Cutino-Neil v. Commissioner of Social Security

Filing 18

ORDER Regarding Plaintiff's Social Security Complaint, signed by Magistrate Judge Barbara A. McAuliffe on 9/8/2016. CASE CLOSED. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANGELIKA C. CUTINO-NEIL,

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Plaintiff,

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

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) Case No.: 1:15-cv-00522-BAM
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) ORDER REGARDING PLAINTIFF’S
) SOCIAL SECURITY COMPLAINT
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INTRODUCTION

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Plaintiff Angelika C. Cutino-Neil (“Plaintiff”) seeks judicial review of a final decision of the

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Commissioner of Social Security (“Commissioner”) for cessation of disability insurance benefits

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(“DIB”) under Title II of the Social Security Act. The matter is currently before the Court on the

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parties’ briefs, which were submitted, without oral argument, to Magistrate Judge Barbara A.

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McAuliffe.1

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The Court finds the decision of the Administrative Law Judge (“ALJ”) to be supported by

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substantial evidence in the record as a whole and based upon proper legal standards. Accordingly, this

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Court affirms the agency’s determination for cessation of benefits.

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The parties consented to jurisdiction of a United States Magistrate Judge. (Docs. 6, 8).

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FACTS AND PRIOR PROCEEDINGS

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On February 4, 2004, the Social Security Administration found Plaintiff disabled as of

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November 26, 2002. AR 17. On June 28, 2011, the Social Security Administration determined that

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Plaintiff was no longer disabled as of June 1, 2011, and her benefits would stop. AR 111-14. Plaintiff

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subsequently requested a hearing before an Administrative Law Judge (“ALJ”).

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Christopher Larsen held a hearing on September 30, 2013, and issued an order finding that Plaintiff’s

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disability ended as of June 1, 2011. AR 14-25, 32-65. Plaintiff sought review of the ALJ’s decision,

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which the Appeals Council denied, making the ALJ’s decision the Commissioner’s final decision. AR

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8-10, 13. This appeal followed.

AR 145.

ALJ

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Hearing Testimony

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The ALJ held a hearing on September 30, 2013, in Fresno, California. AR 32-65. Plaintiff

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appeared and testified without counsel. AR 34-25. Impartial Vocational Expert (“VE”) Stephen B.

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Schmidt also appeared and testified. AR 34.

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At the time of the hearing, Plaintiff was 46 years old. She had received an Associate of

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Applied Science degree in criminal justice, along with a paralegal degree, and was taking online

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classes at National University to earn her bachelor’s degree in criminal justice. Plaintiff anticipated

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completing her degree in October 2014. AR 38-39.

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Plaintiff reported that she last worked in 2010/2011 as a supervisor at Wal-Mart, but her work

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attempt was unsuccessful because she was required to be on her feet all day. AR 39-41. In the last

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fifteen years, Plaintiff had a number of jobs, including as an after school childcare provider, in private-

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duty nursing care and as a full-time payroll clerk. AR 41-44.

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When asked why she disagreed with the doctor’s conclusion that she was able to work,

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Plaintiff testified that he was a chiropractor who only asked her a few questions and did not conduct a

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physical examination. AR 44-45. Plaintiff explained that her disability was based on degenerative

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disc disease in her lower back, migraines and her knees. Although Plaintiff had her knees replaced,

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she still has knee pain. She also has problems in her back and neck and typically will have 10

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migraines a month lasting four hours or more. If she takes her medication and has fluids, she can

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sleep her migraines off. AR 46-50. Plaintiff testified that she can lift 5 to 10 pounds and can stand no
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more than 10 minutes without having to shift her weight. She thought she could work if she was

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allowed to sit down for 15 minutes every 30 minutes. AR 51-54.

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Following Plaintiff’s testimony, the ALJ elicited testimony from the vocational expert (“VE”)

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Stephen Schmidt. AR 60. The VE testified that Plaintiff’s past work was classified as payroll clerk,

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home attendant, and supervisor, department.

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questions. For the first hypothetical, the ALJ asked the VE to assume a worker of Plaintiff’s age,

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education and work experience.

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regulations define it, could never climb ladders, ropes or scaffolds, could frequently balance, stoop,

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kneel, crouch, crawl and climb ramps or stairs, and must avoid concentrated exposure to fumes, dusts,

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odors, gases and poor ventilation. The VE testified that this worker could perform Plaintiff’s past

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work as a payroll clerk and could perform other jobs in the economy, such as information clerk, order

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clerk and assembly. AR 60.

AR 60.

The ALJ also asked the VE hypothetical

This worker could perform sedentary physical exertion as the

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For the second hypothetical, the ALJ asked the VE to assume a worker of Plaintiff’s age,

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education and work experience. This worker could lift and carry 20 pounds occasionally and 10

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pounds frequently, could stand and walk somewhere between two and three hours in an eight-hour day

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and could sit between two and three hours in an eight-hour day, had the same postural limitations as

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the first hypothetical and a restriction against exposure to fumes, dusts. The VE testified that there

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would be no jobs in the economy for such a worker. AR 61-62.

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Medical Record

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The entire medical record was reviewed by the Court. AR 282-577. The relevant medical

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evidence, summarized here, will be referenced below as necessary to this Court’s decision.
In January 2008, Plaintiff underwent rotator cuff repair of her left shoulder. AR 336. Nearly

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two years later, in November 2009, Plaintiff reported pain and neck issues.

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Plaintiff’s neck had some pain with lateral bend and rotation. Her left shoulder had full motion, no

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impingement and excellent rotator cuff strength without weakness. Dr. Richard Ravalin diagnosed

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Plaintiff with suspected cervical spine degenerative disc disease and status post rotator cuff repair,

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which was stable. AR 342.

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On examination,

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On March 27, 2010, Plaintiff sought emergency room treatment for exacerbation of neck pain.
She was given morphine, Phernergan and Soma. AR 398-99.

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On June 1, 2010, Plaintiff sought emergency room treatment for headache, blurry vision and

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slurred speech. The physician suspected that some combination of Plaintiff’s medication was making

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her speech slurred and making her tired. She was given a dose of Dilaudid. AR 393-94.

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On July 7, 2010, Plaintiff sought emergency room treatment for right ankle pain. Plaintiff had
low back pain and right ankle pain. She was given Reglan, morphine and Dilaudid. AR 382-83.

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On July 10, 2010, Plaintiff sought emergency room treatment for her back pain, explaining that

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she was out of her narcotic medications and her regular doctor was out of town. Plaintiff had pain

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centered around her left CVA area and her left paraspinous area. Plaintiff was given Dilaudid and

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Zofran. AR 378-79.

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On July 14, 2010, Plaintiff reported right ankle pain.

On examination, Plaintiff had no

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swelling, no ligament or tendon abnormality, negative talar tilt and positive anterior impingement.

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Plaintiff was diagnosed with right ankle interior impingement. Dr. Ravalin recommended x-rays and

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provided a cortisone injection. AR 343. A right ankle x-ray completed on August 3, 2010, showed

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degenerative change about the right ankle. AR 302.

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On August 4, 2010, Plaintiff reported improvement after her ankle injection.

She was

contemplating surgical intervention with an arthroscopy and decompression. AR 345.

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On November 23, 2010, Plaintiff sought emergency room treatment for exacerbation of

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chronic neck and back pain. Plaintiff stated that she had been working many hours at her job, which

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required her to be on her feet for prolonged periods of time. On examination, Plaintiff had tenderness

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to both sides of the cervical, thoracic and lumbar spine. Her paraspinous muscle was very tender.

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Plaintiff was given a Dilaudid injection. AR 361-62.

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On December 24, 2010, Plaintiff sought emergency room treatment after falling at work two

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days prior. Plaintiff complained of sharp pain in her lower back and was told to go to the ER for pain

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medication. On examination, Plaintiff’s spine was in normal alignment, but she had pain to palpating

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the paraspinal muscles in the lumbar area. She was diagnosed with exacerbation of chronic back pain

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and given Dilaudid, Phenergan and a prescription for Norco. AR 358-59.
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On January 5, 2011, Plaintiff sought emergency room treatment for exacerbation of her

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migraine headache with nausea, vomiting, light and noise sensitivity and blurred vision. Plaintiff was

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treated with Compazine, Benadryl and Dilaudid. AR 352-54.

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On June 14, 2011, Dr. Tam Nguyen completed a consultative internal medicine evaluation.

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Plaintiff reported suffering from chronic back pain and joint pain, worse in her knees, neck and

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shoulders. Plaintiff indicated no impact on her activities of daily living. Her hobbies included reading

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books and watching television. She could take care of all her personal needs and housework. On a

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review of systems, Plaintiff denied any muscle ache or pain, weakness or numbness. She was able to

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walk to the exam room without any assistance, sat comfortably and could get up and off the table. On

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physical examination, she had no spinal or paraspinal tenderness on distraction. Straight leg raising

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was negative. She had normal neurological and quick mental status and memory exams. She also had

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normal muscle bulk and tone with strength of 5/5 in her upper and lower extremities. Dr. Nguyen

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diagnosed Plaintiff with chronic back pain – mild to moderate and stable; joint pain likely from

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osteoarthritis due to morbid obesity – moderate and stable; migraine – unsure of sub-types and needed

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follow-up with primary care providers; and asthma – based on history and exam she was mild

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persistent and controlled with albuterol PRN. Dr. Nguyen opined that Plaintiff had no limitations for

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standing, walking or sitting. She also had no lifting or carrying limitation, no limitation to postural or

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manipulative activities, and no limitation to her workplace environment or activities. AR 422-26.

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On June 28, 2011, Dr. K. Quint, a state agency medical consultant, completed a Physical

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Residual Functional Capacity Assessment form. Dr. Quint opined that Plaintiff could lift and/or carry

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50 pounds occasionally, 25 pounds frequently, could stand and/or walk about 6 hours in an 8-hour

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day, could sit about 6 hours in an 8-hour day and frequently could push and/or pull with her right

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lower extremity. She occasionally could climb ramps and stairs, but never climb ladders, ropes or

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scaffolds. She frequently could balance, stoop, kneel, crouch and crawl. She did not have any

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manipulative or visual limitations, but must avoid concentrated exposure to fumes, odors, dusts, gases

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and poor ventilation. AR 428-33.

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On October 7, 2011, Dr. N. Haroun, a state agency medical consultant, opined that the

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evidence did not support the presence of any symptoms or signs to establish the presence of a severe

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mental impairment. AR 498-512.

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On November 22, 2011, Dr. G. Lee, a state agency medical consultant, completed a Physical

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Residual Functional Capacity Assessment form. Dr. Lee opined that Plaintiff could lift and/or carry

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50 pounds occasionally, 25 pounds frequently, could stand and/or walk about 6 hours in an 8-hour

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workday, sit about 6 hours in an 8-hour workday and frequently could push/pull with her right lower

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extremity. She could occasionally climb ramps or stairs, but never climb ladders, ropes or scaffolds.

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She frequently could balance, stoop, kneel, crouch and crawl. She did not have any manipulative,

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visual or communicative limitations, but must avoid concentrated exposure to fumes, odors, dusts,

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gases and poor ventilation. AR 513-17.

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On May 4, 2012, Dr. Ekram Michiel, a board certified psychiatrist, completed a consultative

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psychiatric evaluation. Plaintiff reported depression, anxiety, difficulty concentrating and difficulty

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recalling names or items. She had been on antidepressants since 1989, and stopped taking them in

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2011 because side effects caused her not to be able to concentrate or study for her paralegal program.

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Plaintiff indicated that she was able to take care of her personal hygiene and she could shop, cook and

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do household chores. On mental status examination, her mood was depressed and her affect was

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restricted, sad. She was oriented to person, place and date. Her attention and concentration were

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intact.

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impairment. Dr. Michiel diagnosed depressive disorder NOS, and believed that Plaintiff was able to

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maintain attention and concentration to carry out simple job instructions, but could not carry out an

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extensive variety of technical and/or complex instructions.

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coworkers, supervisors and the general public and had no restrictions on her activities of daily living.

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AR 519-22.

Additionally, her recent memory was intact and her remote memory did not show any

She could relate and interact with

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On May 15, 2012, Dr. R. Betcher, a state agency medical consultant, completed a Physical

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Residual Functional Capacity Assessment form. Dr. Betcher opined that Plaintiff could lift and/or

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carry 50 pounds occasionally, 25 pounds frequently, could stand and/or walk about 6 hours in an 8-

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hour workday, could sit about 6 hours in an 8-hour workday and could push and/or pull without
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limitation.

Dr. Betcher also opined that Plaintiff frequently could climb ramps and stairs and

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occasionally climb ladders, ropes and scaffolds. She also frequently could balance, stoop, kneel,

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crouch, and crawl.

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limitations. AR 525-29.

She did not have any manipulative, visual, communicative or environmental

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On June 1, 2012, Dr. N. Haroun, a state agency medical consultant, completed a Psychiatric

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Review Technique form for Plaintiff’s depression NOS. Dr. Haroun opined that Plaintiff did not have

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any functional limitations or repeated episodes of decompensation. AR 535-45.

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On September 27, 2012, Plaintiff sought treatment at the Spine & Orthopedic Medical Center

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for evaluation of her lumbar spine. Plaintiff was evaluated by Nurse Practitioner Cindy Stevens.

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Plaintiff described the pain in her lumbar spine as burning, numbness in bilateral legs and spasms.

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She rated her pain as 10 out of 10, which was relieved with rest and worsened with activity. On

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examination, Plaintiff’s head and neck had normal range of motion, no tenderness, normal stability

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and normal muscle strength and tone. Her spine had no tenderness, normal range of motion, normal

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stability and normal muscle strength and tone.

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normal. A musculoskeletal examination revealed a normal gait and pain in the lumbar spine on the

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left leg raise at about 30 degrees. X-rays of the lumbar spine were grossly negative. Plaintiff was

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diagnosed with lumbar spine pain and degenerative disc disease of the lumbar spine. She was

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prescribed the least dose of Norco and Soma and given a Toradol injection, along with a back support

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and transcutaneous electrical nerve stimulator unit (“TENS unit”).

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Additionally, ice and a weight loss regimen were encouraged. Dr. P. James Nugent reviewed and

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approved the examination and treatment plan. AR 550-54.

A neurological and psychiatric examination was

A MRI was requested.

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On October 13, 2012, Plaintiff underwent a lumbar spine MRI, which showed minimal

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degenerative disc disease with mild narrowing of the left L2-L3 and bilateral L3-L4 neural foramen.

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AR 546-47.

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On October 18, 2012, Plaintiff received follow-up treatment with Dr. Nugent at the Spine &

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Orthopedic Medical Center after imaging studies.

On examination, Plaintiff had pain in the

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lumbosacral region and restricted motion.

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revealed degenerative changes at multiple levels and the MRI was remarkable for multiple level

Dr. Nugent indicated that x-rays of the lumbar spine

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degenerative disc disease and foraminal narrowing. Dr. Nugent diagnosed lumbar spine pain and

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degenerative disc disease of the lumbar spine. Plaintiff underwent screening for osteoporosis. She

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was to continue with a cane, TENS unit, back support, Soma and Norco. Plaintiff wanted to continue

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with conservative care and was referred for consult and treatment of her cervical spine. AR 555-57.

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On November 5, 2012, Nurse Practitioner Stevens evaluated Plaintiff’s cervical spine.

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Plaintiff was negative for osteopenia and osteoporosis. Cervical spine x-rays were grossly negative

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with some mild degenerative changes. She was diagnosed with cervical spine pain and degenerative

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disc disease of the cervical spine. She was to undergo a MRI scan and have physical therapy. She

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was to continue Soma, Norco and Vitamin D, along with her TENS unit and lumbar corset, both of

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which worked for her lumbar spine. Dr. Nugent reviewed and approved the evaluation and treatment.

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AR 558-60.

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On November 26, 2012, Plaintiff sought follow-up treatment for her lumbar spine. Plaintiff

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reported benefit from a Toradol injection and was to receive another injection. Additionally, she was

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to start Ibuprofen. AR 562-65.

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On November 29, 2012, Plaintiff underwent a CT of her cervical spine, which showed

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degenerative changes of the cervical spine with straightening of the normal lordosis and neural

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foraminal narrowing, degenerative disc at C4-5 and C5-6 with posterior spondylotic ridges resulting in

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central canal stenosis and ossification of the stylohyoid ligament bilaterally, which may be seen with

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Eagle syndrome. AR 548-49.
On January 23, 2013, Plaintiff sought follow-up treatment for her cervical spine following

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imaging studies.

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degenerative changes, most severe at C4-5 and C5-6, and the MRI was remarkable for degenerative

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changes and disc disease. Dr. Nugent diagnosed cervical spine pain, degenerative disc disease of the

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cervical spine and osteopenia. Plaintiff was to continue with the TENS unit and given an injection.

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Dr. Nugent outlined “conservative care,” and Plaintiff was to proceed with pronex and consider

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cervical facet injections. AR 566-68.
On January 28, April 15 and June 11, 2013, Plaintiff sought follow-up treatment for her lumbar

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Dr. Nugent indicated that x-rays of the cervical spine revealed multiple level

spine.

She was continued on her medications, with the exception of Ibuprofen, which was
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discontinued in June. She also received Toradol injections to help with increased pain. AR 569-71,

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572-74. Physical therapy was recommended, which Plaintiff stopped attending due to cost. AR 572-

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74, 575-77.
Legal Standard

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Where the issue of continued disability or medical improvement is concerned, “a presumption

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of continuing disability arises” in the claimant’s favor once that claimant has been found to be

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disabled. Bellamy v. Sec’y of Health & Human Servs., 755 F.2d 1380, 1381 (9th Cir. 1985) (citing

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Murray v. Heckler, 722 F.2d 499, 500 (9th Cir.1983)).

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producing evidence sufficient to rebut [the] presumption of continuing disability.” Id.; see also

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Murray, 722 F.2d at 500 (“The Secretary ... has the burden to come forward with evidence of

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improvement.”).

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determination is based on legal error or is not supported by substantial evidence in the record as a

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whole. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984); accord Bellamy, 755 F.2d at 1381.

The Commissioner has the “burden of

A reviewing court will not set aside a decision to terminate benefits unless the

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The ALJ’s Decision

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A claimant who has been awarded disability benefits is required to undergo periodic disability

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reviews, “to determine whether a period of disability has ended.” Flaten v. Sec’y of Health & Human

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Servs., 44 F.3d 1453, 1460 (9th Cir. 1995); Schweiker v. Chilicky, 487 U.S. 412, 415, 108 S.Ct. 2460,

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101 L.Ed.2d 370 (1988) (most disability determinations must be reviewed at least once every three

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years); see 42 U.S.C. § 421(i)(1) (cases must be reviewed for continuing eligibility “at least once

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every three years”); 20 C.F.R. § 404.1594 (rule governing termination of benefits). To determine

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whether a claimant continues to be disabled for purposes of receiving SSI benefits, the ALJ must

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apply and follow the evaluation process set forth in 20 C.F.R. § 404.1594.

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On November 1, 2013, the ALJ issued a written decision and determined that Plaintiff’s

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comparison point decision (“CPD”) was dated October 20, 2015. The ALJ concluded that Plaintiff

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had the severe impairments of obesity, degenerative disc disease, migraine headaches, asthma and

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status post bilateral knee replacement. The ALJ found that medical improvement had occurred as of

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June 1, 2011, because there had been a decrease in the medical severity of her impairments since her

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CPD.

The ALJ determined that as of June 1, 2011, Plaintiff had the residual functional capacity
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(“RFC”) to lift and carry 10 pounds occasionally, less than 10 pounds frequently, could stand and walk

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for two hours in an 8-hour day, could sit for six hours in an 8-hour day, and could frequently balance,

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stoop, kneel, crouch, crawl and climb ramps or stairs, but could never climb ladders, ropes or

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scaffolds. Plaintiff also must avoid concentrated exposure to fumes, dusts, odors, gases and poor

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ventilation. The ALJ determined that Plaintiff could not perform her past relevant work, but could

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perform a significant number of jobs in the national economy. The ALJ therefore concluded that

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Plaintiff’s disability ended as of June 1, 2011. AR 18-24.

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SCOPE OF REVIEW

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Congress has provided a limited scope of judicial review of the Commissioner’s decision to

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deny benefits under the Act. In reviewing findings of fact with respect to such determinations, this

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Court must determine whether the decision of the Commissioner is supported by substantial evidence.

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42 U.S.C. § 405(g). Substantial evidence means “more than a mere scintilla,” Richardson v. Perales,

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402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112,

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1119, n. 10 (9th Cir. 1975). It is “such relevant evidence as a reasonable mind might accept as

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adequate to support a conclusion.” Richardson, 402 U.S. at 401. The record as a whole must be

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considered, weighing both the evidence that supports and the evidence that detracts from the

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Commissioner’s conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the

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evidence and making findings, the Commissioner must apply the proper legal standards.

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Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner’s

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determination that the claimant is not disabled if the Commissioner applied the proper legal standards,

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and if the Commissioner’s findings are supported by substantial evidence. See Sanchez v. Sec’y of

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Health and Human Servs., 812 F.2d 509, 510 (9th Cir. 1987).

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E.g.,

REVIEW

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In order to qualify for benefits, a claimant must establish that he or she is unable to engage in

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substantial gainful activity due to a medically determinable physical or mental impairment which has

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lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §

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1382c(a)(3)(A). A claimant must show that he or she has a physical or mental impairment of such

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severity that he or she is not only unable to do his or her previous work, but cannot, considering his or
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her age, education, and work experience, engage in any other kind of substantial gainful work which

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exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989).
DISCUSSION2

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Plaintiff contends that the ALJ erred by (1) failing to determine whether Plaintiff was disabled

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as of the date of the written decision as required by Social Security Ruling (“SSR”) 13-3p and (2)

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improperly discrediting Plaintiff’s testimony.

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1. Relevant Time Period for Disability Status

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Plaintiff first argues that the ALJ failed to adjudicate Plaintiff’s disability status through the

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date of the decision as required by SSR 13-3p. (Doc. 15 at pp. 6-7). The Commissioner counters that

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the ALJ was not required to determine whether Plaintiff was disabled through the date of his decision

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because Plaintiff did not meet the insured status requirements as of that date. (Doc. 16 at pp. 9-10).

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SSR 13-3p requires the ALJ to decide “whether the beneficiary is under a disability through

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the date of the [ALJ’s] determination or decision.” SSR 13-3p, 2013 WL 785484, at *4 (Feb. 21,

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2013). Although the Commissioner argues that Plaintiff did not meet the insured status requirements

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as of the date of the ALJ’s decision, the ALJ did not expressly state that Plaintiff was not disabled

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through the date of the decision, nor did the ALJ provide a reason for not determining Plaintiff’s

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disability status through the date of the decision. The Court cannot affirm the ALJ’s decision on a

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ground that the ALJ did not consider in making his decision. See Pinto v. Massanari, 249 F.3d 840,

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847 (9th Cir. 2001) (“[W]e cannot affirm the decision of an agency on a ground that the agency did

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not invoke in making its decision.”).

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Nonetheless, it is evident from the record that the ALJ specifically considered whether Plaintiff

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had been disabled from June 1, 2011, through the date of the decision. The ALJ summarized and

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discussed evidence spanning from 2010 through 2013 in determining Plaintiff’s RFC, including

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Plaintiff’s own testimony from September 2013. AR 20-23. Any failure of the ALJ to explicitly state

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that Plaintiff had not been disabled from June 1, 2011, through the date of the decision on November

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The parties are advised that this Court has carefully reviewed and considered all of the briefs, including
arguments, points and authorities, declarations, and/or exhibits. Any omission of a reference to any specific argument or
brief is not to be construed that the Court did not consider the argument or brief.

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1, 2013, cannot be considered reversible error. This is particularly true given that the bulk of the

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evidence and testimony discussed by the ALJ was from the period of time after Plaintiff’s disability

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was found to have ended (AR 20-22). See, e.g., Mendoza v. Colvin, No. 1:15-cv-00975-SKO, 2016

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WL 4126706, at *5 (“Court cannot find it a violation of SSR 13-3p to not use the magic words

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‘through the date of this decision’ when virtually all the evidence and testimony mentioned and

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analyzed comes from the period after the Plaintiff's disability was found to have ceased”). Further,

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Plaintiff cites no evidence demonstrating that she became disabled at some point between June 1,

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2011, and the date of the decision. (Doc. 15 at pp. 6-7). For these reasons, Plaintiff’s argument that

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the ALJ committed reversible error is without merit.

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2. Credibility

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Plaintiff next contends that the ALJ failed to provide clear and convincing reasons for finding
(Doc. 15 at pp. 7-11).

In deciding whether to admit a claimant’s subjective

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her not credible.

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complaints, the ALJ must engage in a two-step analysis. Batson v. Comm’r of Soc. Sec. Admin., 359

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F.3d 1190, 1196 (9th Cir. 2004). First, the claimant must produce objective medical evidence of his

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impairment that could reasonably be expected to produce some degree of the symptom or pain alleged.

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Id. If the claimant satisfies the first step and there is no evidence of malingering, the ALJ may reject

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the claimant’s testimony regarding the severity of his symptoms only if he makes specific findings and

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provides clear and convincing reasons for doing so. Id. The ALJ must “state which testimony is not

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credible and what evidence suggests the complaints are not credible.” Mersman v. Halter, 161

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F.Supp.2d 1078, 1086 (N.D. Cal. 2001) (“The lack of specific, clear, and convincing reasons why

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Plaintiff’s testimony is not credible renders it impossible for [the] Court to determine whether the

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ALJ’s conclusion is supported by substantial evidence.”). Factors an ALJ may consider include: (1)

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the applicant’s reputation for truthfulness, prior inconsistent statements or other inconsistent

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testimony; (2) unexplained or inadequately explained failure to seek treatment or to follow a

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prescribed course of treatment; and (3) the applicant’s daily activities. Smolen v. Chater, 80 F.3d 1273,

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1284 (9th Cir. 1996).

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At the first step of the analysis, the ALJ found that Plaintiff’s “medically determinable

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impairments can reasonably be expected to produce her alleged symptoms.” AR 21. At the second
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step, however, the ALJ found that Plaintiff’s statements about the intensity, persistence and limiting

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effects of those symptoms were not entirely credible. In so doing, the ALJ provided clear and

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convincing reasons for finding Plaintiff not fully credible. AR 21-23.

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Initially, the ALJ properly considered Plaintiff’s activities of daily living to be inconsistent

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with her complaints of disabling symptoms and limitations. AR 22. An ALJ’s credibility finding may

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consider a claimant’s daily activities which are inconsistent with allegations of disability. Lingenfelter

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v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007). In this instance, the ALJ considered Plaintiff’s report

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that she “watched television, took care of her personal grooming needs, did laundry, cleaned, used the

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computer, read, prepared simple meals, drove, . . . shopped once or twice a month for 30 to 60

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minutes, and visited with others.” AR 22, 251-58, 263-70. The ALJ also considered Plaintiff’s reports

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that she obtained a paralegal degree and was taking full-time college classes, along with statements

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that she could take care of her personal needs and housework and that her pain complaints had no

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impact on her activities of daily living. AR 22, 38-39, 422, 26, 519-22.

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Plaintiff argues that she cannot perform her daily activities on a sustained basis, and faults the

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ALJ for allegedly expecting her to “waste away.” (Doc. 15 at p. 9). While it is true that “[o]ne does

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not need to be ‘utterly incapacitated’ in order to be disabled,” Vertigan v. Halter, 260 F.3d 1044, 1050

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(9th Cir.2001), the ALJ reasonably found that Plaintiff’s activities, including her ability to shop,

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perform housework, take college classes and obtain a degree, were inconsistent with her allegations of

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total disability. See Stubbs–Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008) (claimant’s

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“normal activities of daily living, including cooking, house cleaning, doing laundry, and helping her

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husband in managing finances” was sufficient explanation for rejecting claimant’s credibility);

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Thomas, 278 F.3d at 959 (claimant’s ability to perform various household chores such as cooking,

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laundry, washing dishes and shopping, among other factors, bolstered “the ALJ’s negative conclusions

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about [her] veracity”); see also Branham v. Colvin, 2015 WL 8664157, at *2 (C.D. Cal. Dec. 11,

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2015) (ALJ properly considered plaintiff’s activities of daily living in assessing credibility; plaintiff

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was able to use a computer, attend church, shop, ride in a car, cook occasionally and take care of her

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own personal care); Butler v. Astrue, 2009 WL 1108504, at *4 (E.D. Wash. Apr. 24, 2009) (ALJ

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properly discounted claimant’s credibility in part because she was taking online college courses).
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“Even where those activities suggest some difficulty functioning, they may be grounds for discrediting

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the claimant’s testimony to the extent that they contradict claims of a totally debilitating impairment.”

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Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012).

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The ALJ next determined that certain of Plaintiff’s allegations were inconsistent with

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statements made to her physicians and with her conduct. An ALJ may properly consider a claimant’s

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inconsistent statements and testimony when assessing credibility. Thomas, 278 F.3d at 958–59 (ALJ

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may consider inconsistencies either in either claimant’s testimony or between her testimony and her

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conduct when weighing the claimant’s credibility); Smolen, 80 F.3d at 1284.

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considered Plaintiff’s assertions she could concentrate for only 0 to 20 minutes and could walk only
AR 22.

Here, the ALJ

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for six to ten feet and then must rest for five minutes.

The ALJ determined that these

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assertions were inconsistent with Plaintiff’s reports to Dr. Michiel that she was enrolled in college

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classes and could shop, cook and do household chores (AR 22, 519-22), and her reports to Dr. Nguyen

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that despite her pain there was no impact on her activities of daily living and she could take care of all

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her personal needs and housework (AR 22, 422-26).

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Plaintiff’s allegations of disability were inconsistent with her testimony not only to the Disability

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Hearing Officer in October 2012 that she was independent in all activities of daily living and was a

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full-time student pursuing a Bachelor’s degree taking online courses (AR 133), but also her statements

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to the ALJ that she obtained a paralegal degree and was taking full-time online classes for a bachelor’s

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degree (AR 38-39).

The ALJ also appropriately reasoned that

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The Commissioner acknowledges that the ALJ erred in his credibility determination by finding

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that Plaintiff told the Disability Hearing Officer that she could walk four miles. (Doc. 16 at p. 13; AR

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22-23).

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be disturbed because there is substantial evidence to support the ALJ’s other conclusions. See, e.g.,

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Batson, 359 F.3d at 1197 (upholding ALJ’s credibility determination even though one reason may

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have been in error).

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Although this finding may have been erroneous, the ALJ’s credibility determination will not

CONCLUSION

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Based on the foregoing, the Court finds that the ALJ’s decision is supported by substantial

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evidence in the record as a whole and is based on proper legal standards. Accordingly, this Court
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DENIES Plaintiff’s appeal from the administrative decision of the Commissioner of Social Security.

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The Clerk of this Court is DIRECTED to enter judgment in favor of Defendant Carolyn W. Colvin,

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Acting Commissioner of Social Security, and against Plaintiff Angelika Cutino-Neil.

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IT IS SO ORDERED.
Dated:

/s/ Barbara A. McAuliffe

September 8, 2016

_

UNITED STATES MAGISTRATE JUDGE

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