Teverbaugh v. Berryhill

Filing 16

REPORT AND RECOMMENDATION re 11 Cross Motions for Summary Judgment (ECF No.s 11 , 12 ). Signed by Magistrate Judge Robert N. Block on 7/24/2018.(jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 17-cv-1522-JM (RNB)

LERITA TEVERBAUGH,
Plaintiff,

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v.

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REPORT AND
RECOMMENDATION REGARDING
CROSS-MOTIONS FOR SUMMARY
JUDGMENT

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

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Defendant.

(ECF Nos. 11, 12)

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This Report and Recommendation is submitted to the Honorable Jeffrey T. Miller,

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United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule

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72.1(c) of the United States District Court for the Southern District of California.

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On July 26, 2017, plaintiff Lerita Teverbaugh filed a Complaint pursuant to 42

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U.S.C. § 405(g) seeking judicial review of a decision by the Commissioner of Social

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Security denying her applications for a period of disability and disability insurance benefits

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and supplemental security income (“SSI”). (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. For the reasons set forth herein, the Court RECOMMENDS that

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plaintiff’s motion for summary judgment be DENIED, that the Commissioner’s cross-

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motion for summary judgment be GRANTED, and that Judgment be entered affirming the

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decision of the Commissioner and dismissing the action with prejudice.

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PROCEDURAL BACKGROUND

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On September 11, 2013, plaintiff protectively filed applications for a period of

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disability and disability insurance benefits and SSI under Title II and XVI, respectively, of

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the Social Security Act, alleging disability beginning January 19, 2013.

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Administrative Record [“AR”] 194-203, 204-09.) After her applications were denied

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initially and upon reconsideration (AR 129-33, 137-41), plaintiff requested an

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administrative hearing before an administrative law judge (“ALJ”). (AR 146-47.) An

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administrative hearing was held on November 18, 2015. Plaintiff appeared at the hearing

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with counsel, and testimony was taken from her and a vocational expert (“VE”). (AR 32-

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78.)

(Certified

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As reflected in his January 22, 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 her alleged

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onset date through the date of the decision. (AR 10-24.) The ALJ’s decision became the

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final decision of the Commissioner on May 26, 2017, when the Appeals Council denied

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plaintiff’s request for review. (AR 1-6.) 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 since January 19, 2013, her alleged

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onset date. (AR 15.)

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At step two, the ALJ found that plaintiff had the following severe impairments:

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degenerative disc disease of the lumbar and cervical spines, obesity, diabetes mellitus II,

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and osteoarthritis versus rheumatoid arthritis. (AR 15.)

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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 the severity of one of the impairments listed

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in the Commissioner’s Listing of Impairments. (AR 16.)

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Next, the ALJ determined that, from the alleged onset date to the date of the decision,

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plaintiff had the residual functional capacity (“RFC”) “to perform the full range of semi-

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skilled, light work.” (AR 16.)

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For purposes of his step four determination, the ALJ adduced and accepted the VE’s

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testimony that a hypothetical person with plaintiff’s vocational profile would be able to

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perform the requirements of plaintiff’s past relevant work as a companion. Accordingly,

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the ALJ found that plaintiff was not disabled at step four. (AR 19-20.)

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DISPUTED ISSUES

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As reflected in plaintiff’s cross-motion for summary judgment, the disputed issues

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that plaintiff is raising as the grounds for reversal and remand are as follows:
1) Whether the ALJ failed to properly evaluate the medical evidence in assessing
plaintiff’s RFC; and
2) Whether the ALJ failed to properly evaluate plaintiff’s subjective complaints.

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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). Where evidence is susceptible of more than one rational interpretation,
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the Commissioner’s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452

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(9th Cir. 1984).

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DISCUSSION

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A.

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Reversal is not warranted based on the ALJ’s alleged failure to properly
evaluate the medical evidence in assessing plaintiff’s RFC.

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Plaintiff contends that the ALJ’s physical RFC assessment is deficient because he

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did not mention in his decision his consideration of Social Security Ruling (“SSR”) 02-1p,

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available at 2002 WL 34686281, which deals with obesity. Plaintiff appears to be arguing

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that, if the ALJ had properly considered SSR 02-1p, he would have found plaintiff more

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limited in her standing and walking abilities. (See ECF No. 11 at 5-7.) Although plaintiff

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cites the findings on examination of Dr. Dao, the consultative examiner, and maintains

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those findings are “inconsistent with the ability to engage in the prolonged standing and

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walking required of light work,” (see ECF No. 13 at 4), Dr. Dao expressly opined that

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plaintiff could stand and walk for 6 hours in an 8-hour work day. (See AR 325.) Dr. Dao’s

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opinion, based on his own clinical findings and examination of plaintiff, constituted

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substantial evidence on which the ALJ could properly rely for purposes of his RFC

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determination. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). Based on

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their review of the medical record, the State agency physicians likewise opined that

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plaintiff could stand/walk for 6 hours. (See AR 86, 111.) Their opinions also constituted

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substantial evidence upon which the ALJ could properly rely for purposes of his RFC

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determination. See Thomas v. Barnhart, 278 F.3d 947, 957(9th Cir. 2002) (“The opinions

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of non-treating or non-examining physicians may also serve as substantial evidence when

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the opinions are consistent with independent clinical findings or other evidence in the

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record.”).

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Plaintiff further contends that the ALJ’s mental RFC assessment is deficient because

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it “represents nothing more than an impermissible lay medical opinion.” (See ECF No. 11

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at 7.)

The Court disagrees.

The ALJ was fulfilling his responsibilities under the
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Commissioner’s regulations when, after analyzing the record as a whole, he determined

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that plaintiff’s partially credited pain complaints would eliminate her ability to perform

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skilled work.

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B.

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Reversal is not warranted based on the ALJ’s alleged failure to properly
evaluate plaintiff’s subjective complaints.

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At the administrative hearing, plaintiff attributed her inability to work to abdominal

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pain caused by constipation and lower back pain. (See AR 40-41.) However, plaintiff

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admitted that her abdominal and lower back pain was alleviated with her daily pain

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medication and bi-monthly epidurals, to the point where she did not need a doctor. (AR

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39-40, 44, 51.) Plaintiff also confirmed that, despite her pain, there had never been a day

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that she could not provide any help or care for her grandson. (AR 70.)

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Plaintiff also testified at the administrative hearing about her daily activities. During

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a typical day, plaintiff spends time preparing food, sitting down, lying down, and relaxing.

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In the morning, she wakes up, takes her pain medication, and drives her grandchildren,

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ages 12 and 14, to school. (AR 49.) Due to her grandson’s special needs (psychosis,

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bipolar, and brain tumor), plaintiff takes care of him and is paid for approximately 50 hours

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a month of in-home care by In-Home Support Services (“IHSS”). (AR 53, 61.) She cooks

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breakfast for him daily and supervises him as he eats and dresses. (AR 64-65.) In the

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evening, plaintiff cooks dinner, helps her grandchildren with their homework, and monitors

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her grandson while he brushes his teeth. (AR 52, 67.) Plaintiff travels to Lancaster,

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California and Los Angeles, California for her and her grandchildren’s doctor visits. (AR

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51-52.)

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The ALJ found that, while plaintiff’s medically determinable impairments could

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reasonably be expected to cause the alleged symptoms, her statements concerning the

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intensity, persistence and limiting effects of the symptoms were not entirely credible. (See

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AR 17.)

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An ALJ’s assessment of pain severity and claimant credibility is entitled to “great

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weight.” See Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779

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F.2d 528, 531 (9th Cir. 1986). Under the “Cotton standard,” where the claimant has

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produced objective medical evidence of an impairment which could reasonably be

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expected to produce some degree of pain and/or other symptoms, and the record is devoid

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of any affirmative evidence of malingering, the ALJ may reject the claimant’s testimony

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regarding the severity of the claimant’s pain and/or other symptoms only if the ALJ makes

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specific findings stating clear and convincing reasons for doing so. See Cotton v. Bowen,

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799 F.2d 1403, 1407 (9th Cir. 1986); see also Smolen v. Chater, 80 F.3d 1273, 1281 (9th

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Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993); Bunnell v. Sullivan, 947

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F.2d 341, 343 (9th Cir. 1991). “General findings are insufficient; rather the ALJ must

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identify what testimony is not credible and what evidence undermines the claimant’s

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complaints.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (internal quotation

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marks and citations omitted).

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Here, one of the reasons cited by the ALJ in support of his adverse credibility

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determination was that plaintiff’s regular activities suggested that she was more capable

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than she alleged. (See AR 17.)

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The Ninth Circuit has noted that there are “two grounds for using daily activities to

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form the basis of an adverse credibility determination”: Evidence of the daily activities

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either (1) contradicts the claimant’s other testimony, or (2) meets the threshold for

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transferable work skills. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). Here, while

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it appears that the ALJ was specifically invoking the first ground, plaintiff’s ability to work

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part-time as a paid caregiver for her disabled grandson actually implicated both grounds.

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The Court therefore finds that this reason constituted a legally sufficient reason on which

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the ALJ could properly rely in support of his adverse credibility determination. See Molina

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v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (“Even where those activities suggest some

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difficulty functioning, they may be grounds for discrediting the claimant’s testimony to the

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extent that they contradict claims of a totally debilitating impairment.”); Berry v. Astrue,
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622 F.3d 1228, 1234-35 (9th Cir. 2010) (evidence that claimant’s self-reported activities

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suggested a higher degree of functionality than reflected in subjective symptom testimony

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adequately supported adverse credibility determination); Valentine v. Commissioner Social

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Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009) (evidence that claimant exercised and

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undertook projects suggested that claimant’s later claims about the severity of his

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limitations were exaggerated); Bray v. Commissioner of Social Security Admin., 554 F.3d

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1219, 1227 (9th Cir. 2009) (“In reaching a credibility determination, an ALJ may weigh

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consistencies between the claimant’s testimony and his or her conduct, daily activities, and

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work record, among other factors.”).

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The other reason cited by the ALJ in support of his adverse credibility determination

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was that “[t]he objective medical evidence and all other evidence is not reasonably

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consistent with the claimants allegations of total disability under our rules, but it is

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sufficient to limit the claimant to only semi-skilled work.” (AR 17.) In support of this

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reason, the ALJ proceeded to discuss the examination findings and physician opinions of

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record. He noted for example that “[m]ost treatment notes list only subjective allegations

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without clinical findings to support them,” and that “[t]hose records that do mention

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clinical findings note primarily tenderness to palpation, but no acute distress, normal gait,

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good range of motion throughout the extremities, and nearly full to full strength.” He also

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cited inter alia Dr. Dao’s consultative internal medical medicine evaluation and Dr. Dao’s

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opinion that plaintiff could perform medium work with frequent postural activities. (See

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AR 17-18.)

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Plaintiff contends that this second reason was legally insufficient because an adverse

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credibility determination may not be based solely on the alleged lack of support in the

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objective medical evidence. (See ECF No. 11 at 10-11; ECF No. 13 at 6.) Here, however,

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lack of objective medical support was not the sole basis for the ALJ’s adverse credibility

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determination, but just one of the reasons. See Burch v. Barnhart, 400 F.3d 676, 681 (9th

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Cir. 2005) (“Although lack of medical evidence cannot form the sole basis for discounting

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pain testimony, it is a factor that the ALJ can consider in his credibility analysis.”).
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The Court therefore finds that the ALJ’s second stated reason also constituted a

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

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credibility determination. See, e.g., Molina, 674 F.3d at 1113 (ALJ properly rejected

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claimant’s testimony in part because it was inconsistent with medical evidence in the

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record); Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (ALJ properly considered

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conflict between claimant’s testimony about knee pain and specific evidence in the record);

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Morgan v. Comm’r of Soc. Sec., 169 F.3d 595, 600 (9th Cir. 1999) (ALJ may properly

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consider conflict between claimant’s testimony of subjective complaints and objective

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medical evidence in the record); Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1998) (ALJ

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may properly rely on weak objective support for the claimant’s subjective complaints);

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Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (ALJ may properly rely on lack of

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objective evidence to support claimant’s subjective complaints).

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CONCLUSION AND RECOMMENDATION

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For the foregoing reasons, this Court RECOMMENDS that plaintiff’s motion for

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summary judgment be DENIED, that the Commissioner’s cross-motion for summary

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judgment be GRANTED, and that Judgment be entered affirming the decision of the

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Commissioner and dismissing this action with prejudice.

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Any party having objections to the Court’s proposed findings and recommendations

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shall serve and file specific written objections within 14 days after being served with a

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copy of this Report and Recommendation. See Fed. R. Civ. P. 72(b)(2). The objections

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should be captioned “Objections to Report and Recommendation.” A party may respond

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to the other party’s objections within 14 days after being served with a copy of the

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objections. See Fed. R. Civ. P. 72(b)(2). See id.

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IT IS SO ORDERED.

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Dated: July 25, 2018

_________________________________
ROBERT N. BLOCK
United States Magistrate Judge
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