Evans v. Commissioner of Social Security

Filing 17

MEMORANDUM OPINION and ORDER signed by Magistrate Judge Dennis M. Cota on 12/19/18 ORDERING that 13 Plaintiffs Motion for summary judgment is denied and Defendants 14 Motion for Summary Judgment is granted. The Commissioner' s final decision is affirmed and the Clerk of the Court is directed to enter judgment and close this file. (Kaminski, H)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CASSANDRA EVANS,

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No. 2:17-CV-0295-DMC

Plaintiff,
v.

MEMORANDUM OPINION AND ORDER

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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Plaintiff, who is proceeding with retained counsel, brings this action for judicial

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review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g).

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Pursuant to the written consent of all parties (Docs. 7 and 8), this case is before the undersigned

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as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c).

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Pending before the court are the parties’ briefs on the merits (Docs. 13 and 14).

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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 support

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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).
For the reasons discussed below, the Commissioner’s final decision is affirmed.

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I. THE DISABILITY EVALUATION PROCESS

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To achieve uniformity of decisions, the Commissioner employs a five-step

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sequential evaluation process to determine whether a claimant is disabled. See 20 C.F.R. §§

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404.1520 (a)-(f) and 416.920(a)-(f). The sequential evaluation proceeds as follows:

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Step 1

Determination whether the claimant is engaged in
substantial gainful activity; if so, the claimant is presumed
not disabled and the claim is denied;

Step 2

If the claimant is not engaged in substantial gainful activity,
determination whether the claimant has a severe
impairment; if not, the claimant is presumed not disabled
and the claim is denied;

Step 3

If the claimant has one or more severe impairments,
determination whether any such severe impairment meets
or medically equals an impairment listed in the regulations;
if the claimant has such an impairment, the claimant is
presumed disabled and the claim is granted;

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Step 4

If the claimant’s impairment is not listed in the regulations,
determination whether the impairment prevents the
claimant from performing past work in light of the
claimant’s residual functional capacity; if not, the claimant
is presumed not disabled and the claim is denied;

Step 5

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If the impairment prevents the claimant from performing
past work, determination whether, in light of the claimant’s
residual functional capacity, the claimant can engage in
other types of substantial gainful work that exist in the
national economy; if so, the claimant is not disabled and
the claim is denied.

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See 20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f).

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To qualify for benefits, the claimant must establish the inability to engage in

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

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has lasted, or can be expected to last, a continuous period of not less than 12 months. See 42

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U.S.C. § 1382c(a)(3)(A). The claimant must provide evidence of a physical or mental

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impairment of such severity the claimant is unable to engage in previous work and cannot,

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considering the claimant’s age, education, and work experience, engage in any other kind of

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substantial gainful work which exists in the national economy. See Quang Van Han v. Bower,

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882 F.2d 1453, 1456 (9th Cir. 1989). The claimant has the initial burden of proving the existence

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of a disability. See Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).

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The claimant establishes a prima facie case by showing that a physical or mental

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impairment prevents the claimant from engaging in previous work. See Gallant v. Heckler, 753

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F.2d 1450, 1452 (9th Cir. 1984); 20 C.F.R. §§ 404.1520(f) and 416.920(f). If the claimant

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establishes a prima facie case, the burden then shifts to the Commissioner to show the claimant

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can perform other work existing in the national economy. See Burkhart v. Bowen, 856 F.2d

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1335, 1340 (9th Cir. 1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); Hammock

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v. Bowen, 867 F.2d 1209, 1212-1213 (9th Cir. 1989).

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II. THE COMMISSIONER’S FINDINGS

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Plaintiff applied for social security benefits on February 7, 2013. See CAR 21.1

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At the hearing, plaintiff claims that disability began on January 31, 2009. See id. In her brief,

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plaintiff claims she stopped working due to “depression, anxiety, migraines, heart, eye and leg

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problems, anxiety, migraines [sic], anger issues, paranoia, learning disability, bipolar/manic,

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depression symptoms, and acid reflux.” Plaintiff’s claim was initially denied. Following denial

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of reconsideration, plaintiff requested an administrative hearing, which was held on November

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24, 2014, before Administrative Law Judge (ALJ) Trevor Skarda. In a July 29, 2015, decision,

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the ALJ concluded that plaintiff is not disabled based on the following relevant findings:

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The claimant has the following severe impairment(s):
hypertension, obesity, asthma, osteoarthritis of the knees, bilateral
lower extremity edema, adjustment disorder with depressed mood,
and borderline intellectual functioning;

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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;

3.

The claimant has the following residual functional capacity: light
work except the claimant may only occasionally climb ramps or
stairs, never climb ropes, ladders, or scaffolds, only occasionally
balance, stoop, kneel, crouch, and crawl, must avoid moderate
exposure to pulmonary irritants such as fumes, odors, dusts, gases,
and poor ventilated areas, must avoid moderate exposure to
hazards, defined as operational control of dangerous moving
machinery and unprotected heights, the claimant is limited to
simple routine and repetitive tasks, work that is low stress,
meaning no more than occasional decision-making or work setting
changes;

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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 her past relevant work as a
house cleaner as that work is generally performed, and there are
jobs that exist in significant numbers in the national economy that
the claimant can also perform.

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See id. at 23-36.

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After the Appeals Council declined review on December 13, 2016, this appeal followed.

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Citations are the to the Certified Administrative Record (CAR) lodged on January
17, 2018 (Doc. 10).
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III. DISCUSSION

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In her motion for summary judgment, plaintiff argues the ALJ failed to articulate
sufficient reasons for rejecting her statements and testimony as not credible.
The ALJ’s Analysis

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1.

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At Step 4, the ALJ evaluated the credibility of plaintiff’s statements and testimony

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to determine her residual functional capacity. See CAR 27-28, 33-34. Regarding plaintiff’s

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credibility, the ALJ stated:

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The claimant is a 47-year-old female with a high school education
(Hearing Testimony). The claimant alleged an inability to work due to
depression, anxiety, migraines, heart, eyes, leg problems, anger issues,
paranoia, learning disability, bipolar/manic depression symptoms, and acid
reflux (Exhibit 3E/2). The claimant alleges high blood pressure and
morbid obesity (Exhibit 7E/1). The claimant alleges that she attended
special education classes in high school, but also stated that she has
completed specialized training in culinary arts (Exhibit 3E/3). The
claimant alleges that her niece prepares all her meals and that the claimant
does not cook due to her illness (Exhibit 6E/3). The claimant alleges that
when she stands, she sometimes falls to her knees without knowing the
reason (Exhibit 6E/3). The claimant alleges that the conditions affect her
ability to lift, squat, bend, stand, walk, kneel, stair-climb, see, complete
tasks, concentrate, understand, follow instructions, and get along with
others (Exhibit 6R/6). In her most recent Disability Report, the claimant
alleges possible strokes or seizures, and possible diabetes (Exhibit 13E/2).
At the hearing, the claimant reported periods of “blacking out” and losing
consciousness for thirty minutes at one time and using a cane to ambulate
(Hearing Testimony).

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CAR 27-28.

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After discussing the objective medical evidence and opinion evidence, the ALJ evaluated the

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credibility of plaintiff’s statements and testimony:

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The claimant has described activities of daily living that are not as limited
as one would expect given the claimant’s complaints of disabling
symptoms and limitations. The claimant has reported that she is able to
watch television (Exhibit 6E/1). The claimant reported that she spends her
days cleaning, washing, and doing yard work (Exhibits 11E/1/2). The
claimant is able to walk children to school (Exhibit 11E/2). The claimant
is able to go shopping in stores (Exhibit 4E/4). The claimant is able to
spend a lot of time with family (Exhibit 4F/2). The claimant has also
informed medical professionals that she cooks for herself (Exhibit 4F/2).
These activities of daily living are inconsistent with the claimant’s
allegations that she does not cook and does not complete any household
chores (Exhibit 6E/3). The claimant’s inconsistent statements suggest that
she had not been forthcoming about her functional abilities.

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The claimant has not generally received the type of medical treatment one
would expect for a person with the claimant’s alleged limitations, which
include the necessity to use a cane to walk and inability to complete any
household chores (Exhibit 6E/3 and Hearing Testimony). In fact, since
the alleged onset date, the claimant’s medical treatment has been limited.
Rather, at the hearing the claimant testified that her medications alleviated
pain symptoms (Hearing Testimony). In regards to the claimant’s mental
impairments, the record does not reflect any actual treatment, psychotropic
medications, or therapy.

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A review of the claimant’s work history shows that the claimant worked
only sporadically prior to the her [sic] alleged disability onset date, which
raises a question as to whether the claimant’s continuing unemployment is
actually due to medical impairments (Exhibit 5D/2). Instead, the record
reflects that the claimant was incarcerated for two years on drug selling
charges (Exhibit 2F/4).
Finally, the claimant’s demeanor while testifying at the hearing was
generally unpersuasive. It is emphasized that this observation is only one
among many being relied on in assessing credibility and is not
determinative. The undersigned concludes that the claimant’s allegations
of debilitating pain and disabling functional limitations are not fully
credible. Neither the objective medical evidence nor the subjective
allegations, to the extent they are reasonably credible, warrant any more
restrictive functional limitations than those the undersigned has found in
this case.

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CAR 33-34.
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Plaintiff’s Contentions

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2.

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Plaintiff argues:

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Here, after reciting the relevant ruling and regulation (footnote
omitted), the ALJ states woefully insufficient reasons to reject the
testimony. Specifically, the ALJ states:

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After careful consideration of the evidence, the undersigned finds
that the claimant's medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however,
the claimant's statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely credible for the
reasons explained in this decision.

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AR 33. The standard as articulated in Bunnell v. Sullivan, 947 F.2d 341,
345-346 (9th Cir. 1991) is that an ALJ disclaiming a claimant's allegations
of severity “must specifically make findings which support this
conclusion,” and that “[t]hese findings, properly supported by the record,
must be sufficiently specific to allow a reviewing court to conclude the
adjudicator rejected the claimant's testimony on permissible grounds.”
Bunnell v. Sullivan, 947 F.2d at 345-346. The Bunnell holding makes clear
that “findings,” “conclusion,” and “record” are distinct concepts.
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First, the ALJ simply sets forth the oft rejected boilerplate
language numerous courts have rejected as boilerplate. See Bjornson v.
Astrue, 671 F.3d 640, 645 (7th Cir. 2012) (boilerplate language fails to
inform in a meaningful, reviewable way of the specific evidence the ALJ
considered in determining that claimant's complaints were not credible
where the Commissioner rejects the testimony without linking the
conclusory statements contained therein to evidence in the record). The
statement by an ALJ of fact that a witness's testimony is “not credible”
yields no clue to what weight the trier of fact gave the testimony. Parker v.
Astrue, 597 F.3d 920, 922 (7th Cir. 2010); see also Robbins v. Social
Security Administration, 466 F.3d 880, 883-85 and n. 2 (9th Cir. 2006)
(credibility boilerplate); Punzio v. Astrue, 630 F.3d 704, 709 (7th Cir.
2011); Martinez v. Astrue, 630 F.3d 693, 696-97 (7th Cir. 2011); Spiva v.
Astrue, 628 F.3d 346, 348 (7th Cir. 2010). Consequently, the conclusory
statement of the ALJ in this matter is wholly insufficient.
Second, it appears that the ALJ’s sole rationale simply rejects
Evans’s testimony based on a belief that the testimony is not credible
because it lacks support in the objective medical evidence. AR 28-32.
Such rationale is legally insufficient and the statement of the ALJ
contravenes established case law and regulations. That is because a
rejection of a claimant’s testimony based on a lack of objective evidence is
always legally insufficient. The Bunnell standard requires consideration of
“excess pain” not simply the degree of pain limitation established by the
objective medical evidence. Bunnell v. Sullivan, 947 F.2d at 345.
Bunnell discarded the proof of the degree of impairment by
objective medical evidence articulated in Bates v. Sullivan, 894 F.2d 1059,
1064 (9th Cir. 1990) (Wallace, C.J., and Hawthorne, J., concurring). The
incantation of a lack of objective evidence is therefore always legally
insufficient. Bunnell, 947 F.2d at 343 (“we reject this standard because it
is inconsistent with the relevant statutory language, the legislative history,
the Secretary's regulations, [and] the Secretary's interpretation of the
regulations....”). Indeed, the regulations specifically prohibit rejecting
subjective pain testimony solely on the basis of objective medical
evidence. 20 C.F.R. § 404.1529(c) (2) (we will not reject your statements
about the intensity and persistence of your pain or other symptoms or
about the effect your symptoms have on your ability to work solely
because the available objective medical evidence does not substantiate
your statements). Thus, the assertion of the ALJ that Cassandra Evans’s
testimony is not credible because it is inconsistent with the objective
medical evidence is always legally insufficient to find Evans not credible.
Once Evans produced medical evidence of an underlying medical
impairment, the ALJ could not discredit the testimony as to the severity of
symptoms merely because they are unsupported by objective medical
evidence. Reddick, 157 F.3d at 722. Here the ALJ conceded that the
objective evidence could reasonably be expected to cause Evans’
symptoms. AR 33 (“After careful consideration of the evidence, the
undersigned finds that the claimant's medically determinable impairments
could reasonably be expected to cause the alleged symptoms;”). In so
finding the ALJ has determined that Evans has satisfied the first step of
the credibility analysis in which the "ALJ must determine whether the
claimant has presented objective medical evidence of an underlying
impairment ‘which could reasonably be expected to produce the pain or
other symptoms alleged.’ Lingenfelter v. Astrue, 504 F.3d at 1035-36.

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Consequently, the ALJ answers the wrong question in articulating
that the degree of limitation established by the objective medical evidence
does not support Evans’s descriptions; rather, once the presence of a
severe medical impairment likely to produce subjective limitations is
established (as in this case), the true question is whether there is any clear
and convincing reasons for rejecting Cassandra Evans’s testimony. Simply
put, the ALJ must not show he disbelieves Evans’s story; it is that the ALJ
must find Evans not credible as a witness. See, e.g., United States ex rel.
Exarchou v. Murff, 265 F.2d 504, 507 (2d Cir. 1959) (agency credibility
decision reversible where based simply on mistaken view of the story's
plausibility and not of a finding that the witness was not credible) and
Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) (“To find
the claimant not credible the ALJ must rely either on reasons unrelated to
the subjective testimony (e.g., reputation for dishonesty), on conflicts
between her testimony and her own conduct, or on internal contradictions
in that testimony.”). In this matter the ALJ failed to articulate any rationale
sufficient to demonstrate Cassandra Evans was anything other than
credible.
The ALJ also rejects Evans’s testimony as not credible based on
Evans’s performance of sporadic daily activities. AR 33. Evans’s
descriptions of her limitations demonstrate that she is incapable of
maintaining substantial gainful work activity as a result of her severe
impairments. AR 42-62. Substantial gainful work activity is the ability to
sustain work activity “8 hours a day, for 5 days a week, or an equivalent
work schedule.” Social Security Ruling 96-8p; see also Lewis v. Apfel, 236
F.3d 503, 514 (9th Cir. 2001); Reddick v. Chater, 157 F.3d 715, 724 (9th
Cir. 1998). Substantial gainful work activity is certainly not defined as
requiring an individual’s disability and limitations render him comatose or
totally disabled. See Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987)
(disability does not mean that a claimant must vegetate in a dark room
excluded from all forms of human and social activity). Nothing in Evans’s
testimony provides any indication that she is capable of performing
anything other than a few basic daily activities and certainly not what is
required of substantial gainful work activity as defined above.
Even the fact that Evans has some ability some of the time to
perform something is not reason enough to find him not credible. See
Lester v. Chater, 81 F.3d at 833 (symptom-free periods, and even the
sporadic ability to work, are not inconsistent with disability because the
ALJ must evaluate the claimant's ability to work on a sustained basis).
Evidence that a claimant can participate in basic human function “is not
determinative of disability.” Magallanes v. Bowen, 881 F.2d at 756. By
itself the fact that an individual may perform some activities does not
affect credibility; rather it is an individual's daily activities and the relation
of those activities to gainful work which offer insight to an individual's
credibility. Reddick v. Chater, 157 F.3d at 722 (“Only if the level of
activity were inconsistent with Claimant's claimed limitations would these
activities have any bearing on Claimant's credibility”). Evans’s
descriptions of her activity level is far short of what is needed to
demonstrate the capacity to perform work activity on a sustained basis.
Evans has to take breaks when she does chores around the house. AR 278.
Evans can only walk for 30 minutes and pay attention for 20 minutes. AR
281. Despite these limitations when doing daily activities, the ALJ does
not explain how Evans translates her activities into a full day of work.
The Ninth Circuit has “repeatedly warned that ALJs must be
especially cautious in concluding that daily activities are inconsistent with
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testimony about pain, because impairments that would unquestionably
preclude work and all the pressures of a workplace environment will often
be consistent with doing more than merely resting in bed all day.”
Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014). As the Ninth
Circuit has further stated, “the mere fact that a plaintiff has carried on
certain daily activities, such as grocery shopping, driving a car, or limited
walking for exercise, does not in any way detract from her credibility as to
her overall disability.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir.
2001).
In this case, the ALJ did what the Ninth Circuit cautioned against:
referring to Evans’s daily activities and apparently concluding that they
were partially inconsistent with Evans’s claimed disability. AR 33. The
ALJ’s decision identifies Plaintiff’s ability to do sporadic and limited
household chores and taking care of her personal needs. AR 33. However,
the ALJ did not describe how those activities are inconsistent with specific
symptom claims made by Plaintiff.
Nor does the decision explain how Plaintiff’s activities permit her
to obtain and maintain a job. Citing plaintiff’s ability to perform basic
activities without explaining how these activities are inconsistent with
plaintiff’s complaints is legally insufficient. See Burrell v. Colvin, 775
F.3d 1133, 1138 (9th Cir. 2014) (“the ALJ did not elaborate on which
daily activities conflicted with which part of Claimant’s testimony”);
Lester, 81 F.3d at 834. As a result of this lack of specificity, the decision’s
reference to Plaintiff’s daily activities is an inadequate basis for the ALJ’s
credibility determination. See Brown-Hunter v. Colvin, 806
F.3d 487, 493-494 (9th Cir. 2015).
The ALJ also cites to Evans work history as a factor in the
analysis. The Commissioner does not consider an individual’s work
history as part of the analysis. Social Security Ruling 16-3p.
The ALJ also rejects Evans’s testimony because the ALJ believes
Evans has only had care that was conservative in nature. AR 33. The ALJ
is wrong. The ALJ does not cite to any medical evidence that
demonstrates that Evans has in fact undergone a conservative course of
treatment. The ALJ does not point to the record to demonstrate that there
was anything more the doctors wanted Evans to do. The ALJ cannot fault
Evans for failing to pursue non-conservative treatment options if none
exist. See, e.g., Lapeirre-Gutt v. Astrue, 382 Fed. Appx. 662, 664 (9th Cir.
2010) (“A claimant cannot be discredited for failing to pursue nonconservative treatment options where none exist.”).
In enacting the Social Security Disability Reform Act, Congress
did not intend to render the claimant's pain testimony irrelevant. "Instead,
Congress clearly meant that so long as the pain is associated with a
clinically demonstrated impairment, credible pain testimony should
contribute to a determination of disability." Cotton v. Bowen, 799 F.2d
1403, 1407 (9th Cir. 1986) citing Howard v. Heckler, 782 F.2d 1484, 1488
n. 4 (9th Cir. 1986) (emphasis added). Unfortunately, the ALJ did not
consider Evans's credible testimony. See, e.g., United States ex rel.
Exarchou v. Murff, 265 F.2d 504, 507 (2d Cir. 1959) (agency credibility
decision reversible where based simply on mistaken view of the story's
plausibility and not of a finding that the witness was not credible). The
ALJ did not identify clear and convincing reasons supporting his disbelief.
Rather, the ALJ articulated generalities. Moisa v. Barnhart, 367 F.3d 882,
885 (9th Cir. 2004) (Absent evidence of malingering, the ALJ must set
forth adequate grounds such as reputation for dishonesty, conflicts
between the claimant's testimony and her conduct, or internal
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contradictions in the testimony, which the ALJ did not do.) As a result, the
ALJ’s decision cannot withstand scrutiny (footnote omitted).

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Applicable Legal Standards

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The Commissioner determines whether a disability applicant is credible, and the

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court defers to the Commissioner’s discretion if the Commissioner used the proper process and

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provided proper reasons. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996). An explicit

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credibility finding must be supported by specific, cogent reasons. See Rashad v. Sullivan, 903

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F.2d 1229, 1231 (9th Cir. 1990). General findings are insufficient. See Lester v. Chater, 81 F.3d

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821, 834 (9th Cir. 1995). Rather, the Commissioner must identify what testimony is not credible

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and what evidence undermines the testimony. See id. Moreover, unless there is affirmative

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evidence in the record of malingering, the Commissioner’s reasons for rejecting testimony as not

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credible must be “clear and convincing.” See id.; see also Carmickle v. Commissioner, 533 F.3d

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1155, 1160 (9th Cir. 2008) (citing Lingenfelter v Astrue, 504 F.3d 1028, 1936 (9th Cir. 2007),

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and Gregor v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006)).
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)).

14

Regarding reliance on a claimant’s daily activities to find testimony of disabling

15

pain not credible, the Social Security Act does not require that disability claimants be utterly

16

incapacitated. See Fair v. Bowen, 885 F.2d 597, 602 (9th Cir. 1989). The Ninth Circuit has

17

repeatedly held that the “. . . mere fact that a plaintiff has carried out certain daily activities . . .

18

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

21

claim of pain-induced disability is not necessarily gainsaid by a capacity to engage in periodic

22

restricted travel); Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (concluding that the

23

claimant was entitled to benefits based on constant leg and back pain despite the claimant’s

24

ability to cook meals and wash dishes); Fair, 885 F.2d at 603 (observing that “many home

25

activities are not easily transferable to what may be the more grueling environment of the

26

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
11

1

to a work setting.” Fair, 885 F.2d at 603. The ALJ must make specific findings in this regard

2

before relying on daily activities to find a claimant’s pain testimony not credible. See Burch v.

3

Barnhart, 400 F.3d 676, 681 (9th Cir. 2005).

4

4.

Disposition

5

The ALJ in this case found plaintiff’s statements and testimony not credible

6

primarily due to inconsistencies. While, the ALJ stated plaintiff has described activities of daily

7

living “that are not as limited as one would expect given the claimant’s complaints of disabling

8

symptoms and limitations,” the ALJ went on to note plaintiff made several inconsistent

9

statements regarding her daily activities. For example, plaintiff at one point stated she does not

10

cook or do any household chores but told medical professionals she cooks for herself and reported

11

she spends her days cleaning, washing, and doing yard work. The ALJ does not err by citing

12

inconsistent statements in making an adverse credibility finding. See Smolen, 80 F.3d at 1284.

13

As the ALJ noted, plaintiff’s inconsistent statements provide a valid legal basis supported by the

14

record to reject all of plaintiff’s statements and testimony.

15
16
17

IV. CONCLUSION
Based on the foregoing, the court concludes that the Commissioner’s final decision

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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. 13) is denied;

21

2.

Defendant’s motion for summary judgment (Doc. 14) is granted;

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3.

The Commissioner’s final decision is affirmed; and

23

4.

The Clerk of the Court is directed to enter judgment and close this file.

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Dated: December 19, 2018
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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