John Leonard Coakley v. Carolyn W. Colvin

Filing 29


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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOHN LEONARD COAKLEY, 12 Plaintiff, 13 v. 14 15 Case No. ED CV 16-01724 AFM MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF COMMISSIONER NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 Defendant. 17 18 19 I. BACKGROUND 20 Plaintiff John Leonard Coakley filed his application for disability insurance 21 benefits under Title II of the Social Security Act on December 10, 2014, alleging 22 disability beginning January 1, 2014. 23 reconsideration, a hearing took place before an Administrative Law Judge (ALJ) on 24 February 4, 2016. In a decision dated March 2, 2016, the ALJ found that Plaintiff 25 was not disabled within the meaning of the Social Security Act for the period from 26 January 1, 2014, through the date of the decision. The Appeals Council declined to 27 set aside the ALJ’s unfavorable decision in a notice dated June 10, 2016. Plaintiff 28 After denial on initial review and on 1 filed a Complaint herein on August 11, 2016, seeking review of the 2 Commissioner’s denial of his application for benefits. 3 In accordance with the Court’s Order Re: Procedures in Social Security 4 Appeal, the Plaintiff filed a memorandum in support of the complaint on July 11, 5 2017. 6 August 15, 2017. Plaintiff did not file a reply. This matter now is ready for 7 decision. The Commissioner filed a memorandum in support of her answer on 8 9 II. Whether the ALJ improperly evaluated Plaintiff’s credibility and subjective 10 11 DISPUTED ISSUE complaints. 12 13 III. STANDARD OF REVIEW 14 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 15 determine whether the Commissioner’s findings are supported by substantial 16 evidence and whether the proper legal standards were applied. See Treichler v. 17 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Substantial 18 evidence means “more than a mere scintilla” but less than a preponderance. See 19 Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d 20 1028, 1035 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a 21 reasonable mind might accept as adequate to support a conclusion.” Richardson, 22 402 U.S. at 401. This Court must review the record as a whole, weighing both the 23 evidence that supports and the evidence that detracts from the Commissioner’s 24 conclusion. Lingenfelter, 504 F.3d at 1035. Where evidence is susceptible of more 25 than one rational interpretation, the Commissioner’s decision must be upheld. See 26 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 27 Error in a social security determination is subject to harmless error analysis. 28 Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012). Reversal “is not automatic, 2 1 but requires a determination of prejudice.” Id. A reviewing federal court must 2 consider case-specific factors, including “an estimation of the likelihood that the 3 result would have been different, as well as the impact of the error on the public 4 perception of such proceedings.” Id. (footnote and citation omitted). 5 6 IV. FIVE-STEP EVALUATION PROCESS 7 The Commissioner (or ALJ) follows a five-step sequential evaluation process 8 in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; 9 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995), as amended April 9, 1996. 10 In the first step, the Commissioner must determine whether the claimant is 11 currently engaged in substantial gainful activity; if so, the claimant is not disabled 12 and the claim is denied. Id. If the claimant is not currently engaged in substantial 13 gainful activity, the second step requires the Commissioner to determine whether 14 the claimant has a “severe” impairment or combination of impairments significantly 15 limiting his ability to do basic work activities; if not, a finding of nondisability is 16 made and the claim is denied. Id. If the claimant has a “severe” impairment or 17 combination of impairments, the third step requires the Commissioner to determine 18 whether the impairment or combination of impairments meets or equals an 19 impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. part 20 404, subpart P, appendix 1; if so, disability is conclusively presumed and benefits 21 are awarded. Id. If the claimant’s impairment or combination of impairments does 22 not meet or equal an impairment in the Listing, the fourth step requires the 23 Commissioner to determine whether the claimant has sufficient “residual functional 24 capacity” to perform his past work; if so, the claimant is not disabled and the claim 25 is denied. Id. The claimant has the burden of proving that he is unable to perform 26 past relevant work. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). If the 27 claimant meets this burden, a prima facie case of disability is established. Id. The 28 Commissioner then bears the burden of establishing that the claimant is not 3 1 disabled, because he can perform other substantial gainful work available in the 2 national economy. Id. The determination of this issue comprises the fifth and final 3 step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 4 828 n.5; Drouin, 966 F.2d at 1257. 5 6 V. THE ALJ’S APPLICATION OF THE FIVE-STEP PROCESS 7 At step one, the ALJ found that Plaintiff had not engaged in substantial 8 gainful activity since January 1, 2014, the alleged onset date. (AR 20.) At step 9 two, the ALJ found that Plaintiff had the following severe impairments: 10 hypertension; obstructive sleep apnea syndrome with a continuous positive airway 11 pressure usage; high blood pressure; major depression; post-traumatic stress 12 disorder; anxiety; arthritis of the hips; degenerative joint disease of the knees; 13 patellofemoral syndrome; lumbar facet syndrome; mild degenerative changes of the 14 left shoulder; and fibromyalgia. (AR 20-21.) At step three, the ALJ found that 15 Plaintiff did not have an impairment or combination of impairments that meets or 16 medically equals the severity of one of the listed impairments. (AR 21-23.) The 17 ALJ then found that Plaintiff had the residual functional capacity (RFC) to perform 18 light work, except 19 [Plaintiff] can lift and carry 20 pounds occasionally and 10 pounds 20 frequently; can stand and walk for three hours in an eight-hour 21 workday and sit for six hours in an eight-hour workday with normal 22 breaks; can frequently push and pull with the bilateral upper 23 extremities; can frequently operate foot control operations bilaterally; 24 can never climb ladders, ropes or scaffolds; can occasionally climb 25 ramps or stairs, balance, stoop, kneel, and crouch, but never crawl; can 26 perform bilateral overhead reaching only occasionally, but reaching in 27 all other directions are not limited; can only perform jobs that can be 28 performed while using a hand-held assistive device for uneven terrain 4 1 and prolonged ambulation; can occasionally have exposure to extreme 2 cold, extreme heat, unprotected heights and excessive construction 3 vibration; can have occasional use of moving machinery; can perform 4 unskilled work at all reasoning levels appropriate for unskilled work; 5 can only have occasional superficial interaction with the public. (AR 6 23.) 7 At step four, based on Plaintiff’s vocational background, testimony and 8 testimony of the VE, the ALJ concluded that Plaintiff is not capable of performing 9 his past relevant work as a drill sergeant and trainer. (AR 29.) However, based on 10 Plaintiff’s age, education, work experience, RFC and VE testimony, the ALJ 11 determined at step five that there are jobs that exist in significant numbers in the 12 national economy that the Plaintiff can perform, such as Inspector, Assembler and 13 Sorter. Accordingly, the ALJ concluded that Plaintiff was not disabled as defined 14 under the Social Security Act from January 1, 2014, through March 2, 2016, the 15 date of the decision. (AR 31.) 16 17 VI. THE ALJ’S ASSESSMENT OF PLAINTIFF’S CREDIBILITY AND 18 SUBJECTIVE COMPLAINTS 19 An ALJ’s assessment of pain severity and claimant credibility is entitled to 20 “great weight.” Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989). Where the 21 claimant has produced objective medical evidence of an impairment which could 22 reasonably be expected to produce some degree of pain and/or other symptoms, and 23 the record is devoid of any affirmative evidence of malingering, the ALJ may reject 24 the claimant’s testimony regarding the severity of the claimant’s pain and/or other 25 symptoms only if the ALJ makes specific findings stating clear and convincing 26 reasons for doing so. See Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986); 27 see also Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). Here, since the 28 Commissioner has not argued that there was evidence of malingering and that a 5 1 lesser standard consequently should apply, the Court will apply the “clear and 2 convincing” standard to the ALJ’s adverse credibility determination. See Burrell v. 3 Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014) (applying “clear and convincing” 4 standard where the government did not argue that a lesser standard should apply 5 based on evidence of malingering). 6 “General findings are insufficient; rather, the ALJ must identify what 7 testimony is not credible and what evidence undermines the claimant’s complaints.” 8 Burrell, 775 F.3d at 1138. An ALJ’s findings “‘must be sufficiently specific to 9 allow a reviewing court to conclude the adjudicator rejected the claimant’s 10 testimony on permissible grounds and did not arbitrarily discredit a claimant’s 11 testimony regarding pain.’” Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 12 2015) (quoting Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991). An ALJ 13 may consider a variety of factors ordinarily used in assessing credibility. See 14 Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); Light v. Soc. Sec. 15 Admin., 119 F.3d 789, 792 (9th Cir. 1997) (an ALJ may consider inconsistencies 16 within testimony or between testimony and conduct in weighing credibility); 17 Smolen, 80 F.3d at 1284 (in determining credibility, the ALJ may consider 18 “ordinary techniques of credibility evaluation”). 19 Here, the ALJ provided several reasons in support of her adverse credibility 20 determination. First, the ALJ found that Plaintiff’s ability to participate in his daily 21 activities “diminishes the credibility of his functional limitations.” (AR 25.) As 22 summarized by the ALJ, Plaintiff testified that “he is unable to work due to 23 fibromyalgia, hip issues, left shoulder pain, knee pain, bilateral fasciitis, and mental 24 health issues. He asserted that he has difficulty standing, walking sitting, bending 25 and sleeping.” (AR 24.) However, as also discussed by the ALJ, Plaintiff reported 26 that “his activities of daily living included performing personal care tasks, 27 preparing simple meals, helping with the laundry, driving, going outside on a daily 28 basis, shopping in stores, playing games, using the computer, paying bills, handling 6 1 the finances and spending time with his wife and others.” (AR 25, citing AR 181- 2 88 and Plaintiff’s testimony.) The ALJ further referred to Plaintiff’s testimony that 3 he does some walking and exercising. (AR 24.) The inconsistency between the 4 impairments claimed by Plaintiff and his “somewhat normal level of daily activity 5 and interaction” (AR 25) is a valid basis for a negative credibility finding and is 6 supported by substantial evidence in this case. See Molina v. Astrue, 674 F.3d 7 1104, 1112 (9th Cir. 2012) (ALJ may discredit claimant’s testimony when 8 “claimant engages in daily activities inconsistent with the alleged symptoms”); see 9 also Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) 10 (ALJ properly discounted claimant’s testimony because “she leads an active 11 lifestyle, including cleaning, cooking, walking her dogs, and driving to 12 appointments”). 13 pointed to specific testimony and compared it to the specific limitations claimed by 14 Plaintiff. As the Commissioner points out, Plaintiff’s credibility may be properly 15 discounted even if the level of his admitted daily activities was not wholly 16 commensurate with full-time work. See Molina, 674 F.3d at 1113. In this case, 17 Plaintiff’s ability to, inter alia, use the computer, pay bills, take responsibility for 18 handling finances, drive, and walk are functions that are transferrable to a work 19 setting. 20 program. Accordingly, the ALJ specifically found that “[s]ome of the physical and 21 mental abilities and social interactions required in order to perform these activities 22 are the same as those necessary for obtaining and maintaining employment.” (AR 23 25.) That provides a further ground for the credibility determination. See Orn v. 24 Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (adverse credibility finding may be based 25 on the fact claimant engages in “‘pursuits involving the performance of physical 26 functions that are transferable to a work setting’”). In making these findings regarding daily activities the ALJ Plaintiff also testified that he had nearly completed an on-line MBA 27 Second, the ALJ found that “the claimant has made inconsistent statements 28 regarding matters relevant to the issue of disability.” (AR 25.) She provided two 7 1 examples of these inconsistencies. As one instance, the ALJ referred to a claim by 2 Plaintiff in a function report that he had difficulty concentrating and completing 3 tasks (AR 25, referring to AR 186) and contrasted that with Plaintiff’s testimony at 4 the hearing that he had completed 14 of 16 classes necessary to earn an online 5 MBA (AR 25 citing testimony at AR 42-43). Plaintiff further testified that he 6 would take one of his final classes in the next term, when that class became 7 available. (AR 43.) The ALJ also compared Plaintiff’s claim that he had difficulty 8 walking and bending (AR 54), with his testimony that he was a strong person who 9 did some pushups and extended stretching for exercise (AR 53). The inconsistency 10 of Plaintiff’s statements concerning concentration and completing tasks is strongly 11 supported in the record; taken together with the varied testimony concerning 12 Plaintiff’s physical capabilities, substantial evidence supports the ALJ’s finding that 13 there were inconsistencies in Plaintiff’s subjective symptom testimony and 14 allegations. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“Where 15 evidence is susceptible to more than one rational interpretation, it is the ALJ’s 16 conclusion that must be upheld.”). These inconsistencies provide another legally 17 sufficient reason on which the ALJ could properly rely in making an adverse 18 credibility determination. See id., at 680 (“In determining credibility, an ALJ may 19 engage in ordinary techniques of credibility evaluation, such as considering . . . 20 inconsistencies in claimant’s testimony.”); Molina, 674 F.3d at 1113 (ALJ properly 21 rejected claimant’s testimony in part because it was inconsistent with other 22 evidence in the record); Morgan, v. Comm’r of Social Sec. Admin., 169 F.3d 595, 23 600 (9th Cir. 1999) (ALJ may properly consider conflict between claimant’s 24 testimony of subjective complaints and other evidence in the record). 25 As a final reason, the ALJ found that Plaintiff’s subjective testimony was not 26 substantiated by objective medical evidence in the record. (AR 25.) Although this 27 may not be the sole reason to support an adverse credibility finding, “it is a factor 28 that the ALJ can consider in his credibility analysis.” Burch, 400 F.3d at 681; 8 1 Morgan, 169 F.3d at 600 (ALJ may properly consider conflict between claimant’s 2 testimony of subjective complaints and objective medical evidence in the record); 3 see also Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1999) (ALJ may properly rely 4 on weak objective support for the claimant’s subjective complaints); Orteza v. 5 Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (ALJ may properly rely on lack of 6 objective evidence to support claimant’s subjective complaints). In the present 7 case, the ALJ’s assessment of the objective medical evidence was supported by 8 substantial evidence. 9 10 Accordingly, the Court concludes that the ALJ did not err in her adverse credibility determination. * 11 12 13 * * IT THEREFORE IS ORDERED that Judgment be entered affirming the decision of the Commissioner and dismissing this action with prejudice. 14 15 DATED: September 14, 2017 16 17 18 ____________________________________ ALEXANDER F. MacKINNON UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 9

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