Diana Arlene Del Prado v. Carolyn W Colvin

Filing 19

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. (sp)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11
12
13
14
15
16

DIANA ARLENE DEL PRADO

)
)
Plaintiff,
)
)
v.
)
)
NANCY A. BERRYHILL, Acting
)
Commissioner of Social Security,
)
)
Defendant.
)
____________________________________)

NO. SA CV 16-1873-E

MEMORANDUM OPINION

17
18

PROCEEDINGS

19
20

Plaintiff filed a complaint on October 11, 2016, seeking review

21

of the Commissioner’s denial of benefits.

The parties consented to

22

proceed before a United States Magistrate Judge on December 23, 2016.

23

Plaintiff filed a motion for summary judgment on April 4, 2017.

24

Defendant filed a cross-motion for summary judgment on May 4, 2017.

25

The Court has taken the motions under submission without oral

26

argument.

27

///

28

///

See L.R. 7-15; “Order,” filed November 22, 2016.

1

BACKGROUND

2
3

Plaintiff, a former collections representative, asserted

4

disability based primarily on systemic lupus erythematosus (“lupus”)

5

(“Administrative Record (“A.R.”) 77, 136, 146, 151).

6

Administrative Law Judge (“ALJ”) reviewed the medical record and heard

7

testimony from Plaintiff and a vocational expert (A.R. 22-177, 183-

8

305).

9

Plaintiff retains the residual functional capacity to perform

An

The ALJ found Plaintiff’s lupus to be severe, but also found

10

sedentary work, including her past relevant work (A.R. 24-28).

The

11

ALJ deemed Plaintiff’s contrary testimony “less than fully credible”

12

(A.R. 28).

The Appeals Council denied review (A.R. 3-5).

13
14

STANDARD OF REVIEW

15
16

Under 42 U.S.C. section 405(g), this Court reviews the

17

Administration’s decision to determine if: (1) the Administration’s

18

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

19

Administration used correct legal standards.

20

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

21

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

22

of Social Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012).

23

Substantial evidence is “such relevant evidence as a reasonable mind

24

might accept as adequate to support a conclusion.”

25

Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted);

26

see Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).

27

///

28

///
2

See Carmickle v.

Richardson v.

1

If the evidence can support either outcome, the court may

2

not substitute its judgment for that of the ALJ.

3

Commissioner’s decision cannot be affirmed simply by

4

isolating a specific quantum of supporting evidence.

5

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

6

weighing both evidence that supports and evidence that

7

detracts from the [administrative] conclusion.

But the

8
9
10

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

11
12

DISCUSSION

13
14

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

15

is granted and Plaintiff’s motion is denied.

The Administration’s

16

findings are supported by substantial evidence and are free from

17

material1 legal error.

18
19

Contrary to Plaintiff’s arguments, the ALJ stated legally

20

sufficient reasons for finding Plaintiff’s testimony not fully

21

credible.

22

to “great weight.”

23

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

24

Where, as here, the ALJ finds that the claimant’s medically

An ALJ’s assessment of a claimant’s credibility is entitled
Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th

25
26
1

27
28

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).
3

1

determinable impairments reasonably could be expected to cause some

2

degree of the alleged symptoms of which the claimant subjectively

3

complains, any discounting of the claimant’s complaints must be

4

supported by specific, cogent findings.

5

1228, 1234 (9th Cir. 2010); Lester v. Chater, 81 F.3d 821, 834 (9th

6

Cir. 1995); but see Smolen v. Chater, 80 F.3d 1273, 1282-84 (9th Cir.

7

1996) (indicating that ALJ must offer “specific, clear and convincing”

8

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

9

malingering).2

See Berry v. Astrue, 622 F.3d

An ALJ’s credibility findings “must be sufficiently

10

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

11

claimant’s testimony on permissible grounds and did not arbitrarily

12

discredit the claimant’s testimony.”

13

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

14

see also Social Security Ruling 96-7p (explaining how to assess a

15

claimant’s credibility), superseded, Social Security Ruling 16-3p

16

(eff. March 28, 2016).

17

sufficient reasons for deeming Plaintiff’s subjective complaints less

18

than fully credible.

19

///

20

///

See Moisa v. Barnhart, 367 F.3d

As discussed below, the ALJ stated legally

21
22
23
24
25
26
27
28

2

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., Brown-Hunter v.
Colvin, 806 F.3d 487, 488-89 (9th Cir. 2015); Burrell v. Colvin,
775 F.3d 1133, 1136-37 (9th Cir. 2014); Treichler v.
Commissioner, 775 F.3d 1090, 1102 (9th Cir. 2014); Ghanim v.
Colvin, 763 F.3d 1154, 1163 n.9 (9th Cir. 2014); Garrison v.
Colvin, 759 F.3d 995, 1014-15 & n.18 (9th Cir. 2014); 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.
4

1

The ALJ pointed out inconsistencies between Plaintiff’s claimed

2

symptomatology and observations made by third parties (A.R. 26-27).

3

Plaintiff testified to regular swelling in various joints (A.R. 44).

4

Yet, reports of multiple medical examinations of Plaintiff reflect an

5

absence of swelling (A.R. 243-51, 254-64).

6

discount a claimant’s credibility where the claimant makes allegations

7

inconsistent with the observations of third parties.

8

Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999); Copeland v. Bowen, 861

9

F.2d 536, 541 (9th Cir. 1988).

An ALJ properly may

See Verduzco v.

10
11

The ALJ also pointed out that Plaintiff has not been consistent

12

in reporting her own alleged symptoms (A.R. 26).

For example,

13

Plaintiff emphasized the claimed severity of pain in joints, including

14

her knee, purportedly arising from even sedentary activity (A.R. 39,

15

44-47).

16

years, Plaintiff complained of knee pain on only one occasion after

17

her alleged disability onset date (A.R. 294).

18

discount a claimant’s credibility

19

claimant’s own reports of her symptoms.

20

Fed. App’x 250, 252 (9th Cir. 2007); Gregor v. Barnhart, 464 F.3d 968,

21

972 (9th Cir. 2006).

Yet, despite having numerous medical appointments over the

An ALJ properly may

based on inconsistencies in the
See Khanishian v. Astrue, 238

22
23

As the ALJ further pointed out, some of Plaintiff’s admitted

24

activities appear inconsistent with some of Plaintiff’s claimed

25

limitations.

26

disabling severity and a supposed inability to sit more than 30

27

minutes at a time, Plaintiff reportedly cleaned and cooked, did half

28

of the household shopping, gardened, traveled to New York and traveled

For example, despite testifying to pain of allegedly

5

1

to Northern California, all during the period of claimed disability

2

(A.R. 45-47, 49, 51, 147, 272-75).

3

incapacity and admitted activities properly can impugn a claimant’s

4

credibility.

5

Cir. 2012) (“the ALJ may consider inconsistencies in the claimant’s

6

testimony or between the testimony and the claimant’s conduct”); Thune

7

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

8

discredited pain allegations as contradicting claimant’s testimony

9

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

Inconsistencies between claimed

See, e.g., Molina v. Astrue, 674 F.3d 1104, 1112 (9th

10

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

11

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

12

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

13

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

14

278 F.3d 947, 958-59 (9th Cir. 2002) (inconsistency between claimant’s

15

testimony and claimant’s actions supported rejection of claimant’s

16

credibility); Verduzco v. Apfel, 188 F.3d at 1090 (inconsistency

17

between claimant’s testimony and claimant’s actions cited as a clear

18

and convincing reason for rejecting claimant’s testimony).

19
20

The ALJ also emphasized that objective medical evidence

21

undermines Plaintiff’s claims of disabling symptomatology (A.R. 26-

22

28).

23

sole ground that it is not fully corroborated by objective medical

24

evidence, the medical evidence is still a relevant factor. . . .”

25

Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).

26

medical evidence suggests Plaintiff’s problems have not been, and are

27

not now, as profound as she has claimed.

28

///

Although a claimant’s credibility “cannot be rejected on the

6

Here, the

1

The ALJ also mentioned the ALJ’s personal observations of

2

Plaintiff at the hearing as assertedly casting doubt on Plaintiff’s

3

veracity (A.R. 26).

4

been condemned as “sit and squirm” jurisprudence.

5

Heckler, 765 F.2d 870, 872 (9th Cir. 1985); but see Verduzco v. Apfel,

6

188 F.3d at 1090 (“Although this Court has disapproved of so-called

7

‘sit and squirm’ jurisprudence, the inclusion of the ALJ’s personal

8

observations does not render the decision improper.”) (citations and

9

internal quotations omitted).

An ALJ’s use of such observations sometimes has
See Perminter v.

Cases condemning “sit and squirm”

10

jurisprudence express a concern that the ALJ, who is not a medical

11

expert, may substitute his or her own lay judgment in the place of a

12

medical diagnosis.

13

(11th Cir. 1986) (ALJ improperly substituted his own opinion based on

14

observations at the hearing for the medical evidence presented); Van

15

Horn v. Schweiker, 717 F.2d 871, 874 (3d Cir. 1983) (addressing the

16

“roundly condemned ‘sit and squirm’ method of deciding disability,”

17

and stating that “an ALJ is not free to set his own expertise against

18

that of physicians who present competent medical evidence”) (citations

19

omitted); but see Matney v. Sullivan, 981 F.2d 1016, 1020 (1992)

20

(referring to claimant’s “demeanor and appearance at the hearing” as

21

among the specific findings supporting the ALJ’s rejection of

22

Plaintiff’s credibility); Nyman v. Heckler, 779 F.2d 528, 531 & n.1

23

(9th Cir. 1985) (finding no error where the ALJ’s “observation of [the

24

claimant’s] demeanor was relevant to his credibility and was not

25

offered or taken as a substitute for medical diagnosis”).

See, e.g., Graham v. Bowen, 786 F.2d 1113, 1115

26
27
28

Notwithstanding the questionable validity of one or more of an
ALJ’s stated reasons for discounting a claimant’s credibility, a court
7

1

properly may uphold the credibility determination where sufficient

2

valid reasons have been stated.

3

F.3d 1155, 1162-63 (9th Cir. 2008); see also Drouin v. Sullivan, 966

4

F.2d 1255, 1259 (9th Cir. 1992) (upholding credibility rejection where

5

ALJ’s observation of claimant at the hearing was only one of several

6

reasons stated).

7

reasons to allow this Court to conclude that the ALJ discounted

8

Plaintiff’s credibility on permissible grounds.

9

Barnhart, 367 F.3d at 885.

The Court therefore defers to the ALJ’s

10

credibility determination.

See Lasich v. Astrue, 252 Fed. App’x 823,

11

825 (9th Cir. 2007) (court will defer to Administration’s credibility

12

determination when the proper process is used and proper reasons for

13

the decision are provided); accord Flaten v. Secretary of Health &

14

Human Services, 44 F.3d 1453, 1464 (9th Cir. 1995).3

15

///

16

///

17

///

18

///

19

///

20

///

21

///

22

///

23

///

24

///

See Carmickle v. Commissioner, 533

In the present case, the ALJ stated sufficient

See Moisa v.

25
26
27
28

3

The Court does not determine herein whether Plaintiff’s
assertions regarding her subjective symptoms and limitations are
credible. It is for the Administration, and not this Court, to
evaluate the credibility of witnesses. See Magallanes v. Bowen,
881 F.2d 747, 750, 755-56 (9th Cir. 1989).
8

1

CONCLUSION

2
3

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

4

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

5

granted.

6
7

LET JUDGMENT BE ENTERED ACCORDINGLY.

8
9

DATED: May 15, 2017.

10
11
12

/s/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9