Diane F. Williams v.Carolyn W. Colvin

Filing 27

DECISION AND ORDER by Magistrate Judge Victor E Bianchini. (See Order for details.) IT IS THEREFORE ORDERED that: Judgment be entered AFFIRMING the Commissioner's decision and DISMISSING this action, and it is further ORDERED that The Clerk of the Court file this Decision and Order, serve copies upon counsel for the parties, and CLOSE this case. (wr)

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O 1 2 3 UNITED STATES DISTRICT COURT 4 CENTRAL DISTRICT OF CALIFORNIA 5 Case No. 5:16-CV-02317 (VEB) 6 7 DIANE F. WILLIAMS, 9 10 DECISION AND ORDER Plaintiff, 8 vs. NANCY BERRYHILL, Acting Commissioner of Social Security, 11 Defendant. 12 I. INTRODUCTION 13 In November of 2012, Plaintiff Diane Williams applied for Disability 14 15 16 Insurance benefits and Supplemental Security Income benefits under the Social Security Act. The Commissioner of Social Security denied the applications.1 17 18 1  On January 23, 2017, Nancy Berryhill took office as Acting Social Security Commissioner. The 19 Clerk of the Court is directed to substitute Acting Commissioner Berryhill as the named defendant in this matter pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure. 20 1 DECISION AND ORDER – WILLIAMS v BERRYHILL 5:16-CV-02317-VEB 1 Plaintiff, by and through her attorney, Lawrence D. Rohlfing, Esq. 2 commenced this action seeking judicial review of the Commissioner’s denial of 3 benefits pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3). 4 The parties consented to the jurisdiction of a United States Magistrate Judge. 5 (Docket No. 12, 13, 24, 25). On August 18, 2017, this case was referred to the 6 undersigned pursuant to General Order 05-07. (Docket No. 22). 7 8 II. BACKGROUND 9 Plaintiff applied for benefits on November 26, 2012, alleging disability 10 beginning July 12, 2011. (T at 167-75).2 The applications were denied initially and 11 on reconsideration. Plaintiff requested a hearing before an Administrative Law 12 Judge (“ALJ”). 13 On March 19, 2015, a hearing was held before ALJ Nancy Stewart. (T at 33). 14 Plaintiff appeared with an attorney and testified. (T at 37-51). 15 received testimony from Kristan Cicero, a vocational expert. (T at 51-53). The ALJ also 16 On May 22, 2015, the ALJ issued a written decision denying the applications 17 for benefits. (T at 16-32). The ALJ’s decision became the Commissioner’s final 18 19 20 2  Citations to (“T”) refer to the administrative record transcript at Docket No. 17. 2 DECISION AND ORDER – WILLIAMS v BERRYHILL 5:16-CV-02317-VEB 1 decision on September 9, 2016, when the Appeals Council denied Plaintiff’s request 2 for review. (T at 10-15). 3 On November 7, 2016, Plaintiff, acting by and through her counsel, filed this 4 action seeking judicial review of the Commissioner’s denial of benefits. (Docket No. 5 1). The Commissioner interposed an Answer on April 4, 2017. (Docket No. 16). 6 The parties filed a Joint Stipulation on July 17, 2017. (Docket No. 22). 7 After reviewing the pleadings, Joint Stipulation, and administrative record, 8 this Court finds that the Commissioner’s decision should be affirmed and this case 9 be dismissed. 10 11 12 III. DISCUSSION A. Sequential Evaluation Process 13 The Social Security Act (“the Act”) defines disability as the “inability to 14 engage in any substantial gainful activity by reason of any medically determinable 15 physical or mental impairment which can be expected to result in death or which has 16 lasted or can be expected to last for a continuous period of not less than twelve 17 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a 18 claimant shall be determined to be under a disability only if any impairments are of 19 such severity that he or she is not only unable to do previous work but cannot, 20 3 DECISION AND ORDER – WILLIAMS v BERRYHILL 5:16-CV-02317-VEB 1 considering his or her age, education and work experiences, engage in any other 2 substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 3 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and 4 vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 5 The Commissioner has established a five-step sequential evaluation process 6 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step 7 one determines if the person is engaged in substantial gainful activities. If so, 8 benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the 9 decision maker proceeds to step two, which determines whether the claimant has a 10 medically severe impairment or combination of impairments. 20 C.F.R. §§ 11 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 12 If the claimant does not have a severe impairment or combination of 13 impairments, the disability claim is denied. If the impairment is severe, the 14 evaluation proceeds to the third step, which compares the claimant’s impairment(s) 15 with a number of listed impairments acknowledged by the Commissioner to be so 16 severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 17 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or 18 equals one of the listed impairments, the claimant is conclusively presumed to be 19 disabled. If the impairment is not one conclusively presumed to be disabling, the 20 4 DECISION AND ORDER – WILLIAMS v BERRYHILL 5:16-CV-02317-VEB 1 evaluation proceeds to the fourth step, which determines whether the impairment 2 prevents the claimant from performing work which was performed in the past. If the 3 claimant is able to perform previous work, he or she is deemed not disabled. 20 4 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, the claimant’s residual 5 functional capacity (RFC) is considered. If the claimant cannot perform past relevant 6 work, the fifth and final step in the process determines whether he or she is able to 7 perform other work in the national economy in view of his or her residual functional 8 capacity, age, education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 9 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987). 10 The initial burden of proof rests upon the claimant to establish a prima facie 11 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 12 Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden 13 is met once the claimant establishes that a mental or physical impairment prevents 14 the performance of previous work. The burden then shifts, at step five, to the 15 Commissioner to show that (1) plaintiff can perform other substantial gainful 16 activity and (2) a “significant number of jobs exist in the national economy” that the 17 claimant can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 18 19 20 5 DECISION AND ORDER – WILLIAMS v BERRYHILL 5:16-CV-02317-VEB 1 B. Standard of Review 2 Congress has provided a limited scope of judicial review of a Commissioner’s 3 decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner’s decision, 4 made through an ALJ, when the determination is not based on legal error and is 5 supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 6 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). 7 “The [Commissioner’s] determination that a plaintiff is not disabled will be 8 upheld if the findings of fact are supported by substantial evidence.” Delgado v. 9 Heckler, 722 F.2d 570, 572 (9th Cir. 1983)(citing 42 U.S.C. § 405(g)). Substantial 10 evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 11 n 10 (9th Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d 12 599, 601-02 (9th Cir. 1989). Substantial evidence “means such evidence as a 13 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 14 Perales, 402 U.S. 389, 401 (1971)(citations omitted). “[S]uch inferences and 15 conclusions as the [Commissioner] may reasonably draw from the evidence” will 16 also be upheld. Mark v. Celebreeze, 348 F.2d 289, 293 (9th Cir. 1965). On review, 17 the Court considers the record as a whole, not just the evidence supporting the 18 decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 19 1989)(quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 1980)). 20 6 DECISION AND ORDER – WILLIAMS v BERRYHILL 5:16-CV-02317-VEB 1 It is the role of the Commissioner, not this Court, to resolve conflicts in 2 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational 3 interpretation, the Court may not substitute its judgment for that of the 4 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th 5 Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be 6 set aside if the proper legal standards were not applied in weighing the evidence and 7 making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 8 432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the 9 administrative findings, or if there is conflicting evidence that will support a finding 10 of either disability or non-disability, the finding of the Commissioner is conclusive. 11 Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 12 C. Commissioner’s Decision 13 The ALJ determined that Plaintiff had not engaged in substantial gainful 14 activity since July 12, 2011, the alleged onset date, and met the insured status 15 requirements of the Social Security Act through December 31, 2017. (T at 21). The 16 ALJ found that Plaintiff’s diabetes, hypothyroidism, hypertension, disorder of the 17 lumbar spine with sciatica, diabetic polyneuropathy, right knee osteoarthritis, left 18 knee tear to the posterior horn, disorder of the wrist with pain, and obesity were 19 “severe” impairments under the Act. (Tr. 21). 20 7 DECISION AND ORDER – WILLIAMS v BERRYHILL 5:16-CV-02317-VEB 1 However, the ALJ concluded that Plaintiff did not have an impairment or 2 combination of impairments that met or medically equaled one of the impairments 3 set forth in the Listings. (T at 22). 4 The ALJ determined that Plaintiff retained the residual functional capacity 5 (“RFC”) to perform a limited range of light work, as defined in 20 CFR § 404.1567 6 (b) and 416.967 (b) as follows: frequent lifting/carrying of weight no greater than 10 7 pounds; occasional lifting/carrying of weight no greater than 20 pounds; 8 pushing/pulling within those weight limits, with no operation of foot pedals 9 bilaterally; standing/walking for 4 hours in an 8-hour workday, with the use of a 10 cane permitted for prolonged walking; sitting for 6 hours in an 8-hour workday, with 11 permission to stand and stretch not more than 10% of the day; no climbing of 12 ladders, ropes or scaffolds; occasional balancing, stooping, kneeling, crouching, 13 crawling, climbing ramps and stairs; frequent handling and fingering; no 14 concentrated exposure to respiratory irritants and no exposure to work hazards. (T at 15 22). 16 The ALJ found that Plaintiff could perform her past relevant work as an order 17 clerk. (T at 26). Accordingly, the ALJ determined that Plaintiff was not disabled 18 within the meaning of the Social Security Act between July 12, 2011 (the alleged 19 onset date) and May 22, 2015 (the date of the decision) and was therefore not 20 8 DECISION AND ORDER – WILLIAMS v BERRYHILL 5:16-CV-02317-VEB 1 entitled to benefits. (T at 27). As noted above, the ALJ’s decision became the 2 Commissioner’s final decision when the Appeals Council denied Plaintiff’s request 3 for review. (T at 10-15). 4 D. Disputed Issue 5 As set forth in the Joint Stipulation (Docket No. 22, at p. 5), Plaintiff offers a 6 single argument in support of her claim that the Commissioner’s decision should be 7 reversed - she challenges the ALJ’s credibility determination. 8 9 IV. ANALYSIS 10 A claimant’s subjective complaints concerning his or her limitations are an 11 important part of a disability claim. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 12 1190, 1195 (9th Cir. 2004)(citation omitted). The ALJ’s findings with regard to the 13 claimant’s credibility must be supported by specific cogent reasons. Rashad v. 14 Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of 15 malingering, the ALJ’s reasons for rejecting the claimant’s testimony must be “clear 16 and convincing.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). “General 17 findings are insufficient: rather the ALJ must identify what testimony is not credible 18 and what evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834; 19 Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 20 9 DECISION AND ORDER – WILLIAMS v BERRYHILL 5:16-CV-02317-VEB 1 However, subjective symptomatology by itself cannot be the basis for a 2 finding of disability. A claimant must present medical evidence or findings that the 3 existence of an underlying condition could reasonably be expected to produce the 4 symptomatology alleged. See 42 U.S.C. §§423(d)(5)(A), 1382c (a)(3)(A); 20 C.F.R. 5 § 404.1529(b), 416.929; SSR 96-7p. 6 In this case, Plaintiff stated as follows: She has weakness in her legs and feet 7 and knee pain bilaterally. (T at 39). Degenerative arthritis in her hips and lower 8 back is limiting and painful. (T at 39). She has vision problems, uses a back brace, 9 and uses a cane. (T at 38-39). She lives with her boyfriend, who assists with 10 household chores. (T at 48, 246). Her activities are limited by pain. (T at 237, 246). 11 Vision problems and grasping difficulties prevent her from sewing and doing crafts. 12 (T at 47). Lifting is difficult. (T at 246). Using a computer is challenging because 13 of problems with her vision and hands. (T at 46). Medication side effects impact her 14 ability to concentrate. (T at 240). 15 The ALJ concluded that Plaintiff’s medically determinable impairments could 16 reasonably be expected to cause the alleged symptoms, but that her statements 17 regarding the intensity, persistence, and limiting effects of the symptoms were not 18 fully credible. (T at 23). 19 20 10 DECISION AND ORDER – WILLIAMS v BERRYHILL 5:16-CV-02317-VEB 1 2 For the reasons that follow, this Court finds the ALJ’s decision consistent with applicable law and supported by substantial evidence. 3 No treating or examining physician assessed disabling limitations or opined 4 that Plaintiff was disabled. Both consultative examiners (Dr. Albert Savage and Dr. 5 Bahaa Girgis) concluded that Plaintiff had no limitation with regard to gross or fine 6 motor skills and found her RFC less restricted than the ALJ’s assessment (i.e., the 7 ALJ gave some credence to Plaintiff’s subjective complaints and found her to be 8 more limited than the consultative examiners did). (T at 402-08, 417-27). See 9 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (holding that examining 10 physician’s “opinion alone constitutes substantial evidence, because it rests on his 11 own independent examination of [claimant]”). 12 Likewise, the State Agency review consultants concluded that Plaintiff was 13 capable of work at the medium exertion level, which is less restrictive than the 14 ALJ’s findings. (T at 26). See 20 CFR § 404.1527 (f)(2)(i)(“State agency medical 15 and psychological consultants and other program physicians, psychologists, and 16 other medical specialists are highly qualified physicians, psychologists, and other 17 medical specialists who are also experts in Social Security disability evaluation.”). 18 The ALJ also reasonably concluded that the medical record did not support 19 the degree of disability alleged by Plaintiff. (T at 25). Examination notes reported 20 11 DECISION AND ORDER – WILLIAMS v BERRYHILL 5:16-CV-02317-VEB 1 no evidence of diabetic retinopathy, neuropathy, or radiculopathy. (T at 404-06, 420- 2 21). Plaintiff’s treating physicians reported full muscle strength, normal gait, and 3 mild tenderness in her back. (T at 368, 374, 376). Diagnostic tests, including MRI 4 results, revealed only mild findings. (T at 350-52, 361-62, 387-88, 449-50, 455, 5 457). 6 Although lack of supporting medical evidence cannot form the sole basis for 7 discounting pain testimony, it is a factor the ALJ may consider when analyzing 8 credibility. Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). In other words, an 9 ALJ may properly discount subjective complaints where, as here, they are 10 contradicted by medical records. Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 11 1155, 1161 (9th Cir. 2008); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 12 2002). 13 The ALJ also noted that some of Plaintiff’s more severe complaints were not 14 contemporaneously documented in the record to the degree one would expect if the 15 severity of the symptoms were as she alleged. For example, while Plaintiff claimed 16 limitations arising from hand and wrist symptoms, the treatment records do not 17 document significant clinical findings as to the range of motion in her upper 18 extremities or sustained complaints of severe issues regarding these areas. (T at 275, 19 20 12 DECISION AND ORDER – WILLIAMS v BERRYHILL 5:16-CV-02317-VEB 1 297, 399, 405, 420). Plaintiff also claimed vision problems, but vision tests were 2 normal (T at 404, 425) and Plaintiff apparently sought no vision treatment. 3 When assessing a claimant’s credibility, the ALJ may employ “ordinary 4 techniques of credibility evaluation.” Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 5 1224 n.3 (9th Cir. 2010)(quoting Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 6 1996)). Moreover “[e]vidence of ‘conservative treatment’ is sufficient to discount a 7 claimant’s testimony regarding the severity of an impairment.” Parra v. Astrue, 481 8 F.3d 742, 751 (9th Cir. 2007). 9 Plaintiff challenges the ALJ’s credibility determination and offers an 10 alternative reading of the evidence that highlights the aspects of the record that tend 11 to support her claims. However, where, as here, substantial evidence supports the 12 ALJ’s credibility determination, this Court may not overrule the Commissioner's 13 interpretation even if “the evidence is susceptible to more than one rational 14 interpretation.” Magallanes, 881 F.2d 747, 750 (9th Cir. 1989); see also Morgan v. 15 Commissioner, 169 F.3d 595, 599 (9th Cir. 1999)(“[Q]uestions of credibility and 16 resolutions 17 [Commissioner].”); Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008)(“If 18 the ALJ’s credibility finding is supported by substantial evidence, the court may not 19 engage in second-guessing.”). 20 of conflicts in the testimony are functions solely 13 DECISION AND ORDER – WILLIAMS v BERRYHILL 5:16-CV-02317-VEB of the 1 There is no question that Plaintiff suffers from some degree of pain and 2 limitation. However, the fact that a claimant suffers from pain, even significant 3 pain, is not sufficient, without more, to justify an award of benefits. Rather, the pain 4 must be so severe as to preclude gainful employment. See Fair v. Bowen, 885 F.2d 5 597, 603 (9th Cir. 1989)(“[M]any medical conditions produce pain not severe enough 6 to preclude gainful employment. The Disability Insurance and Supplemental 7 Security Income programs are intended to provide benefits to people who are unable 8 to work; awarding benefits in cases of non-disabling pain would expand the class of 9 recipients far beyond that contemplated by the statute.”); Curbow v. Colvin, No. CV- 10 14-8222, 2016 U.S. Dist. LEXIS 12147, *16 (D. Ariz. Feb. 1, 2016)(“[D]isability 11 requires more than mere inability to work without pain.”). 12 13 Accordingly, this Court finds no reversible error as to the ALJ’s credibility determination and concludes that the denial of benefits must therefore be affirmed. 14 15 V. CONCLUSION 16 After carefully reviewing the administrative record, this Court finds 17 substantial evidence supports the Commissioner’s decision, including the objective 18 medical evidence and supported medical opinions. It is clear that the ALJ thoroughly 19 examined the record, afforded appropriate weight to the medical evidence, including 20 14 DECISION AND ORDER – WILLIAMS v BERRYHILL 5:16-CV-02317-VEB 1 the assessments of the treating and examining medical providers and medical 2 experts, and afforded the subjective claims of symptoms and limitations an 3 appropriate weight when rendering a decision that Plaintiff is not disabled. This 4 Court finds no reversible error and because substantial evidence supports the 5 Commissioner’s decision, the Commissioner is GRANTED summary judgment and 6 that Plaintiff’s motion for judgment summary judgment is DENIED. 7 8 9 10 11 12 13 14 VI. ORDERS IT IS THEREFORE ORDERED that: Judgment be entered AFFIRMING the Commissioner’s decision and DISMISSING this action, and it is further ORDERED that The Clerk of the Court file this Decision and Order, serve copies upon counsel for the parties, and CLOSE this case. DATED this 10th day of April 2018, 15 16 17 /s/Victor E. Bianchini VICTOR E. BIANCHINI UNITED STATES MAGISTRATE JUDGE 18 19 20 15 DECISION AND ORDER – WILLIAMS v BERRYHILL 5:16-CV-02317-VEB

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