Ponce Conejo v. Colvin

Filing 29

ORDER accepting and adopting in full ECF No. 27 Report and Recommendation; denying Plaintiff's ECF No. 18 Motion to Remand; granting Defendant's ECF No. 21 Cross-Motion to Affirm; directing Clerk to enter judgment and close case. Signed by Judge Miranda M. Du on 11/29/2017. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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ZEIDY M. PONCE CONEJO,

Case No. 2:14-cv-01557-MMD-PAL

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Plaintiff,
v.

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NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

ORDER REGARDING REPORT AND
RECOMMENDATION OF
MAGISTRATE JUDGE
PEGGY A. LEEN

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Defendant.
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I.

SUMMARY

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Before the Court is the Report and Recommendation of United States Magistrate

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Judge Peggy A. Leen (ECF No. 27) (“R&R” or “Recommendation”) regarding Plaintiff

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Zeidy M. Ponce Conejo’s Motion for Reversal and/or Remand (“Motion to Remand”) (ECF

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No. 18) and Defendant Acting Commissioner’s Cross-Motion to Affirm (“Cross-Motion”)

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(ECF No. 21). The Court has reviewed Plaintiff’s objection to the R&R (ECF No. 28).

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Defendant did not file a response. The Court has also reviewed the administrative record1

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filed by Defendant (ECF Nos. 15, 17-1).2
For the following reasons, the Court finds good cause to accept and adopt the R&R

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in full.

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II.

BACKGROUND

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Plaintiff “protectively applied for a period of Title II disability and Disability Insurance

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Benefits” on December 30, 2010, “alleging that she had been disabled and unable to work

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ease of reference, the Court will cite to the administrative record as AR.
2Defendant filed both a physical copy of the administrative record (ECF No. 15) and
an electronic copy (ECF No. 17-1).

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since July 20, 2010.” (AR 10.) Plaintiff stated in her application that the following conditions

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limited her ability to work: cervical fusion, titanium disc in neck, pain in left arm, constant

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pain in spine, and depression. (AR 168.)

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Plaintiff’s application was initially denied in a letter dated October 17, 2011 (AR 86),

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and again on reconsideration in a letter dated May 25, 2012 (AR 95). An administrative

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law judge (“ALJ”) held a hearing on May 9, 2013 (AR 40) and subsequently found that

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Plaintiff was not disabled in a decision dated June 12, 2013. (AR 7-33.) The Appeals

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Council denied review on August 5, 2014. (AR 1-4.)

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In denying Plaintiff’s application, the ALJ applied the five-step disability evaluation

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process set forth in 20 C.F.R. § 404.1520. See Lester v. Chater, 81 F.3d 821, 828 n.5 (9th

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Cir. 1995) (describing the five-step process). The ALJ found that Plaintiff passed the

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hurdles set at steps one and two of the five-step process because she was not engaging

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in substantial gainful activity and she suffered from a number of severe impairments,

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including degenerative disc disease of the cervical and lumbar spine, seizure disorder,

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and adjustment disorder with mixed features. (AR 12.) The ALJ also found, however, that

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Plaintiff was not automatically presumed disabled at step three because her condition did

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not meet or equal any of the impairments listed in 20 C.F.R., Pt. 4, Subpt. P, App. 1. (Id.)

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The ALJ’s decision that Plaintiff was not disabled therefore turned on his assessment (in

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between steps three and four) of Plaintiff’s residual functional capacity (“RFC”) and

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application of this RFC assessment at steps four and five. See 20 C.F.R. § 404.1520(a)(4)

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(“Before we go from step three to step four, we assess your residual functional

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capacity. . . . We use this residual functional capacity assessment at both step four and

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step five when we evaluate your claim at these steps.”).

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In assessing Plaintiff’s RFC, the ALJ found that Plaintiff could perform sedentary

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work as defined in 20 C.F.R. § 404.1567(a): “She could lift and carry no more than five

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pounds, frequently, and ten pounds, occasionally. She could sit for six hours, cumulatively,

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in an eight-hour workday. She could stand and/or walk for two hours, cumulatively, in an

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eight-hour workday.” (AR 14-15.) While Plaintiff testified to additional limitations that would
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establish a lower RFC, the ALJ rejected this testimony as only “partially credible.” (AR 15.)

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The ALJ provided a host of reasons for discounting Plaintiff’s credibility: her testimony was

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internally inconsistent (see AR 15, 20, 21); objective medical evidence did not corroborate

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the severity of her symptoms (AR 15, 22, 24); pending personal injury lawsuits (and

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potential awards of monetary damages) served as an incentive to avoid seeking work (AR

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30); and her testimony was inconsistent with her conduct (AR 20, 22, 30), the notes of her

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treating physicians (AR 15, 23, 24), and her activities of daily living (AR 15-17).

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The Magistrate Judge found “that the ALJ’s decision is supported by substantial

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evidence under 42 U.S.C. § 405(g).” (ECF No. 27 at 37.) Accordingly, the Magistrate

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Judge recommends that Plaintiff’s Motion to Remand be denied and that the

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Commissioner’s Cross-Motion be granted. (Id.)

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III.

LEGAL STANDARD

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This Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). Where a

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party timely objects to a magistrate judge’s report and recommendation, then the court is

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required to “make a de novo determination of those portions of the [report and

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recommendation] to which objection is made.” Id.

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Congress has limited the scope of judicial review of the Commissioner’s decisions

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to deny benefits under the Social Security Act. In reviewing findings of fact, the Court must

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determine whether the decision of the Commissioner is supported by substantial evidence.

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42 U.S.C. § 405(g). “Substantial evidence is more than a mere scintilla but less than a

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preponderance; it is such relevant evidence as a reasonable mind might accept as

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adequate to support a conclusion.” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 522-

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the entire record as a whole to determine whether substantial evidence exists, and it must

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consider evidence that both supports and undermines the ALJ’s decision. Id. at 523

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(citation omitted). “If the ALJ’s finding is supported by substantial evidence, the court may

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not engage in second-guessing.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir.
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2008). In weighing the evidence and making findings, the Commissioner must also apply

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the proper legal standards. Id. (citations omitted). Courts “may not reverse an ALJ’s

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decision on account of an error that is harmless.” Molina v. Astrue, 674 F.3d 1104, 1111

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(9th Cir. 2012).

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Additional rules govern credibility findings regarding claimants’ pain and symptom

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testimony. “The ALJ must make two findings before the ALJ can find a claimant’s pain or

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symptom testimony not credible.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090,

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1102 (9th Cir. 2014) (citing 42 U.S.C. § 423(d)(5)(A)). “First, the ALJ must determine

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whether the claimant has presented objective medical evidence of an underlying

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impairment which could reasonably be expected to produce the pain or other symptoms

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alleged.” Id. (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)). “Second,

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if the claimant has produced that evidence, and the ALJ has not determined that the

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claimant is malingering, the ALJ must provide ‘specific, clear and convincing reasons for’

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rejecting the claimant’s testimony regarding the severity of the claimant’s symptoms.” Id.

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(citing Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.1996)). “This is not an easy

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requirement to meet: ‘The clear and convincing standard is the most demanding required

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in Social Security cases.’” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting

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Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)).

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IV.

DISCUSSION

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Plaintiff objects to the ALJ’s determination that she was only partially credible. (See

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ECF No. 28 at 4-5.) The parties dispute only the second stage of the credibility analysis—

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whether the ALJ provided specific, clear, and convincing reasons supported by substantial

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evidence for rejecting Plaintiff’s subjective testimony. The Court finds that, on the whole,

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the ALJ satisfied this standard, even though some of the reasons he provided were

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inadequate.
Plaintiff’s First Objection

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A.

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Plaintiff’s first objection is that the ALJ erred by discounting her credibility on the

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basis of her ability to engage in activities of daily living. (ECF No. 28 at 4.) The ALJ
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discounted Plaintiff’s credibility based in part on his finding that Plaintiff “was functionally

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able to shop, go out to eat, talk on the telephone, watch television, take care of pets and

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her teenage son, do some household chores, prepare[] daily meals, and the like.” (AR 16-

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17.)

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The Magistrate Judge found that Plaintiff’s activities of daily living “undermined her

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claims that she was incapable of doing sedentary unskilled work because of her pain.”

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(ECF No. 27 at 32.) Upon further examination of the record, the Court finds that Plaintiff’s

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activities of daily living are limited such that they in fact support her subjective pain

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testimony.

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1.

Grocery Shopping

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The first activity of daily living the ALJ cited was grocery shopping (AR 16-17), but

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the ALJ omitted critical details about how Plaintiff grocery shops. She requires assistance

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from her neighbor and son to get to the grocery store and to carry anything other than

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“small stuff.” (AR 187, 235.) She also rests on the cart while shopping. (AR 189.) This

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limited ability to grocery shop does not constitute a clear and convincing reason for

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discounting her testimony.

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2.

Going Out to Eat

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The next activity of daily living the ALJ cited was going out to eat (AR 16-17), but it

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is unclear how frequently Plaintiff is able to go out to eat. A third party function report

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completed by a friend stated only that goes to “lunch when [a] friend takes her out.” (AR

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180.) The third party function report does not expressly indicate frequency, though it is

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possible that Plaintiff goes to lunch with a friend as infrequently as once every three

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months. (See id.) This does not constitute a clear and convincing reason for discounting

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Plaintiff’s testimony.

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3.

Telephone

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The third activity the ALJ cited was talking on the telephone. (AR 16-17.) The record

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does not indicate that Plaintiff talks on the telephone while seated, which would be

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consistent with sedentary work. Plaintiff might use the telephone while lying down,
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standing, reclining, or while changing positions. The record also does not indicate the

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duration of Plaintiff’s telephone calls. Plaintiff’s use of the telephone is not a clear and

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convincing reason for discounting her testimony.
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Television

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The fourth activity the ALJ cited was watching television. (AR 16-17.) The Ninth

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Circuit Court of Appeals has consistently held that simply watching television, without

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additional information about how the person watches television (e.g., seated, reclining, or

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lying down), does not constitute a clear and convincing reason for discounting symptom

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testimony. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004);

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see also Popa v. Berryhill, 872 F.3d 901, 906 (9th Cir. 2017).
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Pet Care

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The fifth activity the ALJ cited was pet care. (AR 16-17.) The record indicates that

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Plaintiff does little more than occasionally feed her dog. The more strenuous activities of

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walking and bathing the dog fall to her son. (AR 185, 204.) This does not constitute a clear

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and convincing reason for discounting Plaintiff’s testimony.
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Childcare

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The sixth activity the ALJ cited was childcare. (AR 16-17.) Based on the record,

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Plaintiff’s children take care of her, not the other way around. Her children drive her places

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(AR 184, 187); help her to get dressed (AR 204); buy groceries (AR 235); walk, bathe, and

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occasionally feed the dog (AR 185, 204); cook (AR 186); vacuum (id.); do “heavy duty jobs

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around the house” (id.); assist her with laundry (id.); and clean (AR 178). Plaintiff alleges

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that she takes care of her children by “providing for them” (presumably financially) and by

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reminding them to do their school work—“the rest, they do them[selves].” (AR 185.) These

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childcare activities do not clearly and convincingly demonstrate that her testimony is not

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credible.

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7.

Household Chores

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The seventh activity the ALJ cited was household chores. (AR 16-17.) In a third

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party function report, a friend wrote that Plaintiff does laundry and light cleaning. (AR 178.)
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The friend also noted that Plaintiff’s son helps with “house chores she can’t do (mop floors,

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vac[uum]).” (Id.) Plaintiff elaborated on her ability to do laundry in her function report: “I do

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need help from my boys to pick up the clothes bas[k]ets from the floor, and take the clothes

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out [of] the w[]asher into the dryer and [room].” (AR 186.) The Court does not find that

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Plaintiff’s ability to do light housework and to do laundry with substantial assistance

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constitutes a clear and convincing reason supported by substantial evidence for

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discounting her testimony.
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Daily Meal Preparation

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The eighth activity the ALJ cited was daily meal preparation. (AR 16-17.) Plaintiff

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indicated that her children help her to cook and that she only cooks small meals such as

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“piece[s] of fish, eggs, [and] sandwi[ches].” (AR 186.) This minimal food preparation work

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does not constitute a clear and convincing reason for discounting Plaintiff’s subjective

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symptom testimony.

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In sum, the Court agrees with Plaintiff that her daily living activities do not amount

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to clear and convincing reasons for discounting her testimony. However, the ALJ’s error

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is harmless because the ALJ offered other specific, clear, and convincing reasons

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supported by substantial evidence for discounting Plaintiff’s subjective testimony.
Plaintiff’s Second Objection

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B.

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Plaintiff contends that the ALJ further erred by discounting her credibility on the

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basis of medical opinions and testimony that contradicted her own testimony. (ECF No.

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28 at 5.) Plaintiff contends that an ALJ, in finding a claimant not credible, only can rely on

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“reasons unrelated to the subjective testimony (e.g., reputation for dishonesty), internal

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contradictions in the testimony, or conflicts between the claimant’s testimony and the

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claimant’s conduct (e.g., daily activities, work record, unexplained or inadequately

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explained failure to seek treatment or to follow prescribed course of treatment.” (ECF No.

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28 at 5 (citing Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007).)

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Plaintiff mischaracterizes the relevant law. The ALJ may consider contradictions

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between a claimant’s testimony and medical sources in assessing the severity of the
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claimant’s symptoms. See Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); SSR 16-

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3p, 82 Fed. Reg. 49,462, 49,465 (Oct. 25, 2017). Accordingly, the ALJ properly considered

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the following inconsistencies between Plaintiff’s testimony and medical sources: Plaintiff

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was prescribed fewer medications than what she reported in a filing with the Social

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Security Administration (AR 15 (citing AR 233)); the record reflected that Plaintiff’s

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medication regimen was quite helpful and controlled her spinal pain (AR 15); and Plaintiff

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expressed satisfaction with her third cervical surgery, contrary to her allegations of total

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disability (AR 21).

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Even setting aside inconsistencies between Plaintiff’s testimony and medical

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sources, the ALJ provided other clear and convincing reasons supported by substantial

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evidence for discounting Plaintiff’s credibility. For example, Plaintiff did not seek or receive

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treatment for her alleged head and spinal injuries on the day of the car accident giving rise

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to her alleged disability, and Plaintiff’s pending personal injury lawsuits served as an

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incentive to exaggerate her symptoms in order to avoid work and maximize the potential

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award of monetary damages. (AR 30.)

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The ALJ provided numerous specific, clear, and convincing reasons supported by

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substantial evidence for discounting Plaintiff’s testimony. Although the ALJ considered

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some reasons that were not clear and convincing, this constitutes harmless error given

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the ALJ’s additional reliance on reasons that satisfied the clear-and-convincing standard.

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V.

CONCLUSION

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The Court notes that the parties made several arguments and cited to several cases

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not discussed above. The Court has reviewed these arguments and cases and determines

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that they do not warrant discussion as they do not affect the outcome of the motions before

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the Court.

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It is therefore ordered, adjudged, and decreed that the Report and

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Recommendation of Magistrate Judge Peggy A. Leen (ECF No. 27) is accepted and

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adopted in full.

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It is further ordered that Plaintiff’s Motion to Remand (ECF No. 18) is denied.

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It is further ordered that Defendant’s Cross-Motion to Affirm (ECF No. 21) is

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granted.

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The Clerk is directed to enter judgment and close this case.

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DATED THIS 29th day of November 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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