Reynolds v. Commissioner of Social Security
Filing
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MEMORANDUM, OPINION and ORDER signed by Magistrate Judge Craig M. Kellison on 6/22/17, ORDERING that Plaintiff's 16 motion for summary judgment is DENIED. Defendant's 17 cross-motion for summary judgment is GRANTED. The Clerk is directed to enter judgment. CASE CLOSED (Kastilahn, A) Modified on 6/23/2017 (Kastilahn, A).
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ANGELA S. REYNOLDS,
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Plaintiff,
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No. 2:16-CV-0605-CMK
vs.
MEMORANDUM OPINION AND ORDER
COMMISSIONER OF SOCIAL
SECURITY,
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Defendant.
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Plaintiff, who is proceeding with retained counsel, brings this action under
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42 U.S.C. § 405(g) for judicial review of a final decision of the Commissioner of Social Security.
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Pursuant to the written consent of all parties, this case is before the undersigned as the presiding
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judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending
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before the court are plaintiff’s motion for summary judgment (Doc. 16) and defendant’s cross-
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motion for summary judgment (Doc. 17).
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I. PROCEDURAL HISTORY
Plaintiff applied for social security benefits on October 11, 2011. In the
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application, plaintiff claims that disability began on April 2, 2010. Plaintiff’s claim was initially
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denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which
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was held on February 4, 2014, before Administrative Law Judge (“ALJ”) Sharon L. Madsen. In
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a April 18, 2014, decision, the ALJ concluded that plaintiff is not disabled based on the
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following relevant findings:
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The claimant has the following severe impairment(s): cervical spondylosis
and asthma;
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The claimant does not have an impairment or combination of impairments
that meets or medically equals an impairment listed in the regulations;
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The claimant has the following residual functional capacity: the claimant
can lift and/or carry 20 pounds occasionally and 10 pounds frequently,
stand and/or walk for 6 to 8 hours in an 8-hour workday, and sit for 6 to 8
hours in an 8-hour workday; she can occasionally climb, crawl, and reach
overhead; she can frequently balance, stoop, kneel, and crouch, she cannot
climb ladders, ropes, or scaffolds; she must avoid concentrated exposure
to dusts, gases, and fumes; and
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Considering the claimant’s age, education, work experience, residual
functional capacity, and vocational expert testimony, the claimant is
capable of performing past relevant work as a hotel clerk, reservation
clerk, and medical records clerk.
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After the Appeals Council declined review on March 15, 2016, this appeal followed.
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II. STANDARD OF REVIEW
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The court reviews the Commissioner’s final decision to determine whether it is:
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(1) based on proper legal standards; and (2) supported by substantial evidence in the record as a
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whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is
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more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521
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(9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to
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support a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole,
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including both the evidence that supports and detracts from the Commissioner’s conclusion, must
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be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones
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v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner’s
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decision simply by isolating a specific quantum of supporting evidence. See Hammock v.
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Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative
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findings, or if there is conflicting evidence supporting a particular finding, the finding of the
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Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).
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Therefore, where the evidence is susceptible to more than one rational interpretation, one of
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which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v.
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Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal
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standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th
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Cir. 1988).
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III. DISCUSSION
Plaintiff argues that the ALJ improperly rejected her testimony as not credible.
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The Commissioner determines whether a disability applicant is credible, and the court defers to
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the Commissioner’s discretion if the Commissioner used the proper process and provided proper
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reasons. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996). An explicit credibility finding
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must be supported by specific, cogent reasons. See Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th
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Cir. 1990). General findings are insufficient. See Lester v. Chater, 81 F.3d 821, 834 (9th Cir.
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1995). Rather, the Commissioner must identify what testimony is not credible and what
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evidence undermines the testimony. See id. Moreover, unless there is affirmative evidence in
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the record of malingering, the Commissioner’s reasons for rejecting testimony as not credible
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must be “clear and convincing.” See id.; see also Carmickle v. Commissioner, 533 F.3d 1155,
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1160 (9th Cir. 2008) (citing Lingenfelter v Astrue, 504 F.3d 1028, 1936 (9th Cir. 2007), and
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Gregor v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006)).
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If there is objective medical evidence of an underlying impairment, the
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Commissioner may not discredit a claimant’s testimony as to the severity of symptoms merely
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because they are unsupported by objective medical evidence. See Bunnell v. Sullivan, 947 F.2d
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341, 347-48 (9th Cir. 1991) (en banc). As the Ninth Circuit explained in Smolen v. Chater:
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The claimant need not produce objective medical evidence of the
[symptom] itself, or the severity thereof. Nor must the claimant produce
objective medical evidence of the causal relationship between the
medically determinable impairment and the symptom. By requiring that
the medical impairment “could reasonably be expected to produce” pain or
another symptom, the Cotton test requires only that the causal relationship
be a reasonable inference, not a medically proven phenomenon.
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80 F.3d 1273, 1282 (9th Cir. 1996) (referring to the test established in
Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986)).
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The Commissioner may, however, consider the nature of the symptoms alleged,
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including aggravating factors, medication, treatment, and functional restrictions. See Bunnell,
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947 F.2d at 345-47. In weighing credibility, the Commissioner may also consider: (1) the
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claimant’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; (3) the claimant’s daily activities; (4) work records; and (5)
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physician and third-party testimony about the nature, severity, and effect of symptoms. See
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Smolen, 80 F.3d at 1284 (citations omitted). It is also appropriate to consider whether the
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claimant cooperated during physical examinations or provided conflicting statements concerning
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drug and/or alcohol use. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). If the
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claimant testifies as to symptoms greater than would normally be produced by a given
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impairment, the ALJ may disbelieve that testimony provided specific findings are made. See
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Carmickle, 533 F.3d at 1161 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)).
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Regarding reliance on a claimant’s daily activities to find testimony of disabling
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pain not credible, the Social Security Act does not require that disability claimants be utterly
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incapacitated. See Fair v. Bowen, 885 F.2d 597, 602 (9th Cir. 1989). The Ninth Circuit has
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repeatedly held that the
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does not . . .[necessarily] detract from her credibility as to her overall disability.” See Orn v.
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Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (quoting Vertigan v. Heller, 260 F.3d 1044, 1050 (9th
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Cir. 2001)); see also Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir. 1986) (observing that a
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claim of pain-induced disability is not necessarily gainsaid by a capacity to engage in periodic
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restricted travel); Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (concluding that the
“. . . mere fact that a plaintiff has carried out certain daily activities . . .
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claimant was entitled to benefits based on constant leg and back pain despite the claimant’s
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ability to cook meals and wash dishes); Fair, 885 F.2d at 603 (observing that “many home
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activities are not easily transferable to what may be the more grueling environment of the
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workplace, where it might be impossible to periodically rest or take medication”). Daily
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activities must be such that they show that the claimant is “. . .able to spend a substantial part of
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his day engaged in pursuits involving the performance of physical functions that are transferable
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to a work setting.” Fair, 885 F.2d at 603. The ALJ must make specific findings in this regard
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before relying on daily activities to find a claimant’s pain testimony not credible. See Burch v.
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Barnhart, 400 F.3d 676, 681 (9th Cir. 2005).
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As to plaintiff’s credibility, the ALJ stated:
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The claimant completed an Adult Function Report (Exhibit 6E). She
stated she lived alone in an apartment. Her daily activities included
making meals, showering and dressing, shopping, and reading. She had no
problems attending to her personal care. She prepared meals, did
housework daily, and shopped in stores. She could pay bills, count change
and use a bank account. She did crossword puzzles daily. She socialized
with others by spending time with her daughter and her family. She could
not bowl or go to the movie theater. She could walk 1/4 mile. She could
pay attention 75% of the time. She could not lift, squat, bend, stand,
reach, walk sit, or kneel for more than 5-10 minutes. She had difficulty
concentrating and completing tasks.
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In November 2012, the claimant completed a second Adult Function
Report (Exhibit 10E). She stated she now lived with her boyfriend’s
mother. She could not blow dry her hair. She continued to prepare meals,
do house chores such as cleaning the bathroom, sweeping, and doing
laundry. She continued to shop and socialize with others. She attended
church once a week. She read and watched television daily. She could lift
up to 15 pounds She could sit, stand, or walk for 15 minutes at a time. She
had no problems paying attention.
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The claimant testified she lived with her boyfriend in an apartment. Her
boyfriend was a doctor. She testified she did not need help with
showering or dressing. She did light cleaning, such as dusting with a
swiffer. She did not drive, but got rides from her boyfriend or friends.
She cooked, but did not lift heavy things. She shopped, attended church,
and went to dinner at other people’s homes. She used ice and heating pads
for her back. She no longer took narcotics. Her blood pressure seemed to
be okay. She used to smoke, but quit. She could lift up to 10 pounds, sit
for 10 minutes, and stand for up to 15 minutes. She could walk for one
block. She lived on a second floor apartment. She alleges depression and
stated she did not like to socialize with people. She lied down for 2-3
hours a day.
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The claimant was not fully credible. Her testimony that she did not like to
socialize with people was inconsistent with living with her boyfriend,
attending dinners with her boyfriend’s relatives, and spending time with
her friends (Exhibit 9E). Her testimony that she could only sit for 10
minutes was not consistent with her presentation at [the] hearing, where
she sat in apparent comfort throughout the 40+ minute long hearing. Her
testimony that she could only walk for one block was not consistent with
her statement in her function report that she could walk for 1/4 mile
(Exhibit 6E).
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While plaintiff argues that a number of the reasons cited by the ALJ were not indicative of a lack
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of credibility, plaintiff does not address one inconsistency in particular noted by the ALJ
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regarding her ability to walk. As the ALJ observed, at one point plaintiff stated that she could
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walk a quarter mile. At the hearing, however, plaintiff testified that she could only walk for one
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block. This inconsistency – which plaintiff does not address in her brief – supports the ALJ’s
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credibility finding.
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IV. CONCLUSION
Based on the foregoing, the court concludes that the Commissioner’s final
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decision is based on substantial evidence and proper legal analysis. Accordingly, IT IS HEREBY
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ORDERED that:
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1.
Plaintiff’s motion for summary judgment (Doc. 16) is denied;
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2.
Defendant’s cross-motion for summary judgment (Doc. 17) is granted; and
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3.
The Clerk of the Court is directed to enter judgment and close this file.
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DATED: June 22, 2017
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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