Banuelos v. Commissioner of Social Security

Filing 30

ORDER Regarding Plaintiff's Social Security Complaint signed by Magistrate Judge Erica P. Grosjean on 08/17/2017. CASE CLOSED.(Flores, E)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

IRMA PACHECO DE BANUELOS,
Plaintiff,

12
v.

13
14

Defendant.
16

I.

17

19
20
21

Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for
disability insurance benefits pursuant to Title XVI of the Social Security Act. The matter is
currently before the Court on the parties’ briefs, which were submitted without oral argument to
the Honorable Erica P. Grosjean, United States Magistrate Judge.1
II.

23

25
26

INTRODUCTION
Plaintiff Irma Pacheco De Banuelos seeks judicial review of a final decision by the

22

24

ORDER REGARDING PLAINTIFF’S
SOCIAL SECURITY COMPLAINT

NANCY A. BERRYHILL, Acting
Commissioner of Social Security

15

18

Case No. 1:16-cv-00687-EPG

BACKGROUND AND PRIOR PROCEEDINGS2
Plaintiff was 39 years old at the time of the alleged onset of her disability. AR 81. She

completed her education through the eighth grade in Mexico. AR 35. Plaintiff worked part-time
as a housekeeper from 1997 to May 2004, and as a sorter on a seasonal basis from 1994 to 2001.
AR 37-38, 265. Plaintiff is 5’5” and weighs 217 pounds. AR 81. She lives in a house with her

27
1

28

2

The parties consented to the jurisdiction of the United States Magistrate Judge. (ECF Nos. 9, 11.)
References to the Administrative Record will be designated as “AR,” followed by the appropriate page number.

1

1

husband. AR 35. Her daily activities include visiting her daughter and grandson, sitting outside,

2

watching TV, doing crosswords and other puzzles, and napping. AR 36-37.
Plaintiff’s alleged disability is due to injuries to her back, neck, and right wrist, and

3
4

depression and anxiety. AR 38-46. On July 30, 2012, Plaintiff filed an application for

5

Supplemental Security Income benefits under Title XVI, alleging a disability beginning on

6

October 15, 2004. AR 189. The application was denied initially on January 11, 2013 and on

7

reconsideration on April 30, 2013. AR 111-114, 120-124. Plaintiff filed a request for a hearing on

8

June 21, 2013. AR 126-128. The hearing was then conducted before Administrative Law Judge

9

Sharon L. Madsen (the “ALJ”) on August 12, 2014. AR 32-50. On October 3, 2014, the ALJ

10

issued an unfavorable decision, determining that Plaintiff was not disabled. AR 8-29. Plaintiff

11

filed an appeal of this decision with the Appeals Council. The Appeals Council denied the appeal

12

on March 17, 2016, rendering the ALJ’s order the final decision of the Commissioner. AR 1-6.
Plaintiff now challenges that decision, arguing that the ALJ incorrectly found Plaintiff not

13
14

fully credible and improperly rejected Plaintiff’s pain and symptom testimony.3 (ECF No. 20).

15

Defendant argues that the ALJ provided specific and legitimate reasons for discounting Plaintiff’s

16

testimony and properly considered Plaintiff’s medical records as a whole. (ECF No. 28).

17

III.

18

THE DISABILITY DETERMINATION PROCESS
To qualify for benefits under the Social Security Act, a plaintiff must establish that he or

19

she is unable to engage in substantial gainful activity due to a medically determinable physical or

20

mental impairment that has lasted or can be expected to last for a continuous period of not less

21

than twelve months. 42 U.S.C. § 1382c(a)(3)(A). An individual shall be considered to have a

22

disability only if:

23
24
25
26
27
28

3

Plaintiff also argues that SSR 16-3p, effective March 28, 2016, should be applied retroactively in place of
SSR 96-7p. (ECF Nos. 20, p. 11 n.1 and 29, p. 3-4). Defendant argues that SSR 16-3p does not have retroactive
effect. (ECF No. 28, p. 13). The Court notes that Defendant points to Smith v. Colvin, No. 3:14-cv-1752 (SRU), 2016
WL 1170910, at *7 n.3 (D. Conn. Mar. 23, 2016), as support for its position that SSR 16-3p does not apply
retroactively. (ECF No. 28, p. 13). However, whether SSR 16-3p or 96-7p applies is not determinative to this claim’s
outcome and the Court therefore does not address the issue of retroactivity here. Moreover, the Ninth Circuit has
stated that SSR 16-3p “makes clear what our precedent already required: that assessments of an individual's
testimony by an ALJ are designed to ‘evaluate the intensity and persistence of symptoms after [the ALJ] find[s] that
the individual has a medically determinable impairment(s) that could reasonably be expected to produce those
symptoms,’ and not to delve into wide-ranging scrutiny of the claimant's character and apparent truthfulness.”
Trevizo v. Berryhill, 862 F.3d 987, 995 n.5 (9th Cir. 2017).

2

. . . his physical or mental impairment or impairments are of such severity that he
is not only unable to do his previous work, but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful
work which exists in the national economy, regardless of whether such work
exists in the immediate area in which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he applied for work.

1
2
3
4

42 U.S.C. § 1382c(a)(3)(B).

5
6
7
8
9

To achieve uniformity in the decision-making process, the Commissioner has established
a sequential five-step process for evaluating a claimant’s alleged disability. 20 C.F.R. §
404.1520(a)-(f). The ALJ proceeds through the steps and stops upon reaching a dispositive
finding that the claimant is or is not disabled. 20 C.F.R. § 404.1520(a)(4). The ALJ must
consider objective medical evidence and opinion testimony. 20 C.F.R. § 404.1527, 404.1529.

10
11
12
13

Specifically, the ALJ is required to determine: (1) whether a claimant engaged in
substantial gainful activity during the period of alleged disability; (2) whether the claimant had
medically-determinable “severe” impairments;4 (3) whether these impairments meet or are
medically equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P,

14

Appendix 1; (4) whether the claimant retained the residual functional capacity (“RFC”) to

15

perform her past relevant work;5 and (5) whether the claimant had the ability to perform other

16
17

jobs existing in significant numbers at the regional and national level. 20 C.F.R. § 404.1520(a)(f).

18
19
20
21
22
23
24

Using the Social Security Administration’s five-step sequential evaluation process, the
ALJ determined that Plaintiff did not meet the disability standard. AR 14-24. The ALJ found that
Plaintiff had not engaged in substantial gainful activity since July 30, 2012, the date specified in
her application. AR 16. The ALJ identified lumbar degenerative disc disease, status-post
laminectomy; thoracic spine degenerative disc disease; cervical spine degenerative disc disease;
right wrist subluxation of the right radial ulnar joint, status-post Darrach procedure; obesity; and
major depressive disorder, as a medically determinable combination of impairments. AR 16.

25
4

26
27
28

“Severe” simply means that the impairment significantly limits the claimant’s physical or mental ability to do basic
work activities. See 20 C.F.R. § 404.1520(c).
5
Residual functional capacity captures what a claimant “can still do despite [his or her] limitations.” 20 C.F.R. §
404.1545. “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in
which the ALJ assesses the claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 n. 2
(9th Cir. 2007).

3

1

However, the ALJ determined that the severity of Plaintiff’s impairments did not meet or

2

medically equal any of the listed impairments. AR 16.
Based on a review of the entire record, the ALJ determined that Plaintiff had the RFC to:

3

[L]ift and/or carry 20 pounds occasionally and 10 pounds frequently. She could
sit, stand, and/or walk 6 to 8 hours in an 8-hour workday. This capacity most
closely approximates light work as defined in 20 CFR 416.967(b) except she
could occasionally climb, stoop, crouch, or crawl. She could frequently kneel or
balance. She cannot climb ladders, ropes, or scaffolds. She could occasionally
reach overhead, push, or pull with the right upper extremity. Mentally, she is
limited to simple, routine tasks.

4
5
6
7
8
9
10
11

AR 18. Plaintiff was capable of performing her past relevant work as a Sorter despite her physical
and mental limitations. AR 23. The ALJ found that because Plaintiff is capable of performing her
past relevant work, she is not disabled within the meaning of the Social Security Act. AR 23.
IV.

Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine

12
13
14
15

whether: (1) it is supported by substantial evidence; and (2) it applies the correct legal standards.
See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d
1071, 1074 (9th Cir. 2007).
“Substantial evidence means more than a scintilla but less than a preponderance.”

16
17
18
19
20
21
22
23
24
25
26
27
28

STANDARD OF REVIEW

Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). It is “relevant evidence which,
considering the record as a whole, a reasonable person might accept as adequate to support a
conclusion.” Id. “Where the evidence is susceptible to more than one rational interpretation, one
of which supports the ALJ's decision, the ALJ's conclusion must be upheld.” Id.
V.

DISCUSSION
A. Evaluation of Plaintiff’s Credibility
i. Legal standards
To evaluate the credibility of a claimant’s testimony regarding subjective complaints of

pain and other symptoms, an ALJ must engage in a two-step analysis. Vasquez v. Astrue, 572
F.3d 586, 591 (9th Cir. 2009). First, the ALJ must determine whether the claimant has presented
objective medical evidence of an underlying impairment that could reasonably be expected to
produce the pain or other symptoms alleged. Id. The claimant is not required to show that the
4

1

impairment “could reasonably be expected to cause the severity of the symptom she has alleged;

2

she need only show that it could reasonably have caused some degree of the symptom.” Id.

3

(emphasis added). If the claimant meets the first test and there is no evidence of malingering, the

4

ALJ can only reject the claimant's testimony regarding the severity of the symptoms for “specific,

5

clear and convincing reasons” that are supported by substantial evidence. Brown-Hunter v.

6

Colvin, 806 F.3d 487, 493 (9th Cir. 2015).

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

An ALJ can consider a variety of factors in assessing a claimant’s credibility, including:
(1) ordinary techniques of credibility evaluation, such as the claimant’s reputation
for lying, prior inconsistent statements concerning the symptoms, and other
testimony by the claimant that appears less than candid; (2) unexplained or
inadequately explained failure to seek treatment or to follow a prescribed course
of treatment; and (3) the claimant’s daily activities. If the ALJ’s finding is
supported by substantial evidence, the court may not engage in second-guessing.
Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (citations and internal quotation marks
omitted).
Other factors can include a claimant’s work record and testimony from physicians and
third parties concerning the nature, severity, and effect of the symptoms of which the claimant
complains. Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). An ALJ can only rely
on an inconsistency between a claimant’s testimony and the objective medical evidence to reject
that testimony where the ALJ specifies which “complaints are contradicted by what clinical
observations.” Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1297 (9th Cir. 1999).
An ALJ properly discounts credibility if she makes specific credibility findings that are properly
supported by the record and sufficiently specific to ensure a reviewing court that she did not
“arbitrarily discredit” the testimony. Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991).
ii. Analysis
Here, the ALJ found that Plaintiff’s medically determinable impairments could reasonably
be expected to cause the alleged symptoms. However, the ALJ questioned Plaintiff’s credibility
with respect to the intensity, persistence and limiting effects of her symptoms (AR 19), stating:

26
27
28

I also considered the third party report from the claimant’s daughter who reported
she spends a good deal of time with the claimant watching television, playing
games, and visiting. However, Ms. Cercado also stated the claimant is in constant
5

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

pain and is unable to sit, stand, or walk more than 10 minutes without a break. I
find this inconsistent with the claimant’s shared activities with her daughter and
grandson as it would reasonably require a greater sitting capacity to perform the
activities she describes. Indeed, Ms. Cercado stated the claimant watches
television until her husband arrives. She stated the claimant spends time
completing crossword puzzles. Both of these activities suggest the claimant is
able to sit for longer periods than Ms. Cercado alleges. In addition, the third party
reported the claimant prepares simple meals that take no longer than 10 to 15
minutes to make. She is able to do laundry twice weekly, she walks and rides in
cars when traveling, and is able to shop in stores 20 to 30 minutes at a time. She
can pay bills, handle finances, read, and talk to family on the phone.
I give little weight to the third party reports due to the internal inconsistencies.
Furthermore, this report suggests the claimant is capable of performing exertional
and nonexertional activities for longer periods than alleged.
The claimant’s presentation at the hearing was not entirely persuasive. The
claimant testified she drives, but elsewhere stated she cannot. She does have a
valid driver’s license. She reported she does household chores, but also denied she
is able to do so. She testified she does not socialize, but elsewhere, she reports
spending time with family on a daily basis. She reported she is unable to deal with
crowds, but admitted she goes shopping with her husband every week. She
alleged constant neck pain, but she refused recommended treatment. She reported
mental impairments with significant symptoms, but the treatment records
document improvement with medication. Overall, I found the claimant’s
testimony was not fully credible or consistent with the remainder of the record.
AR 22 (internal citations omitted).
Plaintiff challenges the ALJ’s credibility determination, arguing that the evidence as a

18

whole indicates that Plaintiff continued to experience pain and that the ALJ took the perceived

19

inconsistencies out of context. AR 13-14. Plaintiff further argues that the medical opinions relied

20

upon by the ALJ were given prior to a July 2013 MRI discussing a possible second back surgery,

21

and thus the examining physicians did not have access to the entire record as it currently stands.

22

AR 13. Defendant argues that the ALJ properly found Plaintiff’s statements to be inconsistent,

23

and that the ALJ noted the July 2013 MRI results in her opinion. (ECF No. 28, p. 14-16).

24

The ALJ is required to provide “specific, clear and convincing reasons” for finding a

25

plaintiff not credible. Vasquez, 572 F.3d at 591. A plaintiff’s daily activities, inconsistencies in

26

testimony, or unexplained or inadequately explained failure to seek treatment or to follow a

27

prescribed course of treatment can constitute a reason to find that she lacks credibility.

28

Tommasetti, 533 F.3d at 1039. The ALJ found Plaintiff’s testimony not fully credible because
6

1

Plaintiff stated in her Function Report of October 15, 2012, that she cannot drive, but testified that

2

she does drive during the hearing and has a valid driver’s license. AR 22. The ALJ found that

3

Plaintiff reported that she does household chores, but also denied that she does any chores. Id.

4

Plaintiff also testified that she does not socialize, but does spend time with family on a daily

5

basis. Id. In addition, the ALJ points to Plaintiff’s report that she is unable to deal with crowds,

6

but shops with her husband every week. Id.

7

Nevertheless, the record also shows that Plaintiff’s Function Report was completed after

8

Plaintiff recently had back surgery (AR 226) and, in her hearing, Plaintiff testified that while she

9

does drive, she does so “very little[,] [m]aybe once or twice a month” (AR 35). While Plaintiff is

10

capable of shopping with her husband, she also testified that “[w]hen I go to the store and my

11

husband leaves me alone for a moment, I start getting the [sic] anxiety. I feel like I have to run

12

out of there.” AR 44. Regarding socializing, Plaintiff testified:

13

Q: You have any social activities like church or groups or friends, or family?

14

A: No, my life changed completely. I get scared when I am with a lot of people.

15

AR 36. While Plaintiff spends time daily with her family, she also indicates that she is unable to

16

be around crowds or socialize without impairment. Thus, considering the records as a whole, the

17

ALJ’s findings regarding inconsistencies in Plaintiff’s testimony are an inaccurate

18

characterization of the evidence.

19

The ALJ also found Plaintiff’s testimony to lack credibility because Plaintiff refused

20

recommended treatment for her constant neck pain. AR 22. However, Plaintiff testified that she

21

was taking Tramadol for the pain as well as using ice for relief, and told her primary doctor she

22

did not want to have surgery for her neck pain because the pain in her hand and back became

23

worse after surgery. AR 41. Thus, Plaintiff provided an uncontested explanation for not following

24

recommend treatment for her neck pain.

25

The ALJ is correct, however, that some of Plaintiff’s statements are not supported by the

26

medical record. For example, Dr. Rustom Damania noted that Plaintiff refused to engage in range

27

of motion testing of her back when he met with Plaintiff. AR 742. In addition, the ALJ found that

28

Plaintiff “reported mental impairments with significant symptoms, but the treatment records
7

1

document improvement with medication.” AR 22. This is supported in the mental health

2

treatment notes of October 13, 2012 and Plaintiff’s own testimony that the medication prescribed

3

by the psychiatrist for her depression helps her symptoms. AR 43, 773.

4

The Court notes, however, that an ALJ may not find a plaintiff not credible solely because

5

of a lack of corroborating evidence in the record. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir.

6

1991) (“an adjudicator may not reject a claimant’s subjective complaints based solely on the lack

7

of objective medical evidence to fully corroborate the alleged severity of pain”). Thus, the ALJ

8

failed to provide clear and convincing reasons that are supported by substantial evidence for

9

finding Plaintiff’s alleged pain and symptoms testimony not credible.

10
11

VI.

CONCLUSION
Based on the foregoing, the Court finds that the ALJ’s decision is not supported by

12

substantial evidence in the record or free of clear legal error. Accordingly, this Court GRANTS

13

Plaintiff’s appeal from the administrative decision of the Commissioner of Social Security and the

14

case is REMANDED to the Social Security Administration for further proceeding consistent with

15

this Order. The Clerk of the Court is DIRECTED to enter judgment in favor of Plaintiff Irma

16

Pacheco Banuelos and against Defendant Nancy A. Berryhill, Commissioner of Social Security.

17
18
19

IT IS SO ORDERED.
Dated:

August 17, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

20
21
22
23
24
25
26
27
28
8