Williams v. Commissioner of Social Security

Filing 32

ORDER denying Plaintiff's 24 Motion for Summary Judgment; granting Defendant's 29 Cross-Motion for Summary Judgment. Court orders that Judgment be entered affirming the decision of the Commissioner and dismissing this action with prejudice. Signed by Judge Cynthia Bashant on 6/15/2018. (jah)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOSEPH WILLIAMS,

Case No. 17-cv-1223-BAS (RNB)
Plaintiff,

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v.

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ORDER:

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

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(1) DENYING PLAINTIFF’S
MOTION FOR SUMMARY
JUDGMENT (ECF No. 24); AND

Defendant.

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(2) GRANTING DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT (ECF No. 29)

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On June 16, 2017, Plaintiff Joseph Williams filed a Complaint pursuant to 42 U.S.C.

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§ 405(g) seeking judicial review of a decision by the Acting Commissioner of Social

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Security denying his application for a period of disability and disability insurance benefits.

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(ECF No. 1.)

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Now pending before the Court and ready for decision are the parties’ cross-motions

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for summary judgment. The Court finds these motions suitable for determination on the

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papers submitted and without oral argument. 1 See Fed. R. Civ. P. 78(b); Civ. L.R.

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7.1(d)(1). For the reasons set forth herein, Plaintiff’s motion for summary judgment is

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DENIED, and the Commissioner’s cross-motion for summary judgment is GRANTED.

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PROCEDURAL BACKGROUND

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On September 8, 2014, Plaintiff protectively filed an application for a period of

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disability and disability insurance benefits under Title II of the Social Security Act, alleging

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disability since January 1, 2012. (Certified Administrative Record (“AR”) 144-50, ECF

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No. 22.) After his applications were denied initially and upon reconsideration (AR 88-92,

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97-99), Plaintiff requested an administrative hearing before an administrative law judge

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(“ALJ”). (AR 100-03.) An administrative hearing was held on July 11, 2016. Plaintiff

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appeared at the hearing with counsel, and testimony was taken from him and a vocational

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expert (“VE”). (AR 41-60.)

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As reflected in his August 29, 2016, hearing decision, the ALJ found that Plaintiff

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had not been under a disability, as defined in the Social Security Act, from his alleged onset

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date through March 31, 2016, the date last insured. (AR 13-36.) The ALJ’s decision

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became the final decision of the Commissioner on November 22, 2016, when the Appeals

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Council denied Plaintiff’s request for review. (AR 8-12.) This timely civil action followed.

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SUMMARY OF THE ALJ’S FINDINGS

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In rendering his decision, the ALJ followed the Commissioner’s five-step sequential

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evaluation process. See 20 C.F.R. §§ 404.1520, 416.920. At step one, the ALJ found that

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Plaintiff had not engaged in substantial gainful activity during the period from January 1,

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2012, his alleged onset date, through March 31, 2016, his date last insured. (AR 18.)

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At step two, the ALJ found that, through the date last insured, Plaintiff had the

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following severe impairments: obesity, degenerative disc disease, osteoarthritis of the

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The Court withdraws its reference to the magistrate judge (ECF No. 5).
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bilateral knees, migraine headaches, hypertension, and neuropathy in the left foot.

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(AR 18.)

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At step three, the ALJ found that Plaintiff did not have an impairment or combination

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of impairments that met or medically equaled one of the impairments listed in the

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Commissioner’s Listing of Impairments. (AR 28.)

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Next, the ALJ determined that, through the date last insured, Plaintiff had the
following residual functional capacity (“RFC”):

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[Plaintiff can] perform light work as defined in 20 C.F.R. § 404.1567(b),
except specifically, [Plaintiff] can lift and/or carry 20 pounds occasionally and
10 pounds frequently. He can sit, stand, and walk for six hours each in an
eight-hour workday. He can push and/or pull as much as he can lift and/or
carry. He can occasionally climb ramps or stairs; he can occasionally climb
ladders, ropes, or scaffolds. He can occasionally stoop, kneel, crouch, and
crawl.

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(AR 29.) For purposes of his step four determination, the ALJ adduced and accepted the

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VE’s testimony that a hypothetical person with Plaintiff’s vocational profile would be able

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to perform the requirements of Plaintiff’s past relevant work. Accordingly, the ALJ found

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that Plaintiff was not disabled at step four. (AR 35-36.)

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SOLE ISSUE IN DISPUTE
According to Plaintiff, “the only question in issue is the vocational impact of the

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Plaintiff’s well documented migraine headaches.”

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Commissioner contends in her cross-motion that, by challenging only the ALJ’s evaluation

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of the vocational impact of Plaintiff’s migraine headaches, Plaintiff has: (1) conceded the

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accuracy of the ALJ’s other findings, including the ALJ’s assessment of the medical

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evidence regarding Plaintiff’s migraines and the ALJ’s finding regarding Plaintiff’s

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statements concerning the intensity, persistence, and limiting effects of his symptoms; and

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(2) waived any challenge to those findings. (See ECF No. 29-1 at 18-20.)

(See ECF No. 24 at 16.)

The

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To be sure, if Plaintiff was challenging, for example, the ALJ’s step three

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determination that Plaintiff did not have an impairment or combination of impairments that
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met or medically equaled one of the impairments listed in the Commissioner’s Listing of

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Impairments, the Court would have expected his counsel to explicitly make that claim in

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his supporting memorandum, specify the Listing that Plaintiff contended his impairment

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met or medically equaled, and cite the medical evidence of record that he contended met

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or equaled all the criteria of the Listing. Plaintiff’s counsel did not do any of these things.

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Further, if Plaintiff was challenging the ALJ’s evaluation of the opinions of any of

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the physicians of record, the Court would have expected his counsel to explicitly make that

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claim in his supporting memorandum, identify the physicians of record whose opinions

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Plaintiff was contending the ALJ failed to properly evaluate, set forth the governing legal

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standard, and set forth arguments in support of his contention that the ALJ failed to follow

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the proper legal standard in his evaluation of those physicians’ opinions.

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counsel did not do any of these things.

Plaintiff’s

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And, if Plaintiff was challenging the ALJ’s adverse credibility determination with

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respect to Plaintiff’s statements concerning the intensity, persistence, and limiting effects

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of his symptoms, the Court would have expected his counsel to explicitly make that claim

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in his supporting memorandum, set forth the governing legal standard, and set forth

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arguments in support of his contention that the reasons given by the ALJ in support of his

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adverse credibility determination did not satisfy the governing legal standard. Plaintiff’s

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counsel did not do any of these things.

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Nevertheless, the Court concludes that Plaintiff’s contention that the ALJ “erred in

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failing to adequately consider the vocational impact of Plaintiff’s frequent work

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interruptions due to migraine headaches,” which is the heading to the argument section in

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Plaintiff’s supporting memorandum, turns on whether the ALJ should have credited

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Plaintiff’s statements concerning the intensity, persistence, and limiting effects of his

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migraine headaches. 2 Accordingly, notwithstanding the failure of Plaintiff’s counsel to

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properly raise and brief this issue, the Court will deem this item the sole issue in dispute.

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STANDARD OF REVIEW

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

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determine whether the Commissioner’s findings are supported by substantial evidence and

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whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846

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(9th Cir. 1991). Substantial evidence means “more than a mere scintilla,” but less than a

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preponderance. Richardson v. Perales, 402 U.S. 389, 401 (1971); Desrosiers v. Sec’y of

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Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is

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“such relevant evidence as a reasonable mind might accept as adequate to support a

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conclusion.” Richardson, 402 U.S. at 401. This Court must review the record as a whole

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and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-

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30 (9th Cir. 1986).

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interpretation,” the Commissioner’s decision must be upheld. Gallant v. Heckler, 753 F.2d

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1450, 1452 (9th Cir. 1984).

“Where evidence is susceptible of more than one rational

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DISCUSSION

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The Court must determine whether the ALJ’s adverse credibility determination

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satisfies the governing legal standard. An ALJ’s assessment of pain severity and claimant

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credibility is entitled to “great weight.” See Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir.

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1989); see also Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1986). “To determine

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whether a claimant’s testimony regarding subjective pain or symptoms is credible, an ALJ

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must engage in a two-step analysis.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir.

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2007). “First, the ALJ must determine whether the claimant has presented objective

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The Court notes that Plaintiff concedes that “he has the physical and mental capacity to [perform]
his former work unless he is having a severe migraine.” (ECF No. 24 at 17.)
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medical evidence of an underlying impairment ‘which could reasonably be expected to

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produce the pain or other symptoms alleged.’” Id. at 1036 (quoting Bunnell v. Sullivan,

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947 F.2d 341, 344 (9th Cir. 1991)). Second, if the first step is satisfied, and there is no

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evidence of malingering, “the ALJ can reject the claimant’s testimony about the severity

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of [the claimant’s] symptoms only by offering specific, clear and convincing reasons for

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doing so.” Id.; see also Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Dodrill v.

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Shalala, 12 F.3d 915, 918 (9th Cir. 1993); Bunnell, 947 F.2d at 343. “General findings are

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insufficient; rather the ALJ must identify what testimony is not credible and what evidence

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undermines the claimant’s complaints.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.

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1998) (internal quotation marks and citations omitted).

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As noted above, at step two of the Commissioner’s sequential evaluation process,

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the ALJ found that Plaintiff’s migraine headaches qualified as a severe impairment. At the

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administrative hearing, Plaintiff testified that his migraine headaches prevented him from

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doing his former job as a consultant with Raytheon (AR 45); that he would miss two days

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a month while working at Raytheon due to headaches (id.); and that, while he was let go

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due to a reduction in force in July 2010, he believed he was specifically let go because of

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him missing work (AR 46). Plaintiff further testified that he has migraines between 20 and

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23 days per month; that some are mild, and others are moderate or severe; and that it takes

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him 12-16 hours to recover from a severe migraine. (AR 47.) Plaintiff described a mild

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migraine as one that is distracting, but still allows him to focus. (AR 40.) Plaintiff said he

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averaged approximately three severe migraines per month, ten moderate migraines per

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month, and ten mild migraines per month. (AR 48.)

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In addition, Plaintiff testified Botox treatment reduced the frequency of his

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headaches by approximately 25%. (AR 48.) He testified that he also took sumatriptan for

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severe headaches (id.), and that when he had a severe migraine, he injected himself with

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Imitrex (AR 49). Plaintiff further testified that when he had a severe migraine, he did not

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even leave his house. (Id.) Plaintiff testified that he also took CBD oil that occasionally

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helped the mild to moderate headaches, but was no benefit to his severe headaches. (Id.)
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The VE testified that, if a hypothetical individual with Plaintiff’s vocational profile

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had to miss three days of work per month due to migraine headaches, such an individual

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could not sustain any work. (AR 59.) Accordingly, the ALJ’s finding that Plaintiff

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remained capable of performing his past relevant work turned on the ALJ’s determination

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that, while “[Plaintiff’s] medically determinable impairments could reasonably be expected

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to cause some of the alleged symptoms, . . . [Plaintiff’s] statements concerning the

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intensity, persistence and limiting effects of these symptoms are not entirely consistent

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with the medical evidence and other evidence in the record for the reasons explained in this

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decision.” (AR 30.)

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As a preliminary matter, the Court notes that, under the governing standard set forth

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above, an ALJ is only required to provide clear and convincing reasons for rejecting a

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claimant’s testimony when there is no evidence of malingering. See, e.g., Smolen, 80 F.3d

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at 1283-84.

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exaggeration. (See AR 22.) However, the ALJ did not use the word malingering, and the

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Court will assume without deciding that “symptom exaggeration” is not equivalent to

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“malingering.” The question thus becomes whether the reasons cited by the ALJ in support

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of his adverse credibility determination qualify as “clear and convincing.” The Court

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gleans from the ALJ’s decision at least four reasons in support of his adverse credibility

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determination.

Here, the ALJ did cite evidence in the treatment record of symptom

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First, the ALJ noted that, although Plaintiff’s headaches began in the early 1990s,

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Plaintiff continued to work well into the twenty-first century with his headaches at

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approximately the same level of severity prior to the alleged onset date; and that Plaintiff

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did not stop working due to the impairment, but because of a “reduction in force,” and he

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likely would have continued to work after July 2010, if not for the layoff. (AR 29.) The

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Court finds that Plaintiff’s cited ability to work notwithstanding the migraine headache

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symptoms constituted a clear and convincing reason on which the ALJ could properly rely

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in support of his adverse credibility determination. See Bray v. Comm’r of Soc. Sec.

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Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (“In reaching a credibility determination, an
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ALJ may weigh inconsistencies between the claimant’s testimony and his or her conduct,

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daily activities, and work record, among other factors.”); Bruton v. Massanari, 268 F.3d

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824, 828 (9th Cir. 2001) (providing an ALJ may properly rely on fact that claimant left his

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job because he was laid off, rather than because he was injured); see also Greger v.

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Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (holding that continued work undermines

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disability).

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Second, the ALJ cited inconsistencies in Plaintiff’s testimony about the frequency

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of his headaches. Although Plaintiff had testified at the administrative hearing that he saw

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only a 25% reduction in the frequency of headaches while using Botox, he had informed

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one of his doctors on March 4, 2015, that his Botox injections had been very successful in

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relieving his migraine headache symptoms. (See AR 29-30 (citing AR 990).) Later on in

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his decision, the ALJ noted that another of Plaintiff’s doctors reported on February 23,

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2016, that Plaintiff’s headaches had been tolerable on his current regimen, including Botox

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injections every three months—and that Plaintiff said he was only getting two severe

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headaches a month. (AR 32 (emphasis added) (citing AR 1104).) The Court finds that

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these inconsistencies in Plaintiff’s testimony also constitute a clear and convincing reason

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on which the ALJ could properly rely in support of his adverse credibility determination.

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See Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) (providing an ALJ may use

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“ordinary techniques of credibility evaluation,” such as considering the claimant’s

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reputation for truthfulness and any inconsistent statements in her testimony); Smolen, 80

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F.3d at 1284 (noting an ALJ may consider “prior inconsistent statements concerning the

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symptoms, and other testimony by the claimant that appears less than candid”); Bunnell,

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947 F.2d at 346 (“[T]he adjudicator may discredit the claimant’s allegations based on

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inconsistencies in the testimony or on relevant character evidence.”).

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Third, the ALJ cited Plaintiff’s level of activity. He noted that Plaintiff had shared

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all that was “going on in his life” in April 2015 with his treating psychologist, Dr. Mallon.

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Plaintiff’s son was graduating from high school and wished to attend Arizona State

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University. Plaintiff had bought a mobile home near Camp Pendleton on the California
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coast, and he had been spending much time there. He had other friends living in Palm

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Desert, California, and he wanted to get a residence there as well. He had an offer to move

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to Germany to assist with a graduate program in American Studies based in Heidelberg.

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He was preparing to sell his Oregon home, but he had been acting as a mentor to several

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high school students and had also been helping coach his son’s high school basketball team.

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He also functioned on the Board of the local United Service Organizations center, which

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he had helped bring to Portland. Plaintiff told the doctor he realized he had “lots of irons

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in lots of fires,” but that he felt he was doing pretty well coping. (AR 30, citing AR 1189-

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90.) Earlier in his decision, the ALJ had noted that Plaintiff had travelled to Europe from

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April 5 to May 20, 2016, and he had played golf twice in the week prior to the hearing.

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(AR 24.) It seems to the Court that this level of activity cannot be reconciled with

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Plaintiff’s testimony to the effect that his migraine headaches are of disabling severity. The

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Court therefore finds that this third reason cited by the ALJ also constitutes a clear and

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convincing reason on which the ALJ could properly rely in support of his adverse

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credibility determination. See Berry v. Astrue, 622 F.3d 1228, 1234-35 (9th Cir. 2010)

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(concluding evidence that claimant’s self-reported activities suggested a higher degree of

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functionality than reflected in subjective symptom testimony adequately supported adverse

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credibility determination); Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 693

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(9th Cir. 2009) (reasoning evidence that claimant exercised and undertook projects

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suggested that claimant’s later claims about the severity of his limitations were

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exaggerated); Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (providing evidence of daily

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activities may form the basis of an adverse credibility determination where it contradicts

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the claimant’s other testimony).

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Fourth, the ALJ cited evidence in the record indicative of Plaintiff’s tendency to

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exaggerate his symptoms. Specifically, the ALJ cited: (1) an incident when Plaintiff had

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feigned assaulting a clinician who had asked follow-up questions that Plaintiff stated he

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did not like; and (2) Plaintiff’s scores on the Minnesota Multiphasic Personality Inventory

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(MMPI-2) test administered by Dr. Mallon on September 10, 2012, after Plaintiff’s alleged
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onset date. (AR 30 (referring to AR 1167 and AR 548).) According to Dr. Mallon,

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“[m]ultiple indicators in [Plaintiff’s] validity profile suggest that the test results are not

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valid,” and “[m]ore specifically, the results suggest that the patient exaggerated his report

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of symptoms and problems on the MMPI-2 assessment.” Further, Dr. Mallon noted, “This

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response set may affect the validity of other symptom reports.” (AR 548.) The Court finds

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that this also constitutes a clear and convincing reason on which the ALJ could properly

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rely in support of his adverse credibility determination. See Thomas v. Barnhart, 278 F.3d

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947, 960 (9th Cir. 2002) (concluding ALJ properly discredited subjective symptom

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testimony based on finding that claimant engaged in exaggeration); Tonapetyan, 242 F.3d

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at 1148 (reaching the same result where claimant had a “tendency to exaggerate”).

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In sum, the Court finds the ALJ provided “specific, clear and convincing reasons”

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for rejecting Plaintiff’s testimony about the severity of his symptoms. See Smolen, 80 F.3d

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at 1281. The Court therefore concludes the ALJ did not err in his adverse credibility

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determination. Accordingly, the Court rejects Plaintiff’s contention that the ALJ “erred in

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failing to adequately consider the vocational impact of Plaintiff’s frequent work

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interruptions due to migraine headaches.” (ECF No. 24 at 12.)

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CONCLUSION

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For the foregoing reasons, Plaintiff’s motion for summary judgment is DENIED,

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the Commissioner’s cross-motion for summary judgment is GRANTED, and it is hereby

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ORDERED that Judgment be entered affirming the decision of the Commissioner and

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dismissing this action with prejudice.

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IT IS SO ORDERED.

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DATED: June 15, 2018

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