioner’s decision cannot be affirmed simply by isolating a

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specific quantum of supporting evidence. Rather, a court must consider the record

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as a whole, weighing both evidence that supports and evidence that detracts from

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the Secretary’s conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir.
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2001) (citations and internal quotations omitted). “‘Where evidence is susceptible

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to more than one rational interpretation,’ the ALJ’s decision should be upheld.”

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Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing Burch v.

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Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)); see also Robbins, 466 F.3d at 882

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(“If the evidence can support either affirming or reversing the ALJ’s conclusion, we

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may not substitute our judgment for that of the ALJ.”). The Court may review only

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“the reasons provided by the ALJ in the disability determination and may not affirm

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the ALJ on a ground upon which he did not rely.” Orn v. Astrue, 495 F.3d 625, 630

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(9th Cir. 2007) (citing Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)).

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IV.

DISCUSSION
Plaintiff raises two issues in her appeal: (1) whether the ALJ’s RFC

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assessment is supported by substantial evidence; and (2) whether the ALJ properly

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considered Plaintiff’s subjective complaints and properly assessed her credibility.

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A. ALJ’s RFC Assessment

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Plaintiff argues that the ALJ “either ignored and/or mischaracterized”

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evidence regarding postural and environmental limitations, evidence which

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(Plaintiff contends) would support a significantly more limited RFC than that found

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by the ALJ in her decision. (Joint Stip. at 4-6.) The Commissioner contends that

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Plaintiff has failed to preserve the issue on appeal and, alternatively, any error was

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harmless. (Id. at 7-8.)

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1. Evidence Regarding Postural and Environmental Limitations

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Dr. Concepcion Enriquez, a consultative examiner, examined Plaintiff in

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April 2013 and assessed, inter alia, the following postural and environmental

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limitations: “The patient should avoid exposure to extreme temperatures, dust,

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chemicals and fumes. The patient should avoid unprotected heights and operation

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of dangerous machines. The patient can still do frequent bending, stooping, and

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twisting.” (AR 238.)

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Dr. J. Hartman, a state agency reviewing physician, assessed postural

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limitations restricting Plaintiff to occasional climbing of ramps, stairs, ladders,

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ropes, scaffolds and to frequent balancing, stooping, kneeling, crouching, and

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crawling. (AR 69.) Dr. Hartman also assessed environmental limitations,

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including among others, “avoid[ing] even moderate exposure” to “fumes, odors,

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dusts, gases, poor ventilation, etc.” (AR 70.)

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Dr. D. Rose, another state agency reviewing physician, also assessed

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postural limitations of occasional climbing ramps, stairs, ladders, ropes, scaffolds;

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occasional kneeling, crouching and crawling; and frequent balancing and stooping.

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(AR 81.) With respect to environmental limitations, Dr. Rose opined that Plaintiff

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should “avoid concentrated exposure” to “fumes, odors, dusts, gases, poor

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ventilation, etc.” (AR 82.)

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2. Discussion

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An ALJ is obligated to consider medical opinions of record, resolve conflicts,

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and analyze evidence. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989); 20

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C.F.R. § 404.1527(c).

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Plaintiff is correct that the ALJ did not mention the medical opinions

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described above in her decision. “Where an ALJ does not explicitly reject a

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medical opinion or set forth specific, legitimate reasons for crediting one medical

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opinion over another, he errs.” Garrison v. Colvin, 759 F.3d 995, 1012-13 (9th Cir.

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2014) (internal citation omitted); see also Lingenfelter, 504 F.3d at 1038 n.10 (an

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ALJ may not “avoid the [ ] requirements” of providing specific and legitimate

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reasons for rejecting a doctor’s opinion “simply by not mentioning the treating

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physician’s opinion.”)

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The Commissioner argues that Plaintiff has failed to preserve this issue on

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appeal because Plaintiff, who was represented by counsel at the administrative

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proceedings, did not object to the hypothetical questions posed to the VE by the

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ALJ. Alternatively, the Commissioner argues harmless error. With respect to its
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waiver argument, the Commissioner cites generally to Meanel v. Apfel, 172 F.3d

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1111, 1115 (9th Cir. 1999), but otherwise does not develop this argument.2

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Because the Court finds any error harmless, it does not resolve the issue of waiver.

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Based on the hypothetical questions posed, the VE opined that the

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hypothetical individual with Plaintiff’s education and limitations could perform

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jobs such as battery inspector, cashier, and small products assembler. (AR 60.)

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The Commissioner argues that the Dictionary of Occupational Titles (DOT)

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descriptions for the three jobs identified by the VE do not require postural

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movements or exposure to environmental conditions. (Joint Stip. at 8.) The

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Court’s review of the DOT job descriptions for the three jobs specified by the VE

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confirms that these jobs do not implicate the postural or environmental limitations

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Plaintiff contends should have been included in her RFC. See DICOT 727.687-066

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(battery inspector), 211.462-010 (cashier II), 706.684-022 (small products

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assembler). “From this it follows that the [VE’s] answer to the hypothetical

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question would not have been different” even if the postural and environmental

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limitations “had been included as a part of the question.” McGarrah v. Colvin, 650

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F. App’x 480 (9th Cir. 2016). Plaintiff supplies no argument in opposition to the

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Commissioner’s harmless error doctrine.

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In addition to Meanel, the Commissioner cites to Gutierrez v. Colvin, 740 F.3d
519, 527 (9th Cir. 2014), in support of its waiver argument. Neither the Ninth
Circuit nor the district court in Gutierrez addressed the issue of waiver in their
respective decisions, but instead resolved claimant’s claim on the merits. While the
appellate court noted “that Gutierrez did not challenge the VE’s testimony
regarding the number of jobs available to him in California” and “did not explore
with the VE where those jobs were in relation to his domicile,” the Ninth Circuit
did not, in fact, discuss the issue of waiver. Similarly, the district court’s order
denying Gutierrez’s appeal did not discuss the issue of waiver, but instead
addressed Gutierrez’s claim on the merits. Accordingly, the Court finds the Ninth
Circuit’s decision in Gutierrez is inapposite.
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Accordingly, because the alleged mistake in the ALJ’s RFC assessment does

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not “negate the validity of the ALJ’s ultimate conclusion,” any error was harmless.

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Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012).

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B. ALJ’s Evaluation of Plaintiff’s Testimony and Credibility Findings

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Plaintiff argues that the ALJ’s findings failed to provide legitimate reasons

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for rejecting Plaintiff’s consistent complaints of disabling headaches. (Joint Stip. at

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9-11.) The Commissioner argues that the ALJ’s reasons are supported by

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substantial evidence. (Id. at 12-14.)

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1. Plaintiff’s Testimony Regarding Headaches
At the administrative hearing, Plaintiff testified regarding the problems she

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had with headaches. (AR 45-47.) She described that she had headaches two or

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three times per week, each lasting no more than an hour. (AR 46). Plaintiff

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testified that she is nauseated and vomiting during these episodes and that the

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headaches affect her vision. (Id.) Plaintiff described seeking treatment at

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emergency rooms for her headaches. Plaintiff also stated that she takes Maxalt (10

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mg) to treat the headaches and that the medication sometimes helps the headaches

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go away and, at a minimum, helps keep the headaches to under an hour in duration.

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(AR 46-47.)

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2. Applicable Legal Standards

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“In assessing the credibility of a claimant’s testimony regarding subjective

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pain or the intensity of symptoms, the ALJ engages in a two-step

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analysis.” Molina, 674 F.3d at 1112 (citing Vasquez v. Astrue, 572, F.3d 586, 591

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(9th Cir. 2009)).

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presented objective medical evidence of an underlying impairment which could

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reasonably be expected to produce the pain or other symptoms alleged.” Treichler

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v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (2014) (quoting Lingenfelter,

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504 F.3d at 1036) (internal quotation marks omitted). If so, and if the ALJ does not

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find evidence of malingering, the ALJ must provide specific, clear and convincing

“First, the ALJ must determine whether the claimant has

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reasons for rejecting a claimant’s testimony regarding the severity of his

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symptoms. Id. The ALJ must identify what testimony was found not credible and

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explain what evidence undermines that testimony. Holohan v. Massanari, 246 F.3d

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1195, 1208 (9th Cir. 2001). “General findings are insufficient.” Lester, 81 F.3d at

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834.

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3. Discussion

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“After careful consideration of the evidence,” the ALJ found that Plaintiff’s

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“medically determinable impairments could reasonably be expected to cause the

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alleged symptoms;” but found that Plaintiff’s “statements concerning the intensity,

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persistence and limiting effects of these symptoms are not entirely credible for the

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reasons explained in this decision.” (AR 17.) The ALJ relied on the following

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reasons: (1) lack of supporting objective evidence; (2) conservative treatment; and

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(3) inconsistent statements. (Id. at 17, 19.) No malingering allegation was made,

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and therefore, the ALJ’s reasons must be “clear and convincing.”
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Conservative Treatment

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In her decision, the ALJ discounted Plaintiff’s credibility because “the

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treatment notes documented minimal findings and conservative treatment only.”

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(AR 17.) An ALJ may discount a claimant’s credibility based on routine and

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conservative treatment. See Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007)

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(evidence of conservative treatment is sufficient to discount a claimant’s testimony

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regarding severity of an impairment); see also Meanel, 172 F.3d at 1114 (rejecting

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plaintiff’s complaint “that she experienced pain approaching the highest level

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imaginable” as “inconsistent with the ‘minimal, conservative treatment’ that she

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received”).

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In her testimony, Plaintiff testified that her headaches were treated with

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Maxalt and, while she still gets headaches, she indicated that the Maxalt has been

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successful in helping reduce the length of the headaches and helps prevent the onset

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of the headache. The medical records reflect that Plaintiff was given Zofran to help
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with nausea and vomiting during a November 2013 emergency room visit caused

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by Plaintiff’s headache. (AR 19, 478.) According to Plaintiff’s own testimony, the

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headache medication helps to control the severity of the headaches she experiences.

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See Warre v. Comm’r, Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006)

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(stating that “[i]mpairments that can be controlled effectively with medication are

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not disabling for purposes of determining eligibility for SSI benefits.”).

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Based on the record as a whole, substantial evidence supports the ALJ’s

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determination that Plaintiff’s treatment was conservative. Simmons v. Colvin, 2014

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WL 2215863, at *5 (C.D. Cal. May 29, 2014) (affirming ALJ’s conservative

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treatment finding where plaintiff took, at various times, no medication, Tylenol

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Extra Strength, prescription-strength Tylenol, and ibuprofen 800 mg and

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Gabapentin 300 mg, which took away some of the pain, and used Icy-Hot);

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Cusimano v. Astrue, 2013 WL 178148, at *16 (N.D. Cal. Jan. 16, 2013) (“Plaintiff .

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. . received conservative pain treatment, . . . [including] prescriptions for Tylenol,

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Motrin, acetaminophen, and ibuprofen.”).

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specialized treatment for her headaches and did not seek a specialist regarding this

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medical issue. See Davis v. Colvin, 2015 WL 5255353, at *11 (E.D. Cal. Sept. 9,

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2015) (affirming ALJ’s conservative treatment finding where plaintiff had not been

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referred to a pain specialist, or received specialized treatment to alleviate his pain,

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and where the record lacked evidence that surgery or any other aggressive treatment

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had been recommended).

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Furthermore, Plaintiff received no

The Court finds that this is a clear and convincing reason, supported by
substantial evidence, for discounting Plaintiff’s credibility.
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Lack of Supporting Objective Evidence

The ALJ also discounted Plaintiff’s credibility because her “allegations are
greater than expected in light of the objective evidence of record.” (AR 17.)

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The ALJ noted that Plaintiff’s “treatment records mainly documented

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emergency room visits for exacerbations of her conditions.” (AR 17.) The ALJ
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found that the treatment notes “documented minimal findings and conservative

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treatment only.” (AR 17.) The Court’s review of the administrative record reveals

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that the ALJ fairly summarized the objective evidence regarding Plaintiff’s

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headaches and her treatment for them. In light of the objective evidence in the

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record, the Court finds that the ALJ’s determination is supported by substantial

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evidence.
The Court finds that this is a clear and convincing reason, supported by

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substantial evidence, for discounting Plaintiff’s credibility.
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Plaintiff’s Inconsistent Statements Regarding Drug Use

Finally, the ALJ found that the Plaintiff’s inconsistent statements regarding

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her drug use “diminish[ed] the claimant’s overall credibility.” (AR 17.)

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Specifically, the ALJ observed that Plaintiff testified that her last use of

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methamphetamines was “a couple of years prior to the hearing date [in December

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2014], but laboratory testing performed on October 23, 2013, was positive for

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amphetamines . . . . (AR 17.) Inconsistent statements in a claimant’s testimony,

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and between a claimant’s testimony and her conduct can be specific reasons not to

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find the claimant credible. Rusten v. Commissioner of Social Sec. Admin., 468 F.

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App’x 717, 719 (9th Cir. 2012) (“Inconsistent or dishonest statements about drug

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use can be used to infer a lack of veracity in the claimant’s other assertions.”

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(citation omitted)). The evidence of Plaintiff’s inconsistent statement regarding her

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drug use compared to the evidence in the record supports the ALJ’s negative

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conclusions regarding Plaintiff’s credibility. See Verduzco v. Apfel, 188 F.3d 1087,

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1090 (9th Cir. 1999) (relying on inconsistent statements about alcohol use to reject

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claimant’s testimony); see also Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir.

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2002) (claimant’s inconsistent statements regarding alcohol and drug use supported

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ALJ’s inference “that this lack of candor carries over to her description of physical

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pain.”)

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The Court finds that this is a clear and convincing reason, supported by

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substantial evidence, for discounting Plaintiff’s credibility.

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V.

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CONCLUSION
IT IS ORDERED that Judgment shall be entered AFFIRMING the decision

of the Commissioner denying benefits.
IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this
Order and the Judgment on counsel for both parties.

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DATED: March 20, 2017
ROZELLA A. OLIVER
UNITED STATES MAGISTRATE JUDGE

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

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