Montalvo v. Commissioner of Social Security
Filing
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ORDER Affirming Agency's Denial of Benefits and Ordering Judgment for Commissioner signed by Magistrate Judge Barbara A. McAuliffe on 09/27/2017. CASE CLOSED.(Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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PHILLIP JOHN MONTALVO,
Plaintiff,
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v.
Case No. 1:16-cv-0606-BAM
ORDER AFFIRMING AGENCY’S DENIAL
OF BENEFITS AND ORDERING
JUDGMENT FOR COMMISSIONER
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
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Defendant.
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Plaintiff Phillip Montalvo (“Plaintiff”) challenges the Social Security Commissioner’s decision
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denying his application for disability benefits. Specifically, Plaintiff’s sole argument is that the
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Administrative Law Judge (“ALJ”) improperly discounted his credibility. (Doc. 23 at 3-12). For the
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reasons outlined below, the Court disagrees.
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As a rule, an ALJ can reject a claimant’s subjective complaints by “expressing clear and
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convincing reasons for doing so.” Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir.
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2003). “General findings are insufficient; rather, the ALJ must identify what testimony is not credible
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and what evidence undermines a claimant’s complaints.” Brown-Hunter v. Colvin, 806 F.3d 487, 493
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(9th Cir. 2015) (citation and internal quotation marks omitted).
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Here, the ALJ provided several valid reasons for finding Plaintiff’s testimony “not credible.”
AR 21.
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First, the ALJ found that ample evidence demonstrated Plaintiff’s impairments were well
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maintained on medication. AR 21. The ALJ was entitled to reject Plaintiff’s credibility based on his
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successful response to medication. See Gerard v. Astrue, 406 Fed. Appx. 229, 232 (9th Cir. 2010)
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(unpublished) (ALJ properly discounted claimant’s asserted severity of his anxiety and depression,
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observing in part that claimant “was responding to psychotherapy and medication”); Morgan v. Apfel,
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169 F.3d 595, 599 (9th Cir. 1999) (ALJ properly discredited the claimant’s subjective complaints by
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citing physician’s report that mental symptoms improved with medication).
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As the ALJ noted, Plaintiff received various forms of treatment, and the record revealed that
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treatment had been relatively effective in controlling Plaintiff’s symptoms. Plaintiff received one
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injection for his left shoulder which appeared to resolve his shoulder pain. AR 739. He also reported
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on several occasions, and at the hearing, that his mental health symptoms had significantly improved
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with treatment with his therapy dog and taking his prescribed medications. AR 21, 41-42, 847, 855,
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952, 1010, 1212, 1393. Successful treatment was a valid consideration.
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Second, the ALJ found that Plaintiff’s extensive daily activities—including tending to all of his
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own personal needs, cooking, cleaning, doing dishes, driving, shopping for groceries, running errands,
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caring for his pet and the pets of his friends, exercising daily, taking his dog for walks, using the
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computer daily, taking public transportation, engaging in community volunteer work and frequently
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travelling domestically and internationally to destinations including Las Vegas, Ireland, Palm Springs,
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Denver, and taking a cruise to Mexico—were inconsistent with Plaintiff’s allegations of complete
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disability. AR 21; see Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989) (in discounting claimant
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credibility, ALJ may properly rely on daily activities inconsistent with claim of disability, including
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claimant’s ability to care for personal needs, drive, shop, and perform routine household chores).
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Third, the ALJ concluded that Plaintiff’s termination for embezzlement shortly before his
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period of disability undermined allegations that he was unable to work solely because of medical
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conditions. AR 21. A Plaintiff’s reason for leaving employment is a valid consideration in weighing
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credibility. Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001).
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claimant’s testimony by citing a claimant’s nondisability reasons for leaving employment immediately
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preceding the alleged onset date of disability. See Page v. Colvin, 620 Fed.Appx. 605, 605 (9th Cir.
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An ALJ may discredit a
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2015). Here, the ALJ stated that because there was no evidence of a significant deterioration in
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Plaintiff’s medical condition since he was fired, it was reasonable to conclude that Plaintiff’s
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impairments would not prevent the performance of his former job, since it was being performed
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adequately at the time of termination despite similar medical conditions. AR 21.
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and convincing reason to reject Plaintiff’s symptom testimony.
This was a clear
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Fourth, the ALJ observed that, despite Plaintiff’s allegations of an inability to concentrate,
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remember remote details, or behave appropriately in a public setting, he could process questions
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without difficulty, respond without delay, and pay attention throughout the hearing. AR 21; see Orn v.
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Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (ALJ’s “observations of a claimant’s functioning” at the
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hearing are permissible as part of the overall credibility assessment but “may not form the sole basis
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for discrediting a person’s testimony”).
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Finally, Plaintiff’s allegations of severe physical and mental symptoms contradicted the
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objective medical evidence. AR 15. An ALJ is entitled to consider whether there is a lack of medical
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evidence to corroborate a claimant’s alleged pain symptoms so long as it is not the only reason for
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discounting a claimant’s credibility. Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005). The
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ALJ noted that Plaintiff’s subjective statements were in conflict with the weight of the medical
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evidence including the opinions by Plaintiff’s physicians, psychologists, and the licensed clinical
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social worker (“LCSW”). AR 20. For example, Dr. Dinwoodie opined that Plaintiff had a left wrist
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injury, but Plaintiff gave poor effort during attempts to test his grip strength. AR 19. While Dr.
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Dinwoodie opined Plaintiff was precluded from heavy or forceful gripping, Plaintiff did not have any
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whole person impairment. AR 20, 551. Reviewing physicians Dr. Surrosco and Dr. Bugg both opined
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that Plaintiff could perform a range of light work. AR 73-74, 94-95. Additionally mental health
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reviewing physicians Drs. Jennings and Gregg opined that Plaintiff was capable of performing simple,
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unskilled work. AR 20-21; 74-75, 95-96. LCSW, Delia Gonzales, noted a normal mental status
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examination and she encouraged Plaintiff to find a job and exercise more. AR 17.
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It was proper for the ALJ to consider the inconsistency between Plaintiff’s subjective symptom
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testimony and the objective medical evidence. See 20 C.F.R. §§ 404.1529 (c)(1) & 2 and
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416.929(c)(1) & (2) (2013) (requiring consideration of medical history, medical signs and laboratory
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findings, and objective medical evidence in evaluating the extent and impact of alleged pain); Batson
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v. Comm’r of the Social Security Admin., 359 F.3d 1190, 1196 (9th Cir. 2004) (holding ALJ properly
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relied on objective medical evidence and medical opinions in determining credibility); Nyman v.
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Heckler, 779 F.2d 528, 530 (9th Cir. 1986) (discussing language of Act requiring consideration of
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medical evidence in assessing subjective complaints).
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Accordingly, the ALJ gave several clear and convincing reasons for finding that Plaintiff was
not credible.
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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 Nancy A. Berryhill,
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Acting Commissioner of Social Security, and against Plaintiff Phillip John Montalvo.
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IT IS SO ORDERED.
Dated:
/s/ Barbara
September 27, 2017
A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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