Holcomb v. Commissioner of Social Security
Filing
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ORDER signed by District Judge Kimberly J. Mueller on 9/30/2019 ADOPTING 29 Findings and Recommendations, consistent with this order, DENYING 18 Motion for Summary Judgment, and GRANTING 24 Cross-Motion for Summary Judgment. The Commissioner's final decision is AFFIRMED and judgment is entered for the Commissioner. CASE CLOSED. (Donati, J)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JERALD E. HOLCOMB,
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Plaintiff,
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No. 2:17-cv-02268-KJM-CKD
v.
ORDER
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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On January 11, 2019, the magistrate judge filed findings and recommendations,
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ECF No. 29, which were served on the parties and which contained notice that any objections to
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the findings and recommendations were to be filed within fourteen (14) days. On January 17,
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2019, plaintiff filed objections to the findings and recommendations, ECF No. 30.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304,
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this court has conducted a de novo review of this case. Having reviewed the file and considered
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plaintiff’s objections, the court finds the magistrate judge’s findings and recommendations are
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supported by the record and by the proper analysis. The court adopts the magistrate judge’s
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ultimate conclusions, with the following clarifications.
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I.
ALJ’S CREDIBILITY DETERMINATION
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Plaintiff objects to the magistrate judge’s finding that the ALJ properly rejected
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plaintiff’s testimony, arguing the magistrate judge impermissibly relied on a post hoc rationale.
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Objs. at 4–5. The magistrate judge finds that, in rejecting plaintiff’s testimony, the ALJ relied in
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part on her observations of plaintiff at the hearing. Findings at 15. Plaintiff correctly points out
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that the ALJ did not discuss her observations of plaintiff in the section of her decision explaining
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why she rejected plaintiff’s testimony. Objs. at 5–6; ECF No. 14-2 (Admin. Tr.), at 23 (“[F]or the
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reasons discussed below, I find that the record does not support the imposition of work
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restrictions . . . .”) (emphasis added). Accordingly, the court does not adopt this portion of the
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magistrate judge’s findings and recommendations. See Connett v. Barnhart, 340 F.3d 871 (9th
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Cir. 2003) (“It was error for the district court to affirm the ALJ’s credibility decision based on
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evidence that the ALJ did not discuss.”).
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However, this does not affect the magistrate judge’s ultimate conclusion that the
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ALJ did not err in rejecting plaintiff’s testimony, because the ALJ relied on both the medical
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record and plaintiff’s self-reported activities. Admin. Tr. at 28. Plaintiff’s reliance on Trevizo v.
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Berryhill, 871 F.3d 664 (9th Cir. 2017) to argue the ALJ erred by not providing a more detailed
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analysis of each of plaintiff’s self-reported activities is inapposite. See Objs. at 9. In Trevizo, the
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ALJ improperly relied on plaintiff’s self-reported “childcare activities” as a reason for rejecting
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plaintiff’s testimony, without any further detail as to what constituted “childcare activities.” Id. at
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682. Here, the ALJ listed more specific activities, such as cooking, shopping, spending time with
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friends, and yard work. See Findings at 14 (citing Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir.
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2005) (ALJ properly cited claimant’s ability to cook, clean, and shop in rejecting claimant’s
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testimony); Morgan v. Apfel, 169 F.3d 595, 600 (9th Cir.1999) (claimant’s ability to fix meals, do
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laundry, work in the yard, and occasionally care for his friend’s child was evidence of claimant's
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ability to work that undermined claimant’s credibility). Plaintiff’s objection to this aspect of the
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magistrate judge’s recommendation regarding the ALJ’s credibility determination.
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II.
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MEDICAL OPINION OF DR. FORMAN
Plaintiff objects to the magistrate judge’s finding that the ALJ did not err in not
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discussing Dr. Forman’s finding that plaintiff is able to work “from 4 to 8 hours a day.” Objs. at
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25. The doctor’s statement is ambiguous. Plaintiff interprets it to mean that some days, plaintiff
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can work 8 hours, but other days, he can only work 4 hours, and therefore he is incapable of
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working full time. See id. The Commissioner interprets the statement as “a range of capabilities
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[including] ability to work an eight-hour day.” Opp’n, ECF No. 24, at 11. As the magistrate
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judge points out, “it is the function of the ALJ to resolve any ambiguities.” Findings at 3 (citing
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Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001)).
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The magistrate judge correctly finds the ALJ committed no error in weighing the
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2013 medical opinion of examining physician Jenny Forman, Ph.D, because the ALJ explicitly
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considered the opinion in contention in its entirety. Findings at 8. The court agrees that the
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“moderate mental and social functioning limitations” RFC is consistent with Dr. Forman’s
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specific assertion that plaintiff could work 4 to 8 hours per day, and the RFC need not precisely
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reflect a physician’s specific assessments. Id at 8, 10 (citing Turner, 613 F.3d at 1222–23). As
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the Commissioner argues, “residual functional capacity is the most, not the least, an individual is
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capable of doing despite their impairments.” ECF No. 24 at 11–12 (citing 20 C.F.R.
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§ 416.945(a)(1) (“Your residual functional capacity is the most you can still do despite your
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limitations”). Therefore, the ALJ’s finding that plaintiff is capable of “light work” is consistent
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with Dr. Forman’s recommendation, if one interprets the statement “4 to 8 hours” as a “range of
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capabilities,” which the ALJ was entitled to do. See Admin. Tr. at 22.
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The magistrate judge’s supplemental finding that “the ALJ was not required to
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discuss Dr. Forman’s specific finding that plaintiff is able to work from 4 to 8 hours a day
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because it is ambiguous, unsupported, and conclusory,” Findings at 9, is unnecessary, given the
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discussion above. Accordingly, that finding is not adopted.
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III.
CONCLUSIONS
The court ADOPTS the findings and recommendations, ECF No. 29, consistent with this
order. Accordingly, IT IS HEREBY ORDERED that:
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1. Plaintiff’s motion for summary judgment (ECF No. 18) is DENIED.
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2. The Commissioner’s cross-motion for summary judgment (ECF No. 24) is
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GRANTED.
3. The final decision of the Commissioner is AFFIRMED, and judgment is entered for
the Commissioner.
4. The Clerk of Court shall close this case.
DATED: September 30, 2019.
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UNITED STATES DISTRICT JUDGE
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