Munguia Mendez v. Colvin

Filing 24

ORDER that the R&R (ECF No. 18 ) is accepted and adopted in full; Munguia Mendez's motion to remand (ECF No. 13 ) is denied; the Commissioner's cross-motion for summary judgment to affirm (ECF No. 16 ) is granted; Clerk directed to enter judgment and close this case. Signed by Judge Miranda M. Du on 10/17/2018. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JOSE MUNGUIA MENDEZ,

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Plaintiff,

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NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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ORDER

v.

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Case No. 3:16-cv-00510-MMD-CBC

I.

SUMMARY

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This is an appeal of a denial of benefits under the Social Security Act (“SSA”).

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Before the Court is the Report and Recommendation (“R&R”) of United States Magistrate

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Judge Valerie P. Cooke (ECF No. 18) regarding Plaintiff Jose Munguia Mendez’s

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(“Munguia Mendez”) Motion to Remand to Social Security Administration (“Motion to

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Remand”) (ECF No. 13) and Defendant Acting Commissioner Nancy A. Berryhill’s (“the

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Commissioner”) Cross-Motion for Summary Judgment to Affirm (“Cross-Motion”) (ECF

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No. 16). The Court has also reviewed Munguia Mendez’s objection to the R&R (ECF No.

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19). Further, the Court has reviewed the administrative record1 filed by the Commissioner.

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(ECF No. 11.)
For the following reasons, the Court accepts and adopts the R&R in full.

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II.

BACKGROUND

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Munguia Mendez filed for disability benefits, Disability Insurance Benefits, and

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Supplemental Security Income benefits under Titles II and XVI of the SSA, alleging a

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disability onset date of June 30, 2012. (ECF No. 13 at 3.) His primary allegedly disabling

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ease of reference, the Court will cite to the administrative record as “AR.”

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ailments are a prior hernia that was repaired with mesh in a surgery he underwent in

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November 2013, and several ailments related to former alcohol abuse: cirrhosis of the

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liver, ammonia-induced encephalopathy, and associated pain and swelling in his

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abdomen and lower extremities. (AR 38, 40.) Munguia Mendez’s application was denied

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on December 17, 2013, and then denied again upon reconsideration on March 31, 2014.

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(ECF No. 13 at 3.) The denial was affirmed by an Administrative Law Judge (“ALJ”) who

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held a hearing on Munguia Mendez’s claim on September 15, 2015. (Id.) Further review

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of the ALJ’s decision at the Social Security Administration was denied by the Appeals

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Council on June 26, 2016. (Id.) Munguia Mendez then sought review from this Court.

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The Magistrate Judge found that substantial evidence supported the ALJ’s residual

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functional capacity (“RFC”) assessment regarding Munguia Mendez’s English language

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skills, and provided specific, clear, and convincing reasons as to why Munguia Mendez’s

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testimony regarding his disability was not fully credible. (ECF No. 18 at 7-8, 8-10.)

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Accordingly, the Magistrate Judge recommends that Munguia Mendez’s Motion to

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Remand be denied and that Defendant’s Cross-Motion be granted. (Id. at 10.)

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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 provided a limited scope of judicial review of the Commissioner’s

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decision to deny benefits under the SSA. In reviewing findings of fact, the Court must

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determine whether the decision of the Commissioner is supported by substantial

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

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

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

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consider the entire record as a whole to determine whether substantial evidence exists,

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and it must consider evidence that both supports and undermines the ALJ’s decision. Id.

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at 523 (citation omitted). In weighing the evidence and making findings, the ALJ must also

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apply the proper legal standards. Id. (first citing Bray v. Comm’r of Soc. Sec. Admin., 554

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F.3d 1219, 1222 (9th Cir. 2009); and then citing Benton v. Barnhart, 331 F.3d 1030, 1035

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(9th Cir. 2003)).

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IV.

DISCUSSION

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The Court agrees with the Magistrate Judge’s recommendation to deny Munguia

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Mendez’s Motion to Remand and to grant the Commissioner’s Cross-Motion. The ALJ

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based denial of Munguia Mendez’s application for benefits on substantial evidence from

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the record and gave specific, clear, and convincing reasons for her finding that Mendez

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was not entirely credible.

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In Munguia Mendez’s objection to the R&R, he contends that the ALJ: (A) failed to

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properly assess Munguia Mendez’s English language capabilities; and (B) failed to

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properly assess Munguia Mendez’s credibility. (ECF No. 19 at 3.) With respect to the

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ALJ’s credibility finding, Munguia Mendez argues that certain reasons the ALJ provided

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to partially discount Munguia Mendez’s credibility were improper, specifically: (1) Munguia

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Mendez responded well to conservative treatment; (2) Munguia Mendez’s daily activities

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conflicted with his claim of disabling pain; and (3) Munguia Mendez’s claim of disabling

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pain was insufficiently supported by objective evidence. (Id. at 5-8.) Thus, Munguia

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Mendez argues the Court should reverse the ALJ’s decision and award him benefits, or,

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in the alternative, remand to the Commissioner for further proceedings. (Id. at 5, 6.) The

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Court disagrees.

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A.

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The ALJ implicitly found that Munguia Mendez was able to communicate at English

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language level one as defined in the Dictionary of Occupational Titles (“DOT”). (See AR

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at 44-45.) The ALJ’s finding as to Munguia Mendez’s language skills was implicit in her

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finding that Munguia Mendez retained the RFC to do the jobs garment sorter, marker II,

English Language Capabilities

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or laundry folder—all of which require level one English language skills. Munguia Mendez

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argues that this determination is not supported by substantial evidence because Munguia

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Mendez is only able to speak and understand English in a kitchen setting, though Munguia

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Mendez concedes that his English language skills were sufficiently developed for his past

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jobs as a cook (which required English language level two according to the DOT). (Id. at

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5.)

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The Court finds Munguia Mendez’s argument unpersuasive. The majority of

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Munguia Mendez’s prior jobs over the course of his career required language skills

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equivalent to English language level two, and Munguia Mendez conceded he could

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adequately communicate in English to perform those jobs. (ECF No. 16 at 8-9.) Munguia

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Mendez agreed he is able to read menus and work as a kitchen worker in English. (AR

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at 40.) Also, Munguia Mendez’s English language skills do not appear to be limited to the

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kitchen. Munguia Mendez responded in English to some questions posed to him by the

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ALJ at the hearing, stating both that he could understand what the ALJ was saying in

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English, and that he could speak enough English to shop in stores. (AR 67.) These facts

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constitute substantial evidence supporting the ALJ’s implicit determination that Munguia

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Mendez was able to communicate at English language level one.

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As additional evidence of his lack of language abilities, Munguia Mendez asserts

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that his hearing notice was delivered to him in Spanish and that he was provided an

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interpreter for the hearing. (ECF No. 13 at 6-7.) But Munguia Mendez was provided an

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interpreter and Spanish language hearing notice because he stated on his Disability

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Report that he could not speak English—not because anyone actually evaluated his

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language skills. (AR 298.) Indeed, Munguia Mendez stated at his hearing that he

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requested an interpreter be present because he was unsure he would be able to

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understand any legal terminology the ALJ or others might use, not because he was

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entirely unable to function in English. (AR 67.) In sum, the Court finds that substantial

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evidence supports the ALJ’s finding that Munguia Mendez’s English language skills are

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sufficient for him to find another job such as the jobs identified by the ALJ in her decision.

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ALJ’s Credibility Findings

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B.

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The ALJ found that Munguia Mendez’s ailments could cause pain, but disagreed

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with Munguia Mendez that they caused totally disabling pain—which depended on a

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finding that Munguia Mendez was not entirely credible. (AR at 40.) Under applicable law,

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adverse credibility findings may only be made through adherence to a two-step

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framework. See Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). Here, the

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ALJ properly moved through step one by determining that Munguia Mendez’s alleged

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impairments could cause symptoms such as those he alleges—and Munguia Mendez

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does not challenge that aspect of the ALJ’s analysis. Rather, Munguia Mendez’s objection

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regards step two of the analysis. At step two, “the ALJ can reject the claimant's testimony

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about the severity of her symptoms only by offering specific, clear and convincing reasons

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for doing so.” Id. at 1039 (citation omitted). “The ALJ may consider many factors in

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weighing a claimant’s credibility, including ‘(1) ordinary techniques of credibility

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evaluation, such as the claimant’s reputation for lying, prior inconsistent statements

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concerning the symptoms, and other testimony by the claimant that appears less than

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candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a

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prescribed course of treatment; and (3) the claimant’s daily activities.’” Id. (citations

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omitted). “If the ALJ's finding is supported by substantial evidence, the court ‘may not

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engage in second-guessing.”’ Id. (citation omitted); see also Magallanes v. Bowen, 881

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F.2d 747, 750 (9th Cir. 1989) (“[t]he ALJ is responsible for determining credibility . . . .”).

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The ALJ provided at least six reasons why Munguia Mendez’s claim of totally

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disabling pain was not entirely credible. Munguia Mendez challenges only three of those

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reasons in his objection to the R&R: conservative nature of treatment, activities of daily

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living, and lack of objective evidence.2 The Court addresses each of the three reasons

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Munguia Mendez objects to below.

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Mendez does not challenge the ALJ’s other three reasons, which were:
Munguia Mendez’s impairments were well-controlled with treatment; Munguia Mendez
declined to perform various tests, which is indicative of exaggeration or malingering; and
Munguia Mendez made inconsistent statements that undermined his credibility. (AR 3943.)
2Munguia

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Conservative Nature of Treatment

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Munguia Mendez first argues that the ALJ improperly discounted his subjective

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complaints because he responded well to conservative treatment. (ECF No. 19 at 5

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(“[R]eliance on Munguia Mendez’s treatment regimen does not constitute an adequately

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specific conflict with his reported limitations.”).) But “evidence of ‘conservative treatment’

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is sufficient to discount a claimant’s testimony regarding severity of an impairment,”

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Tommasetti, 533 F.3d at 1039 (quoting Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir.

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2007)), as Munguia Mendez concedes. (ECF No. 19 at 5-6.) The ALJ noted in her

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decision that Munguia Mendez’s doctors treated his liver disease with medication only—

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a more conservative treatment than surgery3—and that the treatment appeared to be

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effective. (AR 41-42.) This tends to show that conservative treatment was sufficient in

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treating Munguia Mendez’s impairments, which weighs against a finding of disability. See,

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e.g., Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995). As a result, the Court finds

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that the ALJ’s finding of successful conservative treatment constituted a specific, clear,

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and convincing reason for finding Munguia Mendez’s complaints regarding the disabling

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effects of his pain not fully credible.
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Activities of Daily Living

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Munguia Mendez further argues that the ALJ improperly discounted his subjective

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complaints based on daily activities that are incommensurate with a workplace

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environment. (ECF No. 19 at 6.) But the ALJ did draw a link between Munguia Mendez’s

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reported daily activities and job skills. She wrote: “Some of the physical and mental

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abilities and social interactions required to perform these activities are the same as those

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necessary for obtaining and maintaining employment. The claimant’s ability to participate

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in such activities undermined the credibility of the claimant’s allegations of disabling

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functional limitations.” (AR 41-42.) The ALJ drew a permissible inference. See Fair v.

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Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (“[I]f, despite his claims of pain, a claimant is

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able to perform household chores and other activities that involve many of the same

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the ALJ did not explicitly say this, Munguia Mendez did. (ECF No. 19 at 6.)
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physical tasks as a particular type of job, it would not be farfetched for an ALJ to conclude

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that the claimant's pain does not prevent the claimant from working.”).

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Further, the Court agrees with the ALJ that some of the skills and capabilities

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required to perform the daily activities Munguia Mendez admits he engages in are

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transferrable to the jobs of garment sorter, marker II, and laundry folder. All of these jobs

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involve folding and manipulating clothing, primarily in a seated position. Munguia Mendez

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admitted he does the laundry, which also involves folding and manipulating clothing. (AR

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41.) He also admitted he does other household chores, drives, and takes walks, which

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suggests he could get to and from one of these jobs. (Id.) And he watches television,

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which is typically done in a seated position. (Id.)

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Therefore, the Court finds the ALJ’s finding that Munguia Mendez’s reported daily

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activities conflicted with his testimony that his pain was totally disabling constituted a

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specific, clear and convincing reason to find Munguia Mendez’s complaints regarding the

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disabling effects of his pain not fully credible.

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3.

Lack of Objective Evidence

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Finally, Munguia Mendez argues that the ALJ improperly discounted Munguia

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Mendez’s testimony regarding his disabling pain because of a lack of objective medical

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evidence. (ECF No. 19 at 6.) Munguia Mendez argues a lack of objective evidence cannot

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stand alone to support the ALJ’s credibility determination. (Id.) But this reason cited by

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the ALJ to discount Munguia Mendez’s credibility does not stand alone. As discussed

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above, the ALJ gave various other reasons as to why Munguia Mendez’s subjective

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complaints of disabling pain were not corroborated by the record as a whole. Munguia

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Mendez did not even object to three of the reasons the ALJ provided for finding him less

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than credible. The Court therefore finds that the ALJ permissibly considered that the

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objective evidence did not support Munguia Mendez’s subjective complaints of disabling

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pain as one factor in finding Munguia Mendez less than fully credible. See, e.g., Burch v.

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Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (“Although lack of medical evidence cannot

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form the sole basis for discounting pain testimony, it is a factor that the ALJ can consider

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in his credibility analysis.”).

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V.

CONCLUSION

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

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

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determines that they do not warrant discussion as they do not affect the outcome of the

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Court’s decision on the R&R or the pending motions.

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

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Recommendation of Magistrate Judge Valerie P. Cooke (ECF No. 18) is accepted and

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adopted in full.
It is further ordered that Munguia Mendez’s motion to remand (ECF No. 13) is
denied.
It is further ordered that the Commissioner’s cross-motion for summary judgment
to affirm (ECF No. 16) is granted.
It is further ordered that the Clerk enter judgment accordingly and close this case.

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DATED THIS 17th day of October 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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