Steele v. Berryhill

Filing 21

REPORT AND RECOMMENDATION re 17 MOTION for Summary Judgment filed by Jo Ann Steele, 18 Cross MOTION for Summary Judgment filed by Nancy A. Berryhill. Any party having objections to the Court's proposed findings and reco mmendations shall serve and file specific written objections within 14 days after being served with a copy of this Report and Recommendation. A party may respond to the other party's objections within 14 days after being served with a copy of the objections. Signed by Magistrate Judge Robert N. Block on 6/5/2018.(jdt)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

Case No.: 3:17-cv-01923-LAB (RNB)

JO ANN STEELE,
Plaintiff,

12
13

v.

14

REPORT AND
RECOMMENDATION REGARDING
CROSS-MOTIONS FOR SUMMARY
JUDGMENT

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

15
16

Defendant.

(ECF Nos. 17, 18)

17
18

This Report and Recommendation is submitted to the Honorable Larry A. Burns,

19

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

20

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

21

On September 21, 2017, plaintiff Jo Ann Steele filed a Complaint pursuant to 42

22

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

23

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

24

and for child’s insurance benefits. (ECF No. 1.)

25

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

26

for summary judgment. For the reasons set forth herein, the Court RECOMMENDS that

27

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

28
1
17-cv-01923-LAB (RNB)

1

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

2

decision of the Commissioner and dismissing this action with prejudice.

3
4

PROCEDURAL BACKGROUND

5

On December 26, 2013, plaintiff filed applications for a period of disability and

6

disability insurance benefits and for child’s insurance benefits under Title II of the Social

7

Security Act, alleging disability beginning on July 9, 2009. (Certified Administrative

8

Record [“AR”] 150-58.)

9

reconsideration (AR 99-102, 109-13), plaintiff requested an administrative hearing before

10

an administrative law judge (“ALJ”). (AR 114.) Although informed of her right to

11

representation, plaintiff chose to appear and testify without the assistance of an attorney or

12

other representative at an administrative hearing held on March 3, 2016. Testimony also

13

was taken from a vocational expert (“VE”). (AR 27-46.)

After her applications were denied initially and upon

14

As reflected in his May 10, 2016 hearing decision, the ALJ concluded that plaintiff

15

had not been under a disability within the meaning of the Social Security Act prior to

16

attaining age 22 (for purposes of her application for child’s insurance benefits), and through

17

the date of his decision (for purposes of her application for a period of disability and

18

disability insurance benefits). (AR 14-21.) The ALJ’s decision became final on July 26,

19

2017, when the Appeals Council denied plaintiff’s request for review. (AR 1-5.) This

20

timely civil action followed.

21
22

SUMMARY OF THE ALJ’S FINDINGS

23

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

24

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

25

plaintiff had not engaged in substantial gainful activity since June 9, 2009, her alleged onset

26

date. (AR 16.) The ALJ noted, however, that plaintiff had worked in a part-time capacity

27

as a tax preparer at wage levels just under substantial gainful activity 20 hours/week

28

throughout the entire period at issue. (Id.)
2
17-cv-01923-LAB (RNB)

1

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

2

the alleged onset date: low back pain/abdominal pain of an unknown etiology, obesity,

3

chronic kidney disease/mild nephrotic syndrome, and headaches of an unknown etiology.

4

(AR 17.)

5

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

6

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

7

Commissioner’s Listing of Impairments. (AR 17.)

8

Next, the ALJ determined that plaintiff had the residual functional capacity (“RFC”)

9

to perform light work as defined in 20 C.F.R. § 404.1567(b) with occasional postural

10
11
12
13

movements. (AR 17.)
At step four, the ALJ determined that plaintiff was not able to perform her past
relevant work as a tax preparer. (AR 19.)
For purposes of his step five determination, the ALJ found that plaintiff’s limitations

14

had little to no effect on the occupational base of unskilled light work.

15

Accordingly, using the Commissioner’s Medical-Vocational Guidelines as a framework

16

for his decision-making, the ALJ determined that plaintiff remained capable of performing

17

unskilled sedentary and light occupations that existed in significant numbers in the national

18

economy. (Id.) The ALJ therefore found that plaintiff was not disabled. (AR 20-21.)

(AR 20.)

19
20

SOLE ISSUE IN DISPUTE

21

The sole issue in dispute in this case is whether, in determining plaintiff’s RFC, the

22

ALJ made a proper adverse credibility determination with respect to plaintiff’s subjective

23

pain testimony.

24
25

STANDARD OF REVIEW

26

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

27

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

28

whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846
3
17-cv-01923-LAB (RNB)

1

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

2

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

3

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

4

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

5

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

6

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

7

30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation,

8

the Commissioner’s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452

9

(9th Cir. 1984).

10
11

DISCUSSION

12

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

13

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

14

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

15

produced objective medical evidence of an impairment which could reasonably be

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

identify must identify what testimony is not credible and what evidence undermines the

24

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

25

quotation marks and citations omitted).

26

As a preliminary matter, the Court notes that, while the ALJ acknowledged that the

27

consideration of a claimant’s symptoms involves a two-step process and recited the two

28

steps (see AR 18), he never actually made an explicit finding with respect to what he
4
17-cv-01923-LAB (RNB)

1

described as step one (i.e., “whether there is an underlying medically determinable physical

2

or mental impairment(s). . . that could reasonably be expected to produce the claimant’s

3

pain or other symptoms”). However, plaintiff has not specifically raised this error by the

4

ALJ, which may have just been an oversight, but rather is challenging the sufficiency of

5

the reasons specified by the ALJ in support of his adverse credibility determination. (See

6

ECF No. 17-1 at 4-10.) Since, as discussed hereafter, the Court disagrees with plaintiff

7

that the reasons cited by the ALJ in support of his adverse credibility determination are

8

“woefully insufficient,” the Court will deem the ALJ’s technical step one error harmless.

9

See Stout v. Commissioner of Social Security, 454 F.3d 1050, 1055 (9th Cir. 2006) (an

10

ALJ’s error is harmless when the error is inconsequential to the ultimate non-disability

11

determination); Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir.1991) (harmless error rules

12

applies to review of administrative decisions regarding disability).

13

One of the reasons cited by the ALJ in support of his adverse credibility

14

determination was that plaintiff’s reported daily activities including part-time work activity

15

and schooling throughout the period at issue rendered her allegations of disabling

16

symptoms and limitations not fully consistent with the record. (See AR 19.)

17

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

18

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

19

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

20

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

21

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

22

part-time as a tax preparer for 20 hours per week while she was a college student actually

23

implicated both grounds. The Court therefore finds that this reason constituted a legally

24

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

25

determination. See Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (“Even where

26

those activities suggest some difficulty functioning, they may be grounds for discrediting

27

the claimant’s testimony to the extent that they contradict claims of a totally debilitating

28

impairment.”); Berry v. Astrue, 622 F.3d 1228, 1234-35 (9th Cir. 2010) (evidence that
5
17-cv-01923-LAB (RNB)

1

claimant’s self-reported activities suggested a higher degree of functionality than reflected

2

in subjective symptom testimony adequately supported adverse credibility determination);

3

Valentine v. Commissioner Social Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009) (evidence

4

that claimant exercised and undertook projects suggested that claimant’s later claims about

5

the severity of his limitations were exaggerated); Bray v. Commissioner of Social Security

6

Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (“In reaching a credibility determination, an

7

ALJ may weigh consistencies between the claimant’s testimony and his or her conduct,

8

daily activities, and work record, among other factors.”).

9

Moreover, the Court concurs with the Commissioner that the part time nature of

10

plaintiff’s employment appears largely due to the fact that she was a college student for the

11

majority of this period. Plaintiff testified that she had been in college since 2012 and

12

remained there until a couple of weeks prior to the administrative hearing (i.e., for more

13

than six years after she allegedly became disabled). (See AR 31). Plaintiff’s levels of

14

employment and education were entirely contrary to a claim of disability. See Matthews v.

15

Shalala, 10 F.3d 678, 679-80 (9th Cir. 1993) (ALJ provided “specific findings” for

16

rejecting “claimant’s subjective allegation of pain” when he noted that she was attending

17

school three days a week, “an activity which is inconsistent with an alleged inability to

18

perform all work”).

19

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

20

was that “the severity of pain alleged from [plaintiff] is disproportionate to the objective

21

evidence.” (AR 19.) The ALJ specifically noted in this regard that “[t]he examinations of

22

record within the period at issue revealed no significant findings related to neurological

23

involvement, muscle wasting, or muscle atrophy normally associated with pain and

24

inactivity” and that “the objective records consistently noted a steady/normal gait with no

25

secondary issues supportive of functional limitations beyond a wide range of light work

26

due to the combined effects of mild chronic kidney disease, obesity, and intermittent

27

complaints of headaches, abdominal pain, and low back pain of unknown etiologies.” (See

28

id.)
6
17-cv-01923-LAB (RNB)

1

Plaintiff does not dispute that her subjective pain testimony was not supported by

2

the objective medical evidence of record, but rather contends that this second reason was

3

legally insufficient because an adverse credibility determination may not be based on the

4

alleged lack of support in the objective medical evidence. (See ECF No. 17-1 at 5-6.) Here,

5

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

6

credibility determination, but just one of the reasons. See Burch v. Barnhart, 400 F.3d 676,

7

681 (9th Cir. 2005) (“Although lack of medical evidence cannot form the sole basis for

8

discounting pain testimony, it is a factor that the ALJ can consider in his credibility

9

analysis.”).

10

The Court therefore finds that the ALJ’s second stated reason also constituted a

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

objective evidence to support claimant’s subjective complaints).

22
23
24

CONCLUSION AND RECOMMENDATION

25

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

26

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

27

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

28

Commissioner and dismissing this action with prejudice.
7
17-cv-01923-LAB (RNB)

1

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

2

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

3

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

4

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

5

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

6

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

7

IT IS SO ORDERED.

8
9
10
11

Dated: June 5, 2018
_________________________
ROBERT N. BLOCK
United States Magistrate Judge

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
8
17-cv-01923-LAB (RNB)