Pena v. Berryhill

Filing 21

REPORT AND RECOMMENDATION re 14 and 17 MOTIONS for Summary Judgment. IT IS HEREBY RECOMMENDED THAT THE DISTRICT COURT: 1. GRANT defendant's Cross-Motion for Summary Judgment [Doc. No. 14]. 2. DENY plaintiff's Motion for Summary Judg ment [Doc. No. 17]. Within fourteen (14) days after being served with a copy of this Report and Recommendation, "any party may serve and file written objections." 28 U.S.C. § 636(b)(1)(B)&(C). Signed by Magistrate Judge Karen S. Crawford on 7/30/2018.(acc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MARINA PENA,
Plaintiff,

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Case No.: 3:17-cv-01822-AJB-KSC

v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security

REPORT AND
RECOMMENDATION RE CROSSMOTIONS FOR SUMMARY
JUDGMENT

Defendant.

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[Doc. Nos. 14, 17]

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Pursuant to Title 42, United States Code, Section 405(g), of the Social Security Act

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("SSA"), plaintiff filed a Complaint to obtain judicial review of a final decision by the

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Commissioner of Social Security ("Commissioner") denying her disability insurance

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benefits.1 Pursuant to Title 28, United States Code, Section 636(b)(1)(B), and Civil Local

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Rules 72.1(c)(1)(c) and 72.2(a), this matter was assigned to the undersigned Magistrate

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Judge for a Report and Recommendation.

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Title 42, United States Code, Section 405(g), provides as follows: “Any individual, after any final
decision of the Commissioner of Social Security made after a hearing to which he was a party … may
obtain a review of such decision by a civil action … brought in the district court of the United States …
The court shall have power to enter, upon the pleadings and transcript of the record, a judgment
affirming, modifying or reversing the decision of the Commissioner of Social Security, with or without
remanding the cause for a rehearing. The findings of the Commissioner … as to any fact, if supported by
substantial evidence, shall be conclusive.”
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Presently before the Court are: (1) defendant’s Motion for Summary Judgment and

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Opposition to plaintiff’s Motion for Summary Judgment [Doc. No. 14]; (2) plaintiff’s

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Motion for Summary Judgment [Doc. No. 17]; (3) plaintiff’s reply to defendant’s

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Opposition to plaintiff’s Motion for Summary Judgment [Doc. No. 19]; and (4) the

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Administrative Record [Doc. No. 10]. After careful consideration of the moving and

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opposing papers, as well as the Administrative Record and the applicable law, this Court

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RECOMMENDS that defendant’s Motion be GRANTED and plaintiff’s Motion be

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DENIED.

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I.

BACKGROUND AND PROCEDURAL HISTORY

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On July 22, 2015, plaintiff filed an application for supplemental security income

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(“SSI”) under Title XVI of the Social Security Act (“SSA”), alleging disability beginning

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July 1, 2012. [Certified Administrative Record, at pp. 179-88 (“AR”)]. On February 23,

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2016, the Commissioner denied plaintiff’s application. [AR 111-14]. On May 13, 2016,

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upon reconsider, the Commissioner again denied plaintiff’s application. [AR 120-24].

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On July 5, 2016, plaintiff requested a de novo hearing before an Administrative Law

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Judge (“ALJ”). [AR 125-27]. On February 1, 2017, plaintiff received notice of the hearing.

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[AR 143]. A hearing before an ALJ was held on April 24, 2017. [AR 39]. At the hearing,

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plaintiff amended the alleged onset date of disability from June 1, 2012 to July 22, 2015.

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[AR 19].

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On May 2, 2017, the ALJ issued a written opinion concluding that plaintiff did not

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qualify for SSI under the SSA. [AR 19-29]. In reaching this decision, the ALJ found that

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the plaintiff has severe impairments of “history of breast cancer; metabolic syndrome with

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CAD; overweight/obesity; atypical chest pain; uterine tumor; neuropathy; and

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degenerative joint disease.” [AR 21]. However, the ALJ concluded that she did not have

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an impairment, or combination of impairments, that meet SSA disability criteria, and that

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she possesses the residual functional capacity to perform light work with six additional

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limitations. [AR 22-23].

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Plaintiff sought review from the Appeals Council, which was denied on July 18,

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2017 [AR 1-5], after which she filed the instant action on September 8, 2017. [Doc. No.

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1].

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II.

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The final decision of the Commissioner must be affirmed if it is supported by

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substantial evidence and if the Commissioner has applied the correct legal standards.

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Batson v. Comm’r of Social Security Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); 42

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U.S.C § 405(g). Under the substantial evidence standard, the Commissioner’s findings are

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upheld if supported by inferences reasonably drawn from the record. [Id.]. If there is

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evidence in the record to support more than one rational interpretation, the District Court

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must defer to the Commissioner’s decision. [Id.]. Substantial evidence means “such

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relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

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Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). The Court must weigh both the

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evidence that supports and detracts from the administrative ruling. Tackett v. Apfel, 180

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F.3d 1094, 1097 (9th Cir. 1999).

STANDARDS OF REVIEW

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Pursuant to Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary

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judgment if the movant shows that there is no genuine dispute as to any material fact and

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the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Summary

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judgment motions, as defined by [Rule 56], contemplate the use of evidentiary material in

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the form of affidavits, depositions, answers to interrogatories, and admissions. In Social

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Security appeals, however, the Court may ‘look no further than the pleadings and the

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transcript of the record before the agency,’ and may not admit additional evidence.” Morton

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v. Califano, 481 F.Supp. 908, 914 n. 2 (E.D. Tenn. 1978); 42 U.S.C. § 405(g). “[A]lthough

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summary judgment motions are customarily used [in social security cases], and even

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requested by the Court, such motions merely serve as vehicles for briefing the parties’

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positions, and are not a prerequisite to the Court’s reaching a decision on the merits.” Kenny

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v. Heckler, 577 F.Supp. 214, 216 (D.C. Ohio 1983).

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III.

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A.

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MEDICAL EVIDENCE
Chronological Summary of Medical Records

Plaintiff is a fifty-three year old Hispanic-American female with a family history of
breast cancer, and is a chronic smoker. [AR 274].

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In 2012, plaintiff was diagnosed with high blood pressure and later was hospitalized

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for a heart attack, for which she received an angioplasty and a stent. [AR 448]. She also

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had her gallbladder removed in August of 2012. [AR 449].

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In August of 2014, a mammogram revealed breast cancer in plaintiff’s right breast,

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for which she underwent radiation therapy from December 2014 through January 2015.

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[AR 273, 276]. The record does not indicate whether plaintiff underwent surgery to remove

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the cancer. She tolerated the radiation therapy with mild, acute side effects [AR 277], and

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a mammogram of both breasts in May, 2015 indicated a benign result. [AR 279]. During

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a September, 2014, checkup, plaintiff’s EKG was within normal limits and indicated “good

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exercise capacity.” [AR 272]. During an October, 2014 checkup, plaintiff indicated feeling

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more anxious than usual and smoking more. [AR 289].

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Plaintiff indicated during an April, 2015 checkup that she was generally tolerating

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the prescribed medication Tamoxifen.2 [AR 281]. However, she did express that she was

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experiencing hot flashes as a side effect. [Id.].

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In May, 2015, plaintiff had a second heart attack [AR 1014], was diagnosed with

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“acute coronary syndrome,” and had two stent placements. [AR 297]. The discharge report

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also indicated “breast cancer, coronary artery disease, and deep vein thrombosis in the

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past.” [Id.]. Plaintiff was noted to be noncompliant in taking Plavix because she was “very

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preoccupied and depressed related to her breast cancer diagnosis.” [Id.]. Her doctor

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indicated that she suffered from a “significant amount of anxiety and depression.” [AR

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Tamoxifen is commonly used to treat breast cancer and used to decrease the chance of breast cancer
recurrence in women who have received treatment for the disease. Tamoxifen in Pill Form (Brand
Name: Nolvadex), Breastcancer.org (March 30, 2018),
http://www.breastcancer.org/treatment/hormonal/serms/tamoxifen.
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304]. In May, 2015, plaintiff also had a positive stress test prompting a cardiac

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catheterization that proceeded without complications. [AR 297].

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A June 2015 “Behavioral Health Adult Intake Assessment” indicated plaintiff was

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depressed after the death of a close relative, but was feeling better and optimistic about her

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recovery from cancer and her heart condition. [AR 398]. She did not report any signs or

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symptoms requiring any clinical attention, and otherwise had a healthy evaluation. [AR

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388-399].

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Plaintiff stopped taking her prescribed Tamoxifen due to abnormal uterine bleeding

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according to a December, 2015 medical appointment report. [AR 428]. She also relayed

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having severe hot flashes and night sweats around the same time. [AR 430]. Although

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scheduled for a uterine biopsy, the medical report indicated she could not tolerate the

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procedure due to an anxiety attack. [AR 432].

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In November, 2015, plaintiff underwent a pelvic ultrasound. [AR 435]. The

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ultrasound identified “small cystic structures in the endometrium.” [AR 435-36]. A

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medical consultation in January of 2016 noted that there were no masses present. [AR 452].

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Further, a pathology report in February of 2016 indicated “mainly mucus and minute strips

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of benign endometrial surface epithelium, [and] no evidence of hyperplasia or malignancy

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in the submitted sample.” [AR 762].

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In February of 2016, plaintiff was evaluated for complaints of chest plain. [AR 778].

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She was diagnosed with chest pressure, hypertension, shortness of breath, and dizziness,

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and referred for a stress test. [AR 778-79]. The March 2016 stress test indicated a “resting

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left ventricular ejection fraction” of 74%, which is within the normal range. [AR 522]. In

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April of 2016, plaintiff had a normal echocardiogram, indicating systolic function with

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ejection fraction of 57%, which was within the normal range. [AR 1013-14].

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Plaintiff had a breast cancer follow-up in April, 2016. [AR 480]. She had a negative

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endometrial biopsy, despite an episode of vaginal bleeding. [Id.]. She was placed back on

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Tamoxifen, and although she had stopped taking her antidepressant medications, she

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denied any depressive or suicidal thoughts. [Id.]. Further, she planned to undergo a

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hysterectomy to treat her diagnosed uterine fibroids. [Id.].

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In July of 2016, plaintiff reported having hot flashes. [AR 1247]. That same month,

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plaintiff was instructed to stop taking Tamoxifen and take Anstrasol in its place. [AR

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1249].

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During a December 2016 physical exam, plaintiff reported mild shortness of breath.

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[AR 1385]. She was cooperative, but anxious. [Id.]. The discharge records indicated panic

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attacks, pain without a known cause, nonspecific chest pain, and generalized anxiety. [AR

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1388].

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At a January, 2017 physical exam, plaintiff reported vision issues and was referred

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to an optometrist. [AR 1137]. All other results were normal and her existing medical

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conditions were stable. [AR 1138].

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In February, 2017, plaintiff had a checkup before a cataract removal surgery. [AR

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1033]. She complained of hot flashes at that time. [AR 1157]. The Administrative Record

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reveals plaintiff was scheduled to undergo the planned hysterectomy in March, 2017. [Id.].

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However, there is no information in the record indicating whether plaintiff underwent the

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surgery. Plaintiff underwent cataract surgery on May 4, 2017. [AR 1465].
Plaintiff was referred for right hand/bilateral “trigger fingers”3 in May of 2017. [AR

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1480].

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B.

Findings of Medical Experts

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The ALJ determined that the medical evidence showed plaintiff was able to perform

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a range of light work (despite her physical conditions), with limitations. [AR 871; 1064].

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The limitations included: “[plaintiff] could life and/or carry, push and/or pull, 20 pounds

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occasionally and 10 pounds frequently; sit for 6 hours in an 8-hour workday; stand and/or

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walk for six hours in an 8-hour workday; occasionally climb ramps, stairs, ladders, ropes,

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A condition where finger is stuck in a bent position. Trigger Finger, American Society for Surgery of
the Hand (2015), http://www.assh.org/handcare/hand-arm-conditions/trigger-finger.
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and/or scaffolds; and frequently perform all other postural activity, including balancing,

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stooping, kneeling, crouching, and crawling.” [AR 26]. This was confirmed by State

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agency reviewers upon their evaluation of the record. [AR 86-91; 103-08]. The ALJ further

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determined that “the treatment records supported that [the plaintiff] was also limited to

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frequent use of the right upper extremity for manipulation [sic] and feeling; standing and/or

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walking for 20 minutes, at a time, and for 5.5 hours; and lift and/or carry, push and/or pull,

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10 pounds occasionally and 10 frequently with the right upper extremity.” [AR 26].

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Reading the ALJ’s opinion in context, it is apparent that the ALJ identified substantial

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physical limits on plaintiff’s ability to use her right arm and hand. 4

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A consultative examiner found, upon an independent review, that plaintiff was

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capable of a full range of light work capacity. [AR 452]. However, the ALJ concluded,

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contrary to the consultative examiner’s findings, that the overall medical evidence

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“support[ed] that the [plaintiff] [had] limitations with postural activity, along with

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additional limitations in lifting and/or carrying with the right upper extremity.” [AR 26].

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Another consultative examiner, a licensed psychologist, evaluated the claim and

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determined that plaintiff had either no, or mild, mental limitations. [AR 456-60]. The ALJ

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concluded that these findings were “fully consistent with the evidence of the record, and

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[were] afforded great weight.” [AR 27].

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Furthermore, a medical expert at the oral hearing testified that plaintiff’s medical

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conditions did not meet or equal any medical listing, and that she was not disabled because

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she was capable of a range of medium work. [AR 42-54]. Despite the medical expert’s

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testimony, the ALJ concluded that the objective record supported a more restrictive

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residual functional capacity. [AR 27].

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The ALJ’s wording in the direct quote appears to incorrectly imply that plaintiff was required to use
her right side due to limitations with her left side, and that, by implication, her right side was the
stronger. Yet plaintiff actually experienced substantial difficulty with her right side, which is reflected
accurately in the ALJ’s opinion when read fully and in context.
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C.

Plaintiff’s Oral Testimony

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Plaintiff testified at her oral hearing that she could not work because of “really bad

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hot flashes” and “dizzy spells.” [AR 58]. She would easily become short of breath,

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requiring short and frequent breaks. [Id.]. When walking, she experienced fatigue and

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shortness of breath. [Id.]. Indeed, she stated that she could not walk more than two blocks

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without sitting down to catch her breath. [Id.]. Further, her chest pain was triggered by

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walking. [AR 63]. [Id.]. Standing up too quickly was also a problem, and she struggled to

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use a computer due to vision issues. [Id.; AR 68].

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Plaintiff testified she could perform simple household tasks and chores (e.g.,

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cooking a meal, errands for groceries, minor housecleaning), [AR 59]. She also explained

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that she was weaker on her right side, and thus could not carry common items in her right

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hand (e.g., her purse or groceries). [Id.]. Aside from the general weakness, plaintiff

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complained of particular difficulty and pain in her right hand ring finger. [AR 66]. Pain

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and numbness was a daily struggle, rendering her unable to carry items of roughly twenty

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pounds without both hands. [AR 60, 69]. She stated she was likely unable to carry that

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much weight for two cumulative hours a day in a typical forty hour work week. [AR 63].

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She also testified that she could not be on her feet for more than twenty minutes at a time,

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unless she was leaning on something [Id.]. Yet at other times in her testimony she indicated

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she stood for approximately two-thirds of the day on most days. [AR 61]. When pressed

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by the ALJ, plaintiff testified that she believed she would be unable to stand for six hours

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a day in an eight-hour workday, but that five and a half hours would be more realistic. [AR

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62].

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Finally plaintiff testified that she frequently went to the hospital due to anxiety

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attacks. [AR 64].

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THE ALJ’S FIVE-STEP DISABILITY ANALYSIS

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IV.

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To qualify for disability benefits under the SSA, an applicant must show that he or

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she is unable to engage in any substantial gainful activity because of a medically

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determinable physical or mental impairment that has lasted or can be expected to last at

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least twelve months. 42 U.S.C. § 423(d). The Social Security regulations establish a five-

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step sequential evaluation for determining whether an applicant is disabled under this

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standard. 20 C.F.R. § 404.1520(a); Batson v. Comm’r of the Social Security Admin., 359

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F.3d at 1193-94.

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At step one, the ALJ must determine whether the applicant is engaged in substantial

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gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). Here, the ALJ concluded plaintiff had not

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engaged in substantial gainful activity since July 22, 2015, the amended alleged onset date

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of plaintiff’s impairments. [AR 21].

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At step two, the ALJ must determine whether the applicant is suffering from a

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“severe” impairment within the meaning of Social Security regulations. 20 C.F.R.

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§ 404.1520(a)(4)(ii). “An impairment or combination of impairments is not severe if it does

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not significantly limit [the applicant’s] physical or mental ability to do basic work

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activities.” 20 C.F.R. § 404.1521(a). For example, a slight abnormality or combination of

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slight abnormalities that only have a minimal effect on the applicant’s ability to perform

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basic work activities will not be considered a “severe” impairment. Webb v. Barnhart, 433

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F.3d 683, 686 (9th Cir. 2005). Examples of basic work activities include walking, standing,

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sitting, lifting, pushing, pulling, reaching, carrying, handling, seeing, hearing, speaking,

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understanding, carrying out and remembering simple instructions, use of judgment,

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responding appropriately to supervision, co-workers and usual workers and usual work

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situations, and dealing with changes in routine work setting. 20 C.F.R. § 404.1521(b)(1)-

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(6). “If the ALJ finds that the claimant lacks a medically severe impairment, the ALJ must

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find the claimant not to be disabled.” Barnhart, 433 F.3d at 686.

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Here, at step two, the ALJ concluded that plaintiff has the following severe

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impairments: “history of breast cancer; metabolic syndrome with [coronary artery disease];
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overweight/obesity; atypical chest pain; uterine tumor; neuropathy; and degenerative joint

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disease.” [AR 21].

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If a claimant is deemed to have severe impairments, the ALJ then determines at step

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three whether any impairment equals, or rises to the level of, one of the “Listing of

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Impairments” in the Social Security regulations. 20 C.F.R. § 404.1520(a)(4)(iii). If so, he

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or she must be found disabled. [Id.]. Here, the ALJ found at step three that plaintiff’s

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impairment or combination of impairments did not meet or equal a listed impairment. [AR

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22]. This included those found under medical 1.02 (major dysfunction of a joint(s) due to

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any cause); 4.00 (cardiovascular system); 11.00 (neurological disorders); and 14.00

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(immune system disorders). [AR 22]. The ALJ based this determination on recorded

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findings of treating or examining physicians and the evidence of medical findings. [AR

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22].

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If an impairment does not meet or equal a “Listing of Impairments”, the ALJ must

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make a step four determination of the claimant’s residual functional capacity based on all

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impairments, including impairments that are not severe. 20 C.F.R. §§ 404.1520(e),

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404.1545(a)(2). “Residual functional capacity” (“RFC”) is “the most [an applicant] can

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still do despite [his or her] limitations. 20 C.F.R. § 404.1545(a)(1). The ALJ must

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determine whether the applicant retains the residual functional capacity to perform his or

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her past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv).

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If the applicant cannot perform past relevant work, the ALJ – at step five – must

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consider whether the applicant can perform any other work that exists in the national

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economy. 20 C.F.R. § 404.1520(a)(4)(v). While the applicant carries the burden of proving

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eligibility at steps one through four, the burden at step five rests on the Agency. Celaya v.

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Halter, 332 F.3d 1177, 1180 (9th Cir. 2003). The ALJ must consider all of plaintiff’s

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medically determinable impairments, including any pain that could “cause a limitation of

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function” and any impairments that are not “severe,” and then determine plaintiff’s residual

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functional capacity to perform work in the national economy. 20 C.F.R. §§ 404.1520;

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404.1545; 416.929. “In determining [the claimant’s] residual functional capacity, the ALJ
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must consider whether the aggregate of [the claimant’s] mental and physical impairments

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may so incapacitate him that he is unable to perform available work.” Light v. Soc. Sec.

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Admin., 119 F.3d 789, 793 (9th Cir. 1997), as amended on reh’g (Sept. 17, 1997). As noted

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above, “residual functional capacity” is “the most [an applicant] can still do despite [his or

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her] limitations.” 20 C.F.R. § 404.1545(a)(1).

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Considering the totality of plaintiff’s impairments, the ALJ concluded that plaintiff

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has the residual functional capacity to “perform light work as defined in 20 CFR

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416.967(b),” with six exceptions. [AR 23]. Plaintiff’s statements concerning “the intensity,

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persistence, and limiting effects of [her] symptoms,” the ALJ concluded, were “not entirely

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consistent with the medical evidence and other evidence in the record.” [AR 24]. The ALJ

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noted plaintiff participated in activities that undermined her allegations of disabling

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functional limitations. [AR 23-24]. Specifically, that “she was able to keep up with general

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cleaning at home; she could shop for necessities; she could sweep for about 15 to 20

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minutes; she could prepare simple meals like hamburger helper; and she was able to go to

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her sister’s house . . . .” [Id.].

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The ALJ gave great weight to the medical evidence in making his determination.

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[AR 24]. He also gave weight to the findings of the two agency reviewers, the two

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consultative examiners, and the medical expert. [AR 26].

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“significant light range of light residual functional capacity [was] supported by the

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testimony of claimant; the claimant’s disability reports; the third party function report; and

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the claimant’s treatment records” and that “the less than light limitation addresses the

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claimant’s impairments and subjective complaints.” [AR 27].

He concluded that the

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While plaintiff was unable to perform any past relevant work, “considering the

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claimant’s age, education, work experience, and residual functional capacity” the ALJ

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concluded that there existed jobs in significant numbers in the national economy that the

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plaintiff could perform. [AR 27-28]. Specifically, plaintiff could, according to the

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testimony of the vocational expert, “perform the requirements of representative light

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occupations such as sub-assembler,” with 26,000 positions in the national economy;
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“information clerk,” with 60,000 positions in the national economy; and “hand packager,”

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with 96,000 positions in the national economy. [AR 28]. From this testimony, the ALJ

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concluded, that plaintiff was “capable of making a successful adjustment to other work that

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exists in significant numbers in the national economy” and that a finding of “not disabled”

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was warranted under Section 1614(a)(3)(A) of the Social Security Act. [AR 28].

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Accordingly, plaintiff was denied benefits. [AR 28].

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V.

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As noted above, the final decision of the Commissioner must be affirmed if it is

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supported by substantial evidence and if the Commissioner has applied the correct legal

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standards. Batson v. Comm’r of the Social Security Admin., 359 F.3d 1190, 1193 (9th Cir.

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2004). The Commissioner’s findings are upheld if supported by inferences reasonably

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drawn from the record. Id. If there is evidence in the record to support more than one

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rational interpretation, the District Court must defer to the Commissioner’s decision. Id.

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Substantial evidence means “such relevant evidence as a reasonable mind might accept as

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adequate to support a conclusion.” Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir.

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2001). A court must weigh both the evidence that supports and detracts from the

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administrative ruling. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999).

DISCUSSION

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Plaintiff contends the ALJ erred by not properly considering plaintiff’s subjective

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testimony about “the intensity, persistence, and limiting effects of her symptoms ‘not

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entirely consistent with the medical evidence and other evidence’” in making his final

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determination. [Doc. No. 17, at p. 5] (quoting AR 24). Specifically, plaintiff asserts:

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1. The ALJ failed to cite either specific testimony or cite specific reasons for
discounting plaintiff’s testimony [Id., at p. 7];
2. The ALJ improperly relied on medical evidence in support of his findings [Id., at
p. 9];
3. The ALJ improperly considered plaintiff’s activities of daily living in discounting
her pain testimony [Id., at pp. 6-7]; and

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4. The ALJ improperly considered plaintiff’s failure to take a prescribed medication
[Doc. No. 19, at p. 3].

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Thus, according to plaintiff, “the final decision of the ALJ lacks the support of substantial

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evidence and rests on legal error.” [Doc. No. 17, at p. 10]. Therefore, she asserts that the

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ALJ’s decision should be reversed and remanded for payment of benefits, or, in the

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alternative, remanded to reconsider her subjective pain and symptom testimony. [Id.].

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The Commissioner argues that the ALJ properly considered plaintiff’s testimony,

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but that such testimony was not reliable because: (1) the objective medical evidence

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undermined her testimony; (2) plaintiff’s activities were inconsistent with disability; (3)

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there was evidence that plaintiff was not compliant with her treatment; and (4) plaintiff’s

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testimony conflicted with examining and reviewing physicians. [Doc. No. 15, at p. 3, 5-

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6]. Thus, the Commissioner asserts, the ALJ “provided numerous, valid reasons for

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discounting [p]laintiff’s subjective complaints,” and the decision is therefore supported by

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substantial evidence and without legal error. [Id., at p. 7].

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A. Whether the ALJ failed to cite specific reasons for discounting plaintiff’s
testimony

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Turning to plaintiff’s first argument, the Ninth Circuit sets out a two-step analysis

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for evaluating pain. Vasquez v. Astrue, 572 F.3d 586 (9th Cir. 2009). First, the claimant

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must provide objective medical evidence of an underlying impairment which could

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reasonably be expected to produce the pain. Id. at 591. The claimant need not show that

21

her impairment could be expected to cause the severity of the pain she claims, only that it

22

could cause some degree of pain. Id. Here, the ALJ found that the medical evidence

23

supported a finding of an underlying impairment that could be reasonably expected to cause

24

her alleged pain. [AR 24].

25

Once, as here, the first prong is met without evidence of malingering, the claimant’s

26

testimony regarding the degree of her pain may be rejected only for clear and convincing

27

reasons. Vasquez, 572 F.3d at 592. The ALJ must specify which testimony he finds not

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credible, and failure to do so is legal error. Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th

2

Cir. 2015).5

3

Here, the ALJ found no evidence of malingering in the record. Plaintiff’s testimony,

4

therefore, could only be properly rejected if there were explicitly stated clear and

5

convincing reasons for doing so. The relevant issues thus presented to the Court are (1)

6

whether the ALJ clearly identified the testimony he found not to be credible; and, (2)

7

whether the ALJ provided clear and convincing reasons for rejecting plaintiff’s subjective

8

pain testimony. Each issue, and the accompanying arguments, is addressed in Section 1

9

below.

10

In support of his decision, the ALJ rejected plaintiff’s testimony because “the

11

claimant’s statements concerning the intensity, persistence, and limiting effects of [her]

12

symptoms are not entirely consistent with the medical evidence and other evidence in the

13

record for the reasons explained in the decision.” [AR 24]. The ALJ also considered

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plaintiff’s testimony regarding her daily activities and her discontinuing use of Plavix in

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making his credibility determination. [AR 23-24; 26].

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17

As stated, supra, plaintiff argues that the ALJ failed to cite either specific testimony
or cite specific reasons for discounting plaintiff’s testimony.

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When rejecting pain and symptom testimony, an ALJ may not do so by making

19

general findings; rather, the ALJ must identify what testimony is not credible and what

20

evidence undermines the claimant’s complaints. Colvin, 806 F.3d at 493. Upon review, an

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ALJ’s decision cannot merely conclude the claimant was not credible and summarize the

22

medical evidence supporting his determination. Id. The specific reasons must be readily

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24
25
26
27
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5

The Commissioner disputes this standard of review. The Commissioner states that it is
inconsistent with the deferential substantial evidence standard set forth in 42 U.S.C. § 405(g), and with
agency regulations and rulings specifying the rationale its adjudicators should provide in support of their
findings. However, the Ninth Circuit has rejected this argument in Burrell v. Colvin, 775 F.3d 1133,
1136–37 (9th Cir. 2014) (holding that the “clear and convincing” requirement actually predated Burrell
and was not “excised” by it). Burrell therefore forecloses the Commissioner's argument.
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identifiable by a reviewing court to ensure that the claimant’s testimony was not arbitrarily

2

discredited. Id. The clear and convincing standard is “the most demanding required in

3

Social Security Cases.” Moore v. Commissioner of Social Sec. Admin., 278 F.3d 920, 924

4

(9th Cir. 2009). The ALJ’s findings must be sufficiently specific to allow a reviewing court

5

to conclude the adjudicator rejected the claimant’s testimony on permissible grounds and

6

did not “arbitrarily discredit a claimant’s testimony regarding pain.” Bunnell v. Sullivan,

7

947 F.2d 341, 345-46 (9th Cir. 1991). The ALJ met this burden.

8

The ALJ noted in his decision that, at the hearing, plaintiff “asserted that she became

9

fatigued with walking; she had really bad hot flashes and dizzy spells; she had exhaustion;

10

she had anxiety; and she had numbness and pain.” [AR 23]. In discounting the testimony,

11

the ALJ explained that “the claimant’s statements concerning the intensity, persistence,

12

and limiting effects of these symptoms are not entirely consistent with the medical evidence

13

and other evidence in the record for the reasons explained in the decision” [AR 24], and

14

“the consistency of the claimant’s allegations regarding the severity of her symptoms and

15

limitations is diminished because those allegations are greater than expected in light of the

16

objective evidence of record. The positive objective clinical and diagnostic findings since

17

the alleged onset date detailed above do not support more restrictive functional limitations

18

than those assessed herein.” [AR 26]. The ALJ then proceeded to provide a detailed, three-

19

page analysis of the medical evidence that undermined plaintiff’s specifically identified

20

pain and symptom testimony. [AR 24-27]. This included a detailed description of the

21

relevant chronological medical history, a review of the findings of state agency reviewers,

22

a review of two consultative examiners, and a careful parsing of the oral testimony

23

provided by a medical expert. [AR 26-27]. Based on these findings, the ALJ concluded

24

that the plaintiff’s testimony was not credible as it related to her subjective pain and

25

symptoms. [AR 24].

26

After identifying the specific evidence undermining plaintiff’s pain and symptom

27

testimony, the ALJ continued, “despite [plaintiff’s] allegations of disability, the claimant

28

acknowledged that she was able to keep up with general cleaning at home; she could shop
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for necessities; she could sweep for about 15 to 20 minutes; she could prepare simple meals

2

like hamburger helper; she was able to go to her sister’s house.” [AR 23-24].

3

Thus, as required, the ALJ specifically identified the statements he found not to be

4

credible and the evidence that undermined them. Colvin, 806 F.3d at 493. The ALJ’s

5

specificity and analysis is consonant with the clear and convincing standard. Thus, the

6

Court finds the ALJ met his burden.

7

B. Whether the ALJ improperly relied on medical evidence in support of his

8

findings.
The Court now turns to plaintiff’s second argument that the ALJ improperly relied

9
10

on medical evidence in support of his findings. 6

11

In relying on medical evidence, an ALJ does not provide specific, clear, and

12

convincing reasons for rejecting a claimant’s testimony by simply reciting the medical

13

evidence in support of his or her residual functional capacity determination. Brown-Hunter,

14

806 F.3d at 489. He must provide clear and convincing reasons, supported by the evidence

15

in the record, to reject a claimant’s testimony. Id. This standard is identical to that laid out

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19
20
21
22
23
24
25
26
27
28

6

Plaintiff also argues the ALJ improperly dismissed plaintiff's pain testimony and cites to Smolen v.
Chater, 80 F.3d 1273 (9th Cir. 1996) and Dodrill v. Shalala, 12 F.3d 915 (9th Cir. 1993) for support.
Nothing in the ALJ's opinion is inconsistent with the rulings in either case. In Smolen, the Ninth Circuit
explained that to satisfy requirements for presenting subjective symptom evidence, a claimant seeking
disability benefits must only produce objective medical evidence of impairment or impairments, and that
that impairment, or combination of impairments, could reasonably be expected to produce some degree
of the symptoms. Smolen, 80 F.3d at 1281. A claimant need not produce objective medical evidence of
pain or fatigue itself, or severity thereof, nor must a claimant produce objective medical evidence of a
causal relationship between a medically determinable impairment and symptom. Id. And in Dodrill, the
Ninth Circuit explained that ALJ must provide clear and convincing reasons for rejecting pain and
symptom testimony, absent evidence of malingering. Dodrill, 12 F.3d at 918. Further, the ALJ must state
which testimony is not credible and what evidence undermines it. Id. Here, the ALJ found that the medical
evidence supported a finding of an underlying impairment that could be reasonably expected to cause her
alleged symptoms. [AR 24]. This Court finds the ALJ did provide clear and convincing reasons for
discounting the testimony, and pinpointed which testimony he found not credible and what evidence
undermined it. Therefore plaintiff's argument is unavailing.
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in Section A(1), supra. The Court agrees with defendant that the ALJ properly relied on

2

the opinions of physicians and properly cited to objective medical evidence.

3

Here, the ALJ did not simply recite the medical evidence in rejecting plaintiff’s

4

testimony; rather, he compared the medical evidence with the testimony, and gave reasons

5

for rejecting the testimony in light of the inconsistent medical evidence. First, the ALJ

6

found that plaintiff’s subjective pain and symptom testimony was not credible because her

7

testimony was not consistent with the medical and other evidence in the record. [AR 24].

8

The ALJ then found, after identifying the medical evidence that was inconsistent with

9

plaintiff’s testimony, that plaintiff’s allegations of her symptoms were “greater than

10

expected in light of the objective evidence of record. The positive objective clinical and

11

diagnostic findings since the alleged onset date detailed above do not support more

12

restrictive functional limitations than those assessed herein.” [AR 26]. The Court finds the

13

ALJ provided clear and convincing reasons for relying on the medical evidence to discount

14

plaintiff’s testimony.

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16

C. Whether the ALJ improperly considered plaintiff’s activities of daily living in
discounting her pain testimony.

17

Plaintiff also asserts, in her third argument, that the ALJ improperly considered her

18

activities of daily living in discounting her pain testimony. In considering plaintiff’s daily

19

activity testimony, the Ninth Circuit has “repeatedly warned that ALJs must be especially

20

cautious in concluding that daily activities are inconsistent with testimony about pain,

21

because impairments that would unquestionably preclude work and all the pressures of a

22

workplace environment will often be consistent with doing more than merely resting in bed

23

all day.” Garrison v. Colvin, 759 F.3d 1016 (9th Cir. 2014). However:

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25
26
27
28

[w]hile a claimant need not ‘vegetate in a dark room’ in order to be eligible
for benefits, Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987) (quoting
Smith v. Califano, 637 F.2d 968, 971 (3d Cir. 1981)), the ALJ may discredit
a claimant's testimony when the claimant reports participation in everyday
activities indicating capacities that are transferable to a work setting, see
Morgan v. Comm'r Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999); Fair,
885 F.2d at 603. Even where those activities suggest some difficulty
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2
3
4
5
6

functioning, they may be grounds for discrediting the claimant's testimony to
the extent that they contradict claims of a totally debilitating impairment. See
Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1225 (9th Cir. 2010); Valentine
v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009).
Molina v. Astrue, 674 F.3d 1104, 1112–13 (9th Cir. 2012) (emphasis added). Here, the ALJ
specifically noted that plaintiff’s testimony regarding her daily activities was inconsistent
with disabling functional limitations, and thus contradicted her pain and symptom

7

testimony. [AR 23-24]. Further, the ALJ concluded that such everyday activities “were

8

the same as those needed to obtain and maintain employment.” [AR 24]. The Ninth Circuit

9

has provided that “[i]f, despite [her] claims of pain, a claimant is able to perform household

10
11
12

chores and other activities that involve many of the same physical tasks as a particular type
of job, it would not be farfetched for an ALJ to conclude that the claimant's pain does not
prevent the claimant from working.” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989); see

13

also Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (upholding ALJ’s negative

14

credibility determination where claimant’s testimony was at odds with her ability “to

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16
17
18
19

perform various household chores such as cooking, laundry, washing dishes, and
shopping”). The Court finds the ALJ was justified in considering plaintiff’s daily activity
in discounting her pain testimony.
D. Whether the ALJ erred in considering plaintiff’s failure to follow her
prescribed course of treatment

20

The Court addresses plaintiff’s fourth and final argument, namely that the ALJ

21

improperly considered plaintiff’s failure to take a prescribed medication. Failure to follow

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23
24

a prescribed course of treatment may support a finding that the subjective pain complaint
is unjustified or exaggerated. Chaudhry v. Astrue, 688 F.3d 661, 672 (9th Cir. 2012).
However, an ALJ may not rely on a failure to follow a prescribed course of treatment as a

25

basis to discount a claimant’s testimony if the claimant has a “good reason” for not doing

26

so. Fair, 885 F.2d at 603. Plaintiff argues “her noncompliance with Plavix following the

27

stent placement was due to Pena’s preoccupation and depression related to her breast

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cancer diagnosis . . .” and is, therefore, a “good reason” for discontinuing Plavix.7 [Doc.

2

No. 19, at p. 3]. The Court disagrees.
The Code of Federal Regulations provides an illustrative list of “good reasons” for

3
4

not following a prescribed course of treatment:

5

(c) Acceptable reasons for failure to follow prescribed treatment. We will
consider your physical, mental, educational, and linguistic limitations
(including any lack of facility with the English language) when determining if
you have an acceptable reason for failure to follow prescribed treatment. The
following are examples of a good reason for not following treatment:

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7
8
9

(1) The specific medical treatment is contrary to the established teaching
and tenets of your religion;

10
11

(2) The prescribed treatment would be cataract surgery for one eye,
when there is an impairment of the other eye resulting in a severe loss
of vision and is not subject to improvement through treatment;

12
13

(3) Surgery was previously performed with unsuccessful results and the
same surgery is again being recommended for the same impairment;

14
15

(4) The treatment because of its magnitude (e.g., open heart surgery),
unusual nature (e.g., organ transplant), or other reason is very risky for
you; or

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17
18

(5) The treatment involves amputation of an extremity, or a major part
of an extremity.

19
20
21

20 C.F.R. § 404.1530(c). See also Fair, 885 F.2d at 603 (“While there are any number of

22

good reasons for not doing so, see, e.g., 20 C.F.R. § 404.1530(c) . . . a claimant's failure

23

to assert one, or a finding by the ALJ that the proffered reason is not believable, can cast

24

doubt on the sincerity of the claimant's pain testimony”); Gallant v. Heckler, 753 F.2d

25
26
7

27
28

As indicated on page 5, supra, plaintiff also discontinued the use of Tamoxifen due to abnormal
uterine bleeding. However, neither plaintiff nor defendant brought up this point in their briefs, and the
ALJ did not indicate in his decision that he considered plaintiff’s discontinuance of Tamoxifen in
making his determination to deny benefits.
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1450, 1454 (9th Cir. 1984) (finding an ALJ improperly considered claimant’s failure to

2

take pain medication because claimant’s doctor recommended claimant cease taking it).

3

Here, the list of adequate reasons above does not suggest preoccupation with a

4

medical diagnosis is a reasonable basis for failure to follow prescribed treatment.

5

Moreover, plaintiff was neither advised to stop taking Plavix by her doctor at that time, nor

6

is it apparent from the record that she was motivated by physical or mental symptoms or

7

side effects caused by the drug. The Court therefore finds that plaintiff did not have a

8

sufficient basis for discontinuing Plavix, and the ALJ properly considered the

9

discontinuance in his disability determination.

10

In sum, for the reasons stated above, the ALJ properly found plaintiff's subjective

11

pain and symptom testimony less than fully credible because he provided specific, clear

12

and convincing reasons supported by substantial evidence in making his determination. 8
Accordingly, the Court RECOMMENDS that defendant’s motion be GRANTED

13
14

and plaintiff’s motion be DENIED.

15

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24

///

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26
8

27
28

Plaintiff places reliance on Social Security Ruling 16-3-p, which requires an ALJ to articulate specific
and legitimate reasons for rejecting pain and limitation testimony. As the ALJ provided clear and
convincing reasons for the rejection, the Court finds the ALJ satisfied this Ruling.
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2
3

CONCLUSION
Based on the foregoing, IT IS HEREBY RECOMMENDED THAT THE
DISTRICT COURT:

4

1. GRANT defendant’s Cross-Motion for Summary Judgment [Doc. No. 14].

5

2. DENY plaintiff’s Motion for Summary Judgment [Doc. No. 17].

6

This Report and Recommendation of the undersigned Magistrate Judge is submitted

7

to the United States District Judge assigned to this case, pursuant to the provisions of 28

8

U.S.C. § 636(b)(1) and Civil Local Rule 72.1(d). Within fourteen (14) days after being

9

served with a copy of this Report and Recommendation, “any party may serve and file

10

written objections.” 28 U.S.C. § 636(b)(1)(B)&(C). The document should be captioned

11

“Objections to Report and Recommendation.” The parties are advised that failure to file

12

objections within this specific time may waive the right to raise those objections on appeal

13

of the Court’s order. Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).

14
15

IT IS SO ORDERED.
Dated: July 30, 2018

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