See v. CSS

Filing 16

ORDER REGARDING Plaintiff's Social Security Complaint, signed by Magistrate Judge Barbara A. McAuliffe on 9/16/16. CASE CLOSED. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LORI J. SEE,

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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-00692-BAM
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) ORDER REGARDING PLAINTIFF’S
) SOCIAL SECURITY COMPLAINT
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INTRODUCTION

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Plaintiff Lori J. See (“Plaintiff”) seeks judicial review of a final decision of the Commissioner

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of Social Security (“Commissioner”) denying her applications for disability insurance benefits

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(“DIB”) pursuant to Title II of the Social Security Act and for supplemental security income (“SSI”)

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under Title XVI of the Social Security Act. The matter is currently before the Court on the parties’

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

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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 to deny benefits.

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FACTS AND PRIOR PROCEEDINGS

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In June 2012, Plaintiff filed applications for disability insurance benefits and supplemental

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security income. AR 170-73, 177-82.1 Plaintiff alleged that she became disabled on October 16,

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2010, due to a right arm injury, distal clavicle, arthritis, bursitis in shoulder, and arthritis in lower

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back, hands and knees.

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reconsideration.

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Administrative Law Judge (“ALJ”). ALJ G. Ross Wheatley held a hearing on October 9, 2013, and

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issued an order denying benefits on November 7, 2013. AR 18-32, 38-65. Plaintiff sought review of

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the ALJ’s decision, which the Appeals Council denied, making the ALJ’s decision the

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AR 112, 214.

AR 112-16, 119-24.

Plaintiff’s application was denied initially and on

Subsequently, Plaintiff requested a hearing before an

Commissioner’s final decision. AR 1-3, 14. This appeal followed.

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Hearing Testimony

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The ALJ held a hearing on October 9, 2013, in Stockton, California. AR 38-65. Plaintiff

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appeared and testified. She was represented by counsel, Tony Ocha. Impartial Vocational Expert

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(“VE”) Steven Schmidt also appeared. AR 40-41.

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In response to questioning by the ALJ, Plaintiff testified that she was 53 years old, 5’5” tall

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and weighed 170 pounds. Plaintiff graduated from high school and has a Bachelor of Science degree

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in Christian education. She can read, write, add, subtract, multiply and divide. AR 43-44.

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Plaintiff testified that she stopped working in October 2010 because she injured her shoulder

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on the job, and she never returned to work. Plaintiff confirmed that she suffered a right arm injury and

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has bursitis in her right shoulder. She also has lower back pain and arthritis in her hands and knee.

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AR 45-46.

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When asked about her right shoulder, Plaintiff testified that she injured it at work in August

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2010. She was placed on light duty and then reinjured it. She had surgery to remove a protruding

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bone in July 2011, followed by physical therapy. Plaintiff reported that she can only lift about 10 to

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15 pounds on that side. She was told that she would never have full use of that shoulder and it was

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totally disabled. At the hearing, Plaintiff was able to extend her arm horizontally and raise it above

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References to the Administrative Record will be designated as “AR,” followed by the appropriate page number.

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her shoulder. Plaintiff last saw a doctor for her shoulder in 2012. The doctor recommended exercises

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to do at home, but Plaintiff had not been doing them because they did not help. AR 46-48.

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When asked about the arthritis in her hands, Plaintiff testified that she cannot grip very well

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with them and sometimes drops things. Her physician prescribed medication therapy to help with pain

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management. She also was prescribed medication for severe tremors in her right hand. She still has

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tremors once or twice a week, but they are not as severe. AR 49.

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When questioned about her lower back pain, Plaintiff testified that she wakes up severely sore

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across her lower spine area. She feels stiffness and pain, and it will seize up on her about once or

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twice a day. Her back is better when walking around, but walking with her knee is “not so good

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sometimes.” AR 49-50. Plaintiff is going to see an orthopedic doctor for her knee. Her right knee has

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some arthritis, but the left knee is the one causing her issue. Her left knee has a lot of swelling and

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pain, and she wears a knee brace some days. The doctor did not prescribe the brace, but told Plaintiff

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that she could get one if she wanted. AR 50-51.

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Plaintiff reported that she had been more active recently because her father had surgery. She

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has been taking him to doctor’s appointments because he cannot drive. She also takes her stepmother

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to appointments. AR 51-52.

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When asked about her daily activities, Plaintiff testified that she can shower and dress,

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vacuum, sweep, cook and shop. She can drive and has been driving her dad three times a week. She

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can walk less than a half mile before she would have to rest about half an hour. When sitting, she has

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to get up and move every 15 to 20 minutes for 5 or 10 minutes. She can stand about 20 minutes

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without severe pain. At home, she likes to read about an hour and a half each day. She has a home

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computer, but her internet is shut down. She had a Facebook page that she would look at for an hour

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or two a day. Plaintiff also testified that she socializes with other family members, including her

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brother, dad and church family. She attends church every Sunday and Wednesday when she can. AR

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52-56.

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In response to questioning from her attorney, Plaintiff testified that her worker’s compensation

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claim had been settled. She clarified that her back pain extends down the back of both legs after

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walking or housework. She lies down an hour and a half to two hours each day to help with her back.
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Lying down is more comfortable than sitting in a chair. When asked about her hands, Plaintiff

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reported that it affected her ability to type and it was sometimes difficult to grip wet dishes.

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58.

AR 56-

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

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Stephen Schmidt. The VE confirmed that Plaintiff’s past work was identified as sorter, hand packer,

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childcare attendant and child daycare worker. AR 60-61. In the first hypothetical, the ALJ asked the

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VE to assume a person of Plaintiff’s age, education and work experience capable of performing light

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work with the following limitations: occasional ladders, ropes, scaffolds, ramps, stairs, balancing,

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stooping, crouching, kneeling and crawling; overhead reaching limited to frequent with the right upper

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extremity; and handling limited to frequent bilaterally. The VE testified that this person could perform

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Plaintiff’s past work as a child daycare worker. AR 61.

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

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education and work experience capable of performing light work with the following limitations: a

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sit/stand option provided the person is not off task more than 10 percent of the period; occasional

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ladders, ropes, scaffolds, ramps, stairs, balancing, stooping, crouching, kneeling and crawling;

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overhead reaching limited to frequent with the right upper extremity; and handling limited to frequent

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bilaterally. The VE testified that this person could not perform Plaintiff’s past work, but could

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perform other work such as parking attendant, information clerk, and office helper. AR 61-62.

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For the third hypothetical, the ALJ asked the VE to assume a person of Plaintiff’s age,

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education and work experience capable of performing sedentary work with the following limitations:

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occasional ladders, ropes, scaffolds, ramps, stairs, balancing, stooping, crouching, kneeling or

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crawling; overhead reaching limited to frequent with the right upper extremity; and handling limited to

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frequent bilaterally. The VE testified that there would be jobs this person could perform, including

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assembly, order clerk and information clerk. AR 62-63.

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If the ALJ were to add to any of the hypotheticals that due to combination of medical

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conditions and associated pain, this person would probably require additional breaks throughout the

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day of 15 minutes every two hours in addition to ordinarily scheduled breaks, the VE testified that

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there would not be work that the person could perform. AR 63-64.
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Medical Record

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The entire medical record was reviewed by the Court. AR 274-592. The relevant medical

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evidence will be referenced below as necessary to this Court’s decision.

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The ALJ’s Decision

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Using the Social Security Administration’s five-step sequential evaluation process, the ALJ

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determined that Plaintiff did not meet the disability standard. AR 23-32. More particularly, the ALJ

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found that Plaintiff had not engaged in any substantial gainful activity since August 17, 2010, her

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alleged onset date. AR 23. Further, the ALJ identified status post right shoulder arthroscopic surgery,

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degenerative disc disease of the lumbar spine and arthritis in the hands and knees as severe

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impairments. Nonetheless, the ALJ determined that the severity of Plaintiff’s impairments did not

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meet or exceed any of the listed impairments. AR 24-25. Based on his review of the entire record, the

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ALJ determined that Plaintiff retained the residual functional capacity (“RFC”) to perform light work,

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except that Plaintiff was limited to occasionally climbing ladders, ropes, scaffolds, ramps, stairs,

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balancing, stooping, crouching, kneeling, and crawling.

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overhead reaching with the right upper extremity and frequent handling bilaterally. AR 25-31. The

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ALJ found that Plaintiff could perform her past relevant work as a child daycare worker.

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therefore concluded that Plaintiff was not disabled under the Social Security Act from August 17,

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2010, through the date of decision. AR 31-32.

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Plaintiff also was limited to frequent

The ALJ

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.

E.g.,

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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).
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). The

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burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir.

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1990).
DISCUSSION2

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The sole issue is whether the ALJ erred in his evaluation of Plaintiff’s subjective complaints.

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Plaintiff argues that the ALJ failed to articulate sufficient reasons to find her not credible. The

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Commissioner counters that the ALJ provided multiple specific and well-supported reasons for finding

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that Plaintiff’s allegations were not fully credible.

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In deciding whether to admit a claimant’s subjective complaints of pain, the ALJ must engage

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in a two-step analysis. Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004).

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First, the claimant must produce objective medical evidence of her impairment that could reasonably

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be expected to produce some degree of the symptom or pain alleged. Id. If the claimant satisfies the

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first step and there is no evidence of malingering, the ALJ may reject the claimant’s testimony

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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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regarding the severity of her symptoms only if he makes specific findings and provides clear and

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

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evidence suggests the complaints are not credible.” Mersman v. Halter, 161 F.Supp.2d 1078, 1086

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(N.D. Cal. 2001) (“The lack of specific, clear, and convincing reasons why Plaintiff’s testimony is not

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credible renders it impossible for [the] Court to determine whether the ALJ’s conclusion is supported

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by substantial evidence.”). Factors an ALJ may consider include: (1) the claimant’s reputation for

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truthfulness, prior inconsistent statements or other inconsistent testimony; (2) unexplained or

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inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3)

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the claimant’s daily activities. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996).

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In this instance, the ALJ found that the credibility of Plaintiff’s statements was weakened by

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inconsistencies between her allegations, her statements regarding daily activities and the medical

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evidence. AR 31. Contrary to Plaintiff’s suggestion that the ALJ merely set forth boilerplate language

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in rejecting her credibility, the Court finds that the ALJ provided clear and convincing reasons for

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finding Plaintiff not fully credible. AR 26-31.

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First, the ALJ discounted Plaintiff’s credibility because she “described daily activities that

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[were] inconsistent with [her] allegations of disabling symptoms and limitations.” AR 26. An ALJ

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may properly consider a plaintiff’s daily activities when discounting a plaintiff’s subjective testimony.

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Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009) (evidence that plaintiff

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“exercised and undertook several projects after he retired” suggested that his “later claims about the

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severity of his limitations were exaggerated”). Here, the ALJ considered Plaintiff’s reported ability to

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complete her personal care, prepare meals, perform light household cleaning, including dusting and

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vacuuming, use public transportation, go out alone, walk to the store, drive, shop in stores, interact

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with friends on social networking sites, attend church and assist in caring for her elderly father. AR

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26, 51-56, 222-25, 322. The ALJ reasonably found that these daily activities were inconsistent with

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her allegations of disabling symptoms and limitations. See Stubbs–Danielson v. Astrue, 539 F.3d

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1169, 1175 (9th Cir. 2008) (claimant’s “normal activities of daily living, including cooking, house

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cleaning, doing laundry, and helping her husband in managing finances” was sufficient explanation for

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rejecting claimant’s credibility); Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (claimant’s
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ability to perform various household chores such as cooking, laundry, washing dishes and shopping,

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among other factors, bolstered “the ALJ’s negative conclusions about [her] veracity”); see also

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Branham v. Colvin, 2015 WL 8664157, at *2 (C.D. Cal. Dec. 11, 2015) (ALJ properly considered

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plaintiff’s activities of daily living in assessing credibility; plaintiff was able to use a computer, attend

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church, shop, ride in a car, cook occasionally and take care of her own personal care).

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Plaintiff contends that there is no indication that she is “capable of performing anything other

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than a few basic daily activities.” (Doc. 14 at p. 11). However, “[e]ven where those [daily] activities

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suggest some difficulty functioning, they may be grounds for discrediting the claimant’s testimony to

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the extent that they contradict claims of a totally debilitating impairment.” Molina v. Astrue, 674 F.3d

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1104, 1113 (9th Cir. 2012); see also Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014)

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(“Engaging in daily activities that are incompatible with the severity of the symptoms alleged can

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support an adverse credibility determination.”). Further, because the ALJ’s interpretation of the

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evidence is reasonable and supported by substantial evidence then it is not Court’s role to second-

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

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Second, the ALJ discounted Plaintiff’s allegations because her treatment had been “essentially

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routine and/or conservative in nature.” AR 27. “[E]vidence of ‘conservative treatment’ is sufficient to

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discount a claimant’s testimony regarding severity of an impairment.” Parra v. Astrue, 481 F.3d 742,

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751 (9th Cir. 2007) (citation omitted). Here, the ALJ considered Plaintiff’s testimony that physical

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therapy helped her right shoulder and she had stretches and home exercises that she did not complete.

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AR 27, 46, 47-48. See Tommasetti v. Astrue, 533 F.3d 1035, 1039-40 (9th Cir. 2008) (because the

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claimant responded favorably to conservative treatment, including physical therapy, the ALJ properly

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found that such treatment undermined the claimant’s subjective reports regarding the disabling nature

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of his pain).

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Plaintiff argues that the ALJ’s decision overlooks the steroid injections and surgery for her

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shoulder, which do not equate to conservative treatment. AR 46, 324, 415, 437. However, the ALJ

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acknowledged Plaintiff’s surgery, but noted that her shoulder injury was “treated and responded to

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treatment, which resulted in full range of motion.” AR 30, 447, 534. Plaintiff also testified that after

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surgery and physical therapy, she did not have any continuing treatment for her right shoulder. AR 47.
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Further, at least one physician characterized Plaintiff’s shoulder treatment as conservative following

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surgery. AR 483. See, e.g., Barajas v. Colvin, 2016 WL 320104, at *4-5 (C.D. Cal. Jan. 26, 2016)

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(conservative treatment after surgeries was clear and convincing reason for discrediting testimony);

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Ortez v. Comm’r of Soc. Sec., 2012 WL 3727136, at *7-8 (E.D. Cal. Aug. 24, 2012) (upholding

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credibility determination where ALJ considered, among other things, claimant’s conservative

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treatment following surgery).

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Third, the ALJ discounted Plaintiff’s testimony because her reasons for stopping work were

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“unrelated to her own medical condition.” AR 27. The ALJ noted that Plaintiff “indicated she

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stopped working as her job was seasonal.” AR 27.

In assessing credibility, the ALJ was not

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precluded from considering the fact that Plaintiff was unemployed for reasons other than her

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disability.

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claimant’s alleged disability not credible based in part on the fact that the claimant left work for

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economic rather than medical reasons); Drouin v. Sullivan, 966 F.2d 1255, 1258 (9th Cir. 1992) (pain

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testimony properly rejected because claimant was laid off from work for reasons unrelated to her

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pain). As acknowledged by the ALJ, Plaintiff testified that she had performed seasonal work. AR 45.

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The ALJ’s determination is supported by substantial evidence in the record. In November 2010,

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Plaintiff informed Dr. Alexis Dasig that she had completed her seasonal work and had been laid off for

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at least a week. AR 284. After her surgery in 2011, Plaintiff reported to Dr. C. Scott Walthour that she

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was doing well after surgery, she primarily did seasonal work and there was no work available for her

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at that time. AR 459.

See Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001) (ALJ properly found

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Fourth, the ALJ found that “the objective findings in this case fail to provide strong support for

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the claimant’s allegations of disabling symptoms and limitations.” AR 27. An ALJ is entitled to

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consider whether there is a lack of medical evidence to corroborate a claimant’s alleged symptoms so

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long as it is not the only reason for discounting a claimant’s credibility. Burch v. Barnhart, 400 F.3d

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676, 680–81 (9th Cir. 2005); Batson, 359 F.3d at 1196-97 (ALJ properly relied on objective medical

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evidence and medical opinions in determining credibility); see also Parra, 481 F.3d at 750 (ALJ

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reasonably found complaints of disabling knee pain not credible in light of lab tests showing knee

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function within normal limits). Here, the ALJ relied on objective evidence from 2012 and 2013,
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among other records, which demonstrated that Plaintiff had full range of motion, intact rotator cuff

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strength, no atrophy or instability and strength in her right shoulder after surgery. AR 476, 483, 534.

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The ALJ also relied, in part, on objective evidence from 2012 demonstrating that Plaintiff had normal

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range of motion in her knees, along with Plaintiff’s report in 2013 that she was able to walk five to six

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blocks. AR 349, 534. With respect to her degenerative disc disease of the lumbar spine, the ALJ

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considered objective evidence from November 2011 indicating Plaintiff had normal range of motion,

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no obvious signs of inflammation and normal bulk, tone and strength.

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additionally relied on Plaintiff’s report in 2013 that she was able to walk five or six blocks. AR 534.

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Furthermore, the ALJ accounted for any limitations resulting from Plaintiff’s shoulder, hand and knee

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arthritis and lumbar spine degenerative disc disease in the RFC. AR 29. Plaintiff has not challenged

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the RFC finding.

AR 323-24.

The ALJ

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Fifth, and finally, the ALJ appropriately incorporated his observations when considering

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Plaintiff’s allegations of pain and functional limitations. AR 27. An ALJ’s “personal observations

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may be used … in the overall evaluation of the credibility of the individual’s statements.” Orn v.

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Astrue, 495 F.3d 625, 639 (9th Cir. 2007). In this instance, the ALJ recognized that his “observations

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at a hearing do not, alone, constitute substantial evidence.” AR 27. However, the ALJ further

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reasoned that “said observations, when combined with other inconsistencies present in the record as to

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the degree of pain and functional limitation allegedly experienced by the claimant, are worthy of

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consideration in reaching a credibility determination.”

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statements regarding his observations are generalities, and are not clear and convincing reasons

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supporting the ALJ’s disbelief of Plaintiff’s testimony. (Doc. 14 at p. 12 and n. 2). Despite Plaintiff’s

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assertion, it is evident from the record that the ALJ relied on personal observations at the hearing,

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which included Plaintiff’s ability to extend her arm out horizontally in front of her and raise it above

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her shoulder. Indeed, the ALJ specifically requested that Plaintiff perform these actions and then

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ensured that her demonstrated abilities were documented on the record. AR 46-47.

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AR 27.

Plaintiff asserts that the ALJ’s

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 Lori J. See.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

September 16, 2016

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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