Garcia v. Colvin

Filing 14

ORDER re 1 Complaint filed by Victoria Lynn Garcia by Judge J Richard Creatura. This matter is affirmed pursuant to sentence four of 42 U.S.C. § 405(g). (SH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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VICTORIA LYNN GARCIA,

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Plaintiff,

CASE NO. 14-cv-05573 JRC
ORDER ON PLAINTIFF’S
COMPLAINT

v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,

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Defendant.
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This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and

18 Local Magistrate Judge Rule MJR 13 (see also Notice of Initial Assignment to a U.S.
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Magistrate Judge and Consent Form, Dkt. 3; Consent to Proceed Before a United States
Magistrate Judge, Dkt. 4). This matter has been fully briefed (see Dkt. 11, 12, 13).

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After considering and reviewing the record, the Court concludes that the ALJ did
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not commit harmful error when evaluating plaintiff’s credibility, as he noted, among
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other things, that plaintiff’s testimony was inconsistent with her reports of
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ORDER ON PLAINTIFF’S COMPLAINT - 1

1 contemporaneous functioning and other aspects of the treatment record. Although the
2 ALJ’s reliance on plaintiff’s activities of daily living was not proper, the error is harmless
3 as the ALJ offered other reasons for his failure to credit fully plaintiff’s allegations and
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testimony that are clear and convincing and supported by substantial evidence in the
record.

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Therefore, this matter is affirmed pursuant to sentence four of 42 U.S.C. § 405(g).
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BACKGROUND
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Plaintiff, VICTORIA LYNN GARCIA, was born in 1957 and was 52 years old on
the alleged date of disability onset of October 5, 2009 (see AR. 144-47). Plaintiff

11 completed her high school education and attended a voc-tech for medical administration
12 (AR. 32). She has work experience as a customer service representative in healthcare
13 insurance financial industries (AR. 31-32).
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According to the ALJ, plaintiff has at least the severe impairments of “bilateral

15 knee osteoarthritis requiring bilateral replacement, and obesity (20 CFR 404.1520(c))”
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At the time of the hearing, plaintiff was living alone in a duplex (AR. 29).
PROCEDURAL HISTORY

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Plaintiff’s application for disability insurance (“DIB”) benefits pursuant to 42
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U.S.C. § 423 (Title II) of the Social Security Act was denied initially and following
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reconsideration (see AR. 55-61, 63-70). Plaintiff’s requested hearings were held before
Administrative Law Judge Robert P. Kingsley (“the ALJ”) on October 16, 2012 and

24 February 13, 2013 (see AR. 25-46, 47-53). On March 13, 2013, the ALJ issued a written

ORDER ON PLAINTIFF’S COMPLAINT - 2

1 decision in which the ALJ concluded that plaintiff was not disabled pursuant to the Social
2 Security Act (see AR. 7-24).
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In plaintiff’s Opening Brief, plaintiff raises the following issues: (1) Whether or
not the ALJ erred in adversely assessing plaintiff’s credibility; and (2) Whether or not the
ALJ’s errors were harmless (see Dkt. 11, p. 1).

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STANDARD OF REVIEW
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Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's
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denial of social security benefits if the ALJ's findings are based on legal error or not
supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d

11 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir.
12 1999)).

DISCUSSION

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(1)

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Plaintiff contends that the ALJ did not provide clear and convincing reasons for

Did the ALJ err in adversely assessing plaintiff’s credibility?

16 failing to credit fully plaintiff’s allegations and testimony, as required by Ninth Circuit
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case law. If an ALJ rejects the testimony of a claimant once an underlying impairment
has been established, the ALJ must support the rejection “by offering specific, clear and

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convincing reasons for doing so.” Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996)
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(citing Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir.1993)); see also Reddick v. Chater,
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157 F.3d 715, 722 (9th Cir. 1998) (citing Bunnell v. Sullivan, 947 F.2d 341, 343, 346-47
(9th Cir. 1991) (en banc)). The Court notes that this “specific, clear and convincing”

24 standard recently was reaffirmed by the Ninth Circuit:

ORDER ON PLAINTIFF’S COMPLAINT - 3

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Indeed, the cases following Bunnell read it as supplementing the “clear
and convincing” standard with the requirement that the reasons also must
be “specific.” (internal citation to Johnson v. Shalala, 60 F.3d 1428,
1433 (9th Cir. 1995)). Our more recent cases have combined the two
standards into the now-familiar phrase that an ALJ must provide
specific, clear, and convincing reasons. (internal citation to Molina v.
Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012)). There is no conflict in the
caselaw, and we reject the government’s argument that Bunnell excised
the “clear and convincing” requirement. We therefore review the ALJ’s
discrediting of Claimant’s testimony for specific, clear, and convincing
reasons.

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8 Burrell v. Colvin, 2014 U.S. App. LEXIS 24654 at *6-*7, Docket No. 12-16673 at p. 10
9 (pdf version, available at http://cdn.ca9.uscourts.gov/datastore/opinions/2014/12/31/1210
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16673.pdf) (9th Cir. December 31, 2014); see also Garrison v. Colvin, 759 F.3d 995,
1015 n.18 (9th Cir. 2014) (“The government’s suggestion that we should apply a lesser
standard than ‘clear and convincing’ lacks any support in precedent and must be

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rejected”). As with all of the findings by the ALJ, the specific, clear and convincing
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reasons also must be supported by substantial evidence in the record as a whole. 42
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U.S.C. § 405(g); see also Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005)
(citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)).
For the reasons stated below, the Court agrees with plaintiff with respect to one of

19 the reasons provided by the ALJ, i.e., plaintiff’s activities of daily living regarding
20 driving, light housework and caring for her granddaughter. However, the ALJ offered
21 other reasons for failing to credit fully plaintiff’s allegations and testimony. Therefore,
22 the Court concludes that any error is harmless.
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ORDER ON PLAINTIFF’S COMPLAINT - 4

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Plaintiff testified that when she sits, she has to have her legs straight out in front of

2 her, otherwise she only can sit for ten minutes at a time if her knees have to be bent (see
3 AR. 37). Although defendant argues that this testimony is inconsistent with plaintiff’s
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testimony that she can drive, defendant has not directed the Court to any testimony by
plaintiff that she drives more than ten minutes at a time (see AR. 30). Likewise, the

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ALJ’s finding of an inconsistency between plaintiff’s allegations and the fact that she
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helped her granddaughter for an hour before and after school also is not supported by
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substantial evidence in the record, as there is no indication that taking care of the
grandchild required more than telling her what do or that it required any activities that

11 plaintiff alleged that she could not perform (see AR. 170). An ALJ may not speculate, but
12 must make findings based on substantial evidence in the record. See SSR 86-8, 1986 SSR
13 LEXIS 15 at *22; see also Bayliss, supra, 427 F.3d at 1214 n.1 (citing Tidwell, supra,
14 161 F.3d at 601). The ALJ’s reliance on plaintiff’s activities of daily living when failing
15 to credit fully plaintiff's allegations and testimony does not support the ALJ’s credibility
16 determination, as discussed further below.
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The other activity purportedly inconsistent with plaintiff’s allegations is her
reference to the fact that she does light housework (see AR. 170). The Court concludes

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that plaintiff’s reference to the fact that she does light housework is not a demonstrated
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inconsistency with her alleged limitations and the ALJ’s finding of an inconsistency is
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not based on substantial evidence in the record. See Garrison v. Colvin, 759 F.3d 955,
1016 (9th Cir. 2014).

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ORDER ON PLAINTIFF’S COMPLAINT - 5

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Regarding activities of daily living, the Ninth Circuit repeatedly has “asserted that

2 the mere fact that a plaintiff has carried on certain daily activities . . . . does not in any
3 way detract from her credibility as to her overall disability.” Orn v. Astrue, 495 F.3d 625,
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639 (9th Cir. 2007) (quoting Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001)).
The Ninth Circuit specified “the two grounds for using daily activities to form the basis

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of an adverse credibility determination: (1) whether or not they contradict the claimant’s
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other testimony and (2) whether or not the activities of daily living meet “the threshold
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for transferable work skills.” Orn, supra, 495 F.3d at 639 (citing Fair, supra, 885 F.2d at
603). As stated by the Ninth Circuit, the ALJ “must make ‘specific findings relating to

11 the daily activities’ and their transferability to conclude that a claimant’s daily activities
12 warrant an adverse credibility determination. Orn, supra, 495 F.3d at 639 (quoting Burch
13 v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005)).
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The Ninth Circuit recently revisited this issue of activities of daily living and their

15 consistency with pain-related impairments described by a claimant:
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[T]he ALJ erred in finding that [daily] activities, if performed in the
manner that [the claimant] described, are inconsistent with the painrelated impairments that [the claimant] described in her testimony. We
have repeatedly warned that ALJs must be especially cautious in
concluding that daily activities are inconsistent with testimony about
pain, because impairments that would unquestionably preclude work and
all the pressures of a workplace environment will often be consistent
with doing more than merely resting in bed all day. See, e.g., Smolen,
supra, 80 F.3d at 1287 n.7 (“The Social Security Act does not require
that claimants be utterly incapacitated to be eligible for benefits, and
many home activities may not be easily transferable to a work
environment where it might be impossible to rest periodically or take
medication.” (citation omitted in original)); Fair v. Bowen, 885 F.2d
597, 603 (9th Cir. 1989) (“Many home activities are not easily
transferable to what may be the more grueling environment of the

ORDER ON PLAINTIFF’S COMPLAINT - 6

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workplace, where it might be impossible to periodically rest or take
medication.”) Recognizing that “disability claimants should not be
penalized for attempting to lead normal lives in the face of their
limitations,” we have held that “[o]nly if her level of activity was
inconsistent with [a claimant’s] claimed limitations would these
activities have any bearing on [her] credibility.” Reddick, supra, 157
F.3d at 722 (citations omitted in original): see also Bjornson v. Astrue,
671 F.3d 640, 647 (7th Cir. 2012) (“The critical difference between
activities of daily living and activities in a full-time job are that a person
has more flexibility in scheduling the former than the latter, can get help
from other persons . . . , and is not held to a minimum standard of
performance, as she would be by an employer. The failure to recognize
these differences is a recurrent, and deplorable, feature of opinions by
administrative law judges in social security disability cases.” (citations
omitted in original)).
Garrison v. Colvin, 759 F.3d 955, 1016 (9th Cir. 2014).

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Therefore, the ALJ’s reliance on plaintiff’s activities of daily living for his failure
to credit fully her credibility is error. However, the error is harmless.
The Ninth Circuit has “recognized that harmless error principles apply in the

14 Social Security Act context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)
15 (citing Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054 (9th
16 Cir. 2006) (collecting cases)). The court noted that “several of our cases have held that an
17 ALJ’s error was harmless where the ALJ provided one or more invalid reasons for
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disbelieving a claimant’s testimony, but also provided valid reasons that were supported
by the record.” Id. (citations omitted). The Ninth Circuit noted that “in each case we look

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at the record as a whole to determine [if] the error alters the outcome of the case.” Id. The
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court also noted that the Ninth Circuit has “adhered to the general principle that an ALJ’s
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error is harmless where it is ‘inconsequential to the ultimate nondisability
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determination.’” Id. (quoting Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155,

ORDER ON PLAINTIFF’S COMPLAINT - 7

1 1162 (9th Cir. 2008)) (other citations omitted). The court noted the necessity to follow
2 the rule that courts must review cases “‘without regard to errors’ that do not affect the
3 parties’ ‘substantial rights.’” Id. at 1118 (quoting Shinsheki v. Sanders, 556 U.S. 396, 407
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(2009) (quoting 28 U.S.C. § 2111) (codification of the harmless error rule)).
In addition to relying on plaintiff’s activities of daily living, the ALJ also relied on

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inconsistencies between plaintiff’s allegations and the record. As noted by the ALJ and as
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summarized by defendant, plaintiff “complained that she could not sit, stand, or walk for
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more than ten minutes at a time since her alleged onset date [of October 5, 2009] (internal
citation to AR. 14, 37-38) . . . . [and] that her medications caused drowsiness,

11 dizziness and fatigue (internal citation to AR. 14, 35, 194; but see AR. 176, 229, 270,
12 369)” (see Response, Dkt. 12, pp. 5-6).
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First, despite testifying at her hearing that that her medications caused drowsiness,

14 dizziness and fatigue, plaintiff indicated on August 11, 2010 that she had been “taking
15 her medications without side effects” and wrote on May 24, 2011 that her medications
16 did not cause any side effects (see AR. 35, 176, 229). Similarly, on April 1, 2011,
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plaintiff’s treatment record indicates that plaintiff was not experiencing any side effects,
and with respect to her knee pain, plaintiff had indicated that her injections had been

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helping (see AR. 270). On November 30, 2011, treatment notes indicate that plaintiff
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indicated “No problems with her medications. No side effects” (see AR. 369). The ALJ’s
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finding that plaintiff’s “treatment record does not fully corroborate the claimant’s
testimony” is supported by the substantial evidence of the inconsistency between

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ORDER ON PLAINTIFF’S COMPLAINT - 8

1 plaintiff’s testimony regarding her side effects and the treatment record indicating no side
2 effects (see AR. 14).
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Similarly, defendant argues that a note in the record regarding a trip to the east
coast is inconsistent with plaintiff’s alleged limitations, as pointed out by the ALJ (see
AR. 18, 229). The Court notes that this trip was during the time when plaintiff reported

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that she was experiencing relief due to a cortisone shot (see AR. 338). Although plaintiff
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testified at her hearing that since her alleged onset date of October 5, 2009 she could not
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sit, stand, or walk for more than ten minutes at a time, in August, 2010, plaintiff took a
trip to the east coast (see AR. 14, 37-38) Substantial evidence supports the ALJ’s finding

11 of an inconsistency, as it is a logical inference that one cannot get to the east coast
12 without sitting, standing or walking for more than ten minutes at a time and without
13 sitting more than two hours, standing more than an hour or walking more than an hour in
14 an eight hour period, plaintiff’s alleged limitations. See Sample v. Schweiker, 694 F.2d
15 639, 642 (9th Cir. 1982) (the ALJ may “draw inferences logically flowing from the
16 evidence”) (citing Beane v. Richardson, 457 F.2d 758 (9th Cir. 1972); Wade v. Harris,
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509 F. Supp. 19, 20 (N.D. Cal. 1980)). The ALJ’s reference to this inconsistency
provides some support for his credibility determination.

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The ALJ also relied on the fact that the medical record and contemporaneous
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reports of plaintiff’s functioning were inconsistent with her allegations and testimony. As
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summarized at length by the ALJ, and as summarized concisely by defendant, despite
plaintiff’s allegations of an inability to sit, stand or walk for more than ten minutes since

24 October 5, 2009, plaintiff “reported 11 months of ‘excellent relief’ from her cortisone

ORDER ON PLAINTIFF’S COMPLAINT - 9

1 injection, lasting between approximately February 2010 through January 2011 (internal
2 citation to AR. 15, 242); [and] [p]laintiff did not note any knee pain to her primary care
3 provider in August 2010, despite her later statements of inability to sit, stand, or walk at
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that time (internal citation to AR. 15, 229)” (Response Dkt. 12, p. 8). Substantial
evidence supports the summary by the ALJ with respect to these findings. For instance,

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on January 10, 2011, plaintiff reported experiencing “excellent relief for about 11
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months,” after receiving a cortisone injection (AR. 242). Similarly, in August, 2010,
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plaintiff visited the hospital for a follow-up on hypertension and did not report any knee
pain and denied myalgias (see AR. 229). The ALJ made a logical inference that if

11 plaintiff had been experiencing disabling knee pain at this time she would have
12 mentioned it when she went for treatment. This inference is based on substantial
13 evidence in the record as a whole.
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Therefore, the Court concludes that the ALJ’s finding that plaintiff’s testimony at

15 her hearing regarding her limitations was contradicted by contemporaneous reports in the
16 treatment record during the alleged period of disability is a finding based on substantial
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evidence in the record. The Court also concludes that this finding entails specific, clear
and convincing rationale for failing to credit fully plaintiff’s allegations and testimony

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regarding her limitations, when coupled with the ALJ’s extensive discussion of the
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objective medical evidence and the other inconsistencies already discussed (see AR. 1421
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17).
The ALJ’s discussion of the objective medical evidence and the treatment record

24 included plaintiff’s report in May, 2011 that she had “done fairly well since [3 months

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1 prior]” and was feeling “much better” (AR. 283); an indication in the October 12, 2011
2 record that plaintiff “stated that overall she was ‘somewhat better than before’” (AR. 16
3 (citing AR. 333)); and, an indication in a November 30, 2011 treatment record that
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plaintiff “reported lessening pain that was aided with taping” (AR. 16 (citing AR. 363)).
Although this later report was indicated by the ALJ as occurring in December, 2011,

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when it occurred on November 30, 2011, substantial evidence supports the ALJ’s
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summary, as the Court notes that plaintiff reported at this November 30, 2011
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examination that her pain was less (see AR. 363). The Court also notes that at this
examination, plaintiff indicated that her resting pain was 3/10, and that her pain “after

11 long walks” was 6/10, thereby suggesting that her pain was limited and also suggest that
12 she was walking more than ten minutes at a time (see id.).
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The Court also notes that at plaintiff’s August, 2010 appointment, the record

14 indicates that plaintiff had not “been seen in nearly a year,” supporting the ALJ’s
15 implication that had plaintiff been experiencing disabling limitations during this time, she
16 would have sought medical treatment more consistently (see AR. 229).
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For the reasons stated and based on the record as a whole, the Court concludes that
the ALJ provided specific, clear and convincing reasons supported by substantial

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evidence in the record as a whole for his failure to credit fully plaintiff’s allegations and
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testimony regarding the duration and limiting effects of her impairments and symptoms.
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CONCLUSION

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Based on the stated reasons and the relevant record, the Court ORDERS that this

24 matter be AFFIRMED pursuant to sentence four of 42 U.S.C. § 405(g).

ORDER ON PLAINTIFF’S COMPLAINT - 11

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JUDGMENT should be for defendant and the case should be closed.

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Dated this 5th day of January, 2015.

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A

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J. Richard Creatura
United States Magistrate Judge

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