Montez v. Berryhill

Filing 15

ORDER AFFIRMING THE COMMISSIONERS DECISION TO DENY BENEFITS by Judge David W. Christel. (SH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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GAYLE E. MONTEZ,

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

CASE NO. 3:17-cv-05485-DWC
ORDER AFFIRMING THE
COMMISSIONER’S DECISION TO
DENY BENEFITS

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Defendant.
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Plaintiff Gayle E. Montez filed this action, pursuant to 42 U.S.C. § 405(g), for judicial

17 review of Defendant’s denial of her applications for supplemental security income (“SSI”) and
18 disability insurance benefits (“DIB”). Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil
19 Procedure 73 and Local Rule MJR 13, the parties have consented to have this matter heard by the
20 undersigned Magistrate Judge. See Dkt. 5.
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After considering the record, the Court concludes the Administrative Law Judge

22 (“ALJ”) properly assessed whether Plaintiff could perform past relevant work, the residual
23 functional capacity (“RFC”) determination, and Plaintiff’s credibility. As the ALJ’s decision
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ORDER AFFIRMING THE COMMISSIONER’S
DECISION TO DENY BENEFITS - 1

1 finding that Plaintiff not disabled is supported by substantial evidence, the Commissioner’s
2 decision is affirmed pursuant to sentence four of 42 U.S.C. § 405(g).
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FACTUAL AND PROCEDURAL HISTORY
On December 6, 2013, Plaintiff filed applications for SSI and DIB, alleging disability as

5 of December 31, 2012. See Dkt. 10, Administrative Record (“AR”) 213-219, 220-27, 343. The
6 applications were denied upon initial administrative review and on reconsideration. See id. A
7 hearing was held before ALJ Kelly Wilson on August 5, 2015. See AR 39-84. In a decision
8 dated February 1, 2016, the ALJ determined Plaintiff to be not disabled. See AR 14-38.
9 Plaintiff’s request for review of the ALJ’s decision was denied by the Appeals Council, making
10 the ALJ’s decision the final decision of the Commissioner. See AR 1-6; 20 C.F.R. § 404.981, §
11 416.1481.
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In the Opening Brief, Plaintiff maintains the ALJ failed to properly assess (1) whether

13 Plaintiff could perform past relevant work, (2) Plaintiff’s RFC, and (3) Plaintiff’s subjective
14 symptom testimony. Dkt. 12 at 1-2. Plaintiff asks the Court to remand for award of benefits.
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STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of

17 social security benefits if the ALJ’s findings are based on legal error or not supported by
18 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th
19 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)).
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ORDER AFFIRMING THE COMMISSIONER’S
DECISION TO DENY BENEFITS - 2

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DISCUSSION

2 I.

Whether the ALJ Properly Determined Plaintiff Could Perform Past Relevant
Work.

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Plaintiff argues the ALJ erred at step four in determining Plaintiff could perform her past
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relevant work as a dental assistant and deli cutter-slicer. Dkt. 12 at 5-7. Plaintiff contends the
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vocational expert’s (“VE”) testimony indicating Plaintiff could perform the deli cutter-slicer job
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was inconsistent with the Dictionary of Occupational Titles (“DOT”), and the VE failed to
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justify the inconsistency. Id. Defendant concedes error in finding Plaintiff capable of her job as a
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dental assistant, but argues the error is harmless because Plaintiff could do other past relevant
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work as a deli cutter-slicer, which is supported by substantial evidence. Dkt. 13 at 3.
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If a disability determination “cannot be made on the basis of medical factors alone at step
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three of the evaluation process,” the ALJ must identify the claimant’s “functional limitations and
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restrictions” and assess his or her “remaining capacities for work-related activities.” SSR 96-8p,
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1996 WL 374184 *2. A claimant’s RFC assessment is used at Step Four to determine whether he
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or she can do his or her past relevant work, and at Step Five to determine whether he or she can
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do other work. Id. The RFC is the maximum amount of work the claimant is able to perform
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based on all of the relevant evidence in the record. Id.
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The ALJ has the affirmative responsibility to ask the VE about possible conflicts between
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her testimony and information in the DOT and its companion publication, the Selected
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Characteristics of Occupations (“SCO”). See Social Security Ruling (“SSR”) 00-4p, 2000 WL
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1898704. Before relying on evidence obtained from a VE to support a finding of not disabled,
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the ALJ is required to elicit a reasonable explanation for any discrepancy with the DOT. See id.
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at *1. The ALJ also must explain in her decision how the discrepancy or conflict was resolved.
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See id. at *4. To be characterized as a discrepancy, however, the conflict must be obvious or
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ORDER AFFIRMING THE COMMISSIONER’S
DECISION TO DENY BENEFITS - 3

1 apparent, meaning that the VE's testimony must be at odds with the DOT's listing of duties that
2 are essential, integral, or expected for performing that job. See Gutierrez v. Colvin, 844 F.3d 804,
3 808 (9th Cir. 2016).
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Here, in assessing Plaintiff’s RFC, the ALJ determined Plaintiff is:

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[L]imited to frequent reaching, handling, and fingering with the bilateral upper
extremities. The claimant needs to avoid concentrated exposure to hazards in the
workplace such as dangerous moving machinery or unprotected heights. She can
perform simple and detailed tasks but would have difficulty performing more
complex tasks consistently due to her depressive symptoms.

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8 AR 24. The ALJ then at step four found Plaintiff could perform her past relevant work as a deli
9 cutter-slicer (DOT § 316.684-014) and dental assistant (DOT § 079.361-018), and therefore, is
10 not disabled. AR 31.
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The VE testified the performance of the dental assistant job would be precluded by the

12 limitation of difficulty performing complex tasks consistently. AR 79. The VE further testified
13 her testimony was consistent with DOT. AR 83. Based on the VE’s testimony, the ALJ
14 concluded Plaintiff retained the ability to perform past relevant work as a dental assistant and
15 deli cutter-slicer. AR 31. As noted above, Defendant concedes error in finding Plaintiff capable
16 of performing her job as a dental assistant. Thus, the Court considers whether the error is
17 harmless.
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The DOT describes the duties of a deli cutter-slicer as follows:

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Cuts delicatessen meats and cheeses, using slicing machine, knives, or other
cutters: Places meat or cheese on cutting board and cuts slices to designated
thickness, using knives or other hand cutters. Positions and clamps meat or cheese
on carriage of slicing machine. Adjusts knob to set machine for desired thickness.
Presses button to start motor that moves carriage past rotary blade that slices
meats and cheeses. Stacks cut pieces on tray or platter, separating portions with
paper. May weigh and wrap sliced foods and affix sticker showing price and
weight.

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DOT § 316.684.014.
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ORDER AFFIRMING THE COMMISSIONER’S
DECISION TO DENY BENEFITS - 4

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The SCO explains the physical and environmental demands of each job listed in the

2 DOT, including whether a job involves proximity to moving mechanical parts. See SCO, App. D.
3 (Proximity to moving mechanical parts is defined as: “[e]xposure to possible bodily injury from
4 moving mechanical parts of equipment, tools, or machinery.”). The SCO entry for deli cutter5 slicer shows exposure to mechanical moving parts is “Not Present – Activity or condition does
6 not exist.” 1991 WL 672744.
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Here, neither party disputes the plain language of the DOT description for deli cutter-

8 slicer job. Dkt. 12; Dkt. 13; Dkt. 14. Plaintiff argues the deli cutter-slicer job is incompatible
9 with a limitation of work involving dangerous machinery because it requires her to use and work
10 around a slicing machine. Dkt. 12 at 4-6. The Court notes in her reply, Plaintiff raises two new
11 issues. First, Plaintiff argues the dangerousness of a slicing machine has been established by an
12 article from the Department of Labor, Occupational Safety and Health Administration (“OSHA”)
13 entitled “Preventing Cuts and Amputations from Food Slicers and Meat Grinders,” which
14 discusses the hazards of food slicers and meat grinders. Dkt. 14 at 2. The article provides:
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Food slicers and meat grinders used in food service industries such as grocery
stores, restaurants and delicatessens can cause serious cuts and amputations when
workers operate, perform maintenance, or clean the machines.

17 Dkt. 14 at 2 (citing https://www.osha.gov/Publications/OSHA3794.pdf). Second, Plaintiff
18 contends even if the Court finds the “deli slicing machine, knives or other cutters” used by a deli
19 cutter-slicer do not involve exposure to “dangerous moving machinery,” the use of a slicing
20 machine, knives and other cutters constitutes “exposure to hazards.” Dkt. 14 at 2-3. However,
21 Plaintiff did not raise these issues in her Opening Brief and Defendant has been denied any
22 opportunity to respond to these arguments raised for the first time in Plaintiff’s Reply Brief.
23 Thus, Plaintiff has waived such challenge. Thompson v. Commissioner, 631 F.2d 642, 649 (9th
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ORDER AFFIRMING THE COMMISSIONER’S
DECISION TO DENY BENEFITS - 5

1 Cir. 1980), cert. denied, 452 U.S. 961 (1981) (“appellants cannot raise a new issue for the first
2 time in their reply briefs”) (citing U.S. v. Puchi, 441 F.2d 697, 703 (9th Cir. 1971), cert. denied,
3 404 U.S. 853 (1971)); U.S. v. Levy, 391 F.3d 1327, 1335 (11th Cir. 2004) (“raise the issue in
4 your initial brief or risk procedural bar”). Nevertheless, even if the Court considered Plaintiff’s
5 citation to OSHA, OSHA is not a part of the DOT, thus, this cannot be characterized as a
6 discrepancy. See Jackson v. Astrue, 2012 WL 835979, at *2 (C.D. Cal. Mar. 8, 2012) (finding
7 OSHA is not a part of DOT and as such, the VE was not obligated to explain any inconsistency
8 with respect to plaintiff’s ability to work near conveyor belts). See Gutierrez, 844 F.3d at 808
9 (To be characterized as a discrepancy, the conflict must be obvious or apparent, meaning that the
10 vocational expert's testimony must be at odds with the DOT's listing of duties that are essential,
11 integral, or expected for performing that job.). Moreover, the SCO does not indicate that the use
12 of a slicing machine, knives or cutters constitutes exposure to hazards. 1991 WL 672744
13 (providing the deli cutter-slicer job does not involve exposure to weather, extreme cold, extreme
14 heat, wet and/or humid conditions, vibration, atmospheric conditions, moving mechanical parts,
15 electric shock, high exposed places, radiation, explosives, or toxic caustic chemicals).
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Here, DOT and SCO indicate a deli cutter-slicer job does not involve proximity to

17 moving mechanical parts, defined as “[e]xposure to possibly bodily injury from moving
18 mechanical parts of equipment, tools, or machinery,” see SCO, App. D. While the deli cutter19 slicer job may involve the use of some type of machinery such as a deli slicing machine, the
20 DOT and SCO have classified such machinery as not dangerous, and therefore, the deli cutter21 slicer job does not necessarily require concentrated exposure to dangerous moving machinery
22 precluded by Plaintiff’s RFC. Thus, the VE's testimony in response to the ALJ's hypothetical
23 question does not create a material conflict with the DOT and is substantial evidence supporting
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ORDER AFFIRMING THE COMMISSIONER’S
DECISION TO DENY BENEFITS - 6

1 the ALJ's step-four finding. Cf. Overman v. Astrue, 546 F.3d 456, 463 (7th Cir. 2008) (per
2 curiam) (noting the clear conflict between a VE's testimony that the claimant could perform work
3 as a hand packager and the ALJ's finding that he must avoid any exposure to extreme heat, a
4 condition that the DOT states exists “frequently” in hand packager jobs).
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As Plaintiff fails to demonstrate any conflict between the DOT description of the deli

6 cutter-slicer job and the VE's testimony, the ALJ did not err in finding that Plaintiff could
7 perform the job. See generally Wester v. Colvin, 2015 WL 4608139, at *6 (C.D. Cal. July 31,
8 2015) (noting that the ALJ was entitled to rely on VE's testimony “when [the] DOT description
9 does not, on its face, conflict with the claimant's RFC”); McBride v. Comm'r of Soc. Sec. Admin.,
10 2014 WL 788685, at *8-*9 (E.D. Cal. Feb. 25, 2014) (holding that ALJ justifiably relied on VE's
11 testimony where there was no apparent conflict between the VE's testimony and the DOT).
12 II.

Whether the ALJ Properly Assessed Plaintiff’s RFC.

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Next, Plaintiff contends substantial evidence does not support the RFC finding because:

14 (1) the ALJ rejected almost of the medical evidence and failed to cite to any evidence supporting
15 the conclusion Plaintiff can frequently reach, handle and finger and (2) the hypothetical
16 presented to the vocational expert did not incorporate any head or arm tremors. Dkt. 12 at 7-12.
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Even if the ALJ erred when she assessed Plaintiff’s RFC, Plaintiff has not shown why

18 such an error is not harmless. See Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (quoting
19 Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (“‘[T]he burden of showing that an error is
20 harmful normally falls upon the party attacking the agency's determination.’ ”)). The VE testified
21 that if the tremors resulted in an occasional ability to reach, handle or finger, Plaintiff could not
22 perform her past relevant work. But, Plaintiff has not cited to any objective evidence in the
23 record establishing she can only occasionally reach, handle, or finger. In fact, as Plaintiff
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ORDER AFFIRMING THE COMMISSIONER’S
DECISION TO DENY BENEFITS - 7

1 acknowledges, there is no objective evidence in the record whatsoever indicating Plaintiff’s
2 ability to reach, handle and finger is limited in any way. The only evidence in the record related
3 to Plaintiff’s hand movements is Dr. Polo’s opinion that Plaintiff has a hand tremor. AR 658,
4 661. However, Dr. Polo did not make any observations or state an opinion related to Plaintiff’s
5 ability to reach, handle and finger. See id. As a result, Plaintiff fails to offer any explanation nor
6 has she cited to any evidence in the record to establish her inability to frequently reach, handle
7 and finger would impair her ability to function under the limitations included the ALJ’s RFC. It
8 is Plaintiff’s duty to show her inability to frequently reach, handle, and finger had more than a
9 minimal effect on her ability to perform work duties. As such, any error in the ALJ’s assessment
10 of her RFC was harmless. Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007); (Collins v. Astrue,
11 2009 WL 112863, at *5 (W.D. Wash. Jan.14, 2009) (error harmless “because there is no medical
12 evidence in the record that plaintiff's headaches caused him any work-related limitations”).
13 III. Whether the ALJ provided sufficient reasons for discrediting Plaintiff’s testimony.
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Plaintiff contends the ALJ erred by failing to provide clear and convincing reasons for

15 rejecting Plaintiff’s subjective symptom testimony. Dkt. 12 at 13-17.
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To reject a claimant’s subjective complaints, the ALJ must provide “specific, cogent

17 reasons for the disbelief.” Lester, 81 F.3d at 834 (citation omitted). The ALJ “must identify what
18 testimony is not credible and what evidence undermines the claimant’s complaints.” Id.; see also
19 Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Unless affirmative evidence shows the
20 claimant is malingering, the ALJ’s reasons for rejecting the claimant’s testimony must be “clear
21 and convincing.” Lester, 81 F.2d at 834 (citation omitted). Questions of credibility are solely
22 within the ALJ’s control. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). The Court
23 should not “second-guess” this credibility determination. Allen v. Heckler, 749 F.2d 577, 580
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ORDER AFFIRMING THE COMMISSIONER’S
DECISION TO DENY BENEFITS - 8

1 (9th Cir. 1984). Moreover, the Court may not reverse a credibility determination where the
2 determination is based on contradictory or ambiguous evidence. Id. at 579.
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Plaintiff testified she is unable to work due to her depression and her tremor. AR 25.

4 Plaintiff testified her tremor has worsened to the point where she cannot use her hands to make
5 a sandwich. AR 25. Plaintiff testified her tremors travel down from her head into her arms and
6 hands and are worse on the left than the right side. Id. Plaintiff testified stress increases her
7 tremor. Id. With respect to her depression, Plaintiff testified she has difficulty getting out of
8 bed and is unmotivated. Id. Plaintiff self-isolates and is easily confused. Id.
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Regarding her work history, Plaintiff testified she worked at Carl’s Jr. part-time, after

10 the alleged onset date. Id. However, Plaintiff quit this job because her tremor did not allow her
11 to get up to speed with her co-workers, and she had difficulty pressing buttons. Id. Plaintiff
12 testified she babysat for her daughter, watching her five-and-a-half and one-year-old
13 grandchildren. Id. Plaintiff testified she did whatever was necessary for the baby, but it was
14 difficult and she had to sit down a lot because she had neck pain and was tired. Id.
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The ALJ found Plaintiff’s impairments could be expected to cause some of her

16 symptoms. AR 26. However, the ALJ determined Plaintiff’s “statements concerning the
17 intensity, persistence and limiting effects of these symptoms are not entirely credible” because:
18 (1) Plaintiff failed to seek treatment for her tremors for long periods of time; (2) Plaintiff failed
19 to fill a prescription for propranolol as recommended by her neurologist; (3) Plaintiff has
20 experienced significant improvement in her depression symptoms with the use of medication
21 and counseling, and the disabling symptoms reported at the hearing are not consistent with the
22 with the progress notes; (4) Plaintiff’s activities of daily living are not consistent with her
23 hearing testimony; and (5) the objective medical evidence indicates Plaintiff’s hand tremor is
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ORDER AFFIRMING THE COMMISSIONER’S
DECISION TO DENY BENEFITS - 9

1 intermittent, and there have been long stretches of time where Plaintiff did not have any
2 tremor-related complaints. AR 25-26.
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A. Failure to Seek Treatment for Tremors

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First, the ALJ discounted Plaintiff’s subjective symptom testimony because Plaintiff did

5 not seek treatment for “long periods”. AR 25. The ALJ reasoned this suggests Plaintiff’s
6 symptoms from her tremors were not significantly affecting her functioning. Id.
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When assessing a claimant’s subjective symptom testimony, an ALJ may consider

8 “unexplained or inadequately explained failure to seek treatment or to follow a prescribed course
9 of treatment.” Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) (citations omitted).
10 However, an ALJ “must not draw any inferences about an individual’s symptoms and their
11 functional effects from a failure to seek or pursue regular medical treatment without first
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12 considering any explanations that the individual may provide.” SSR 96-7p at *7 (1996); see

13 also Mitchell v. Colvin, 584 Fed. Appx. 309, 314 (9th Cir. 2014) (citing SSR 96-7p) (ALJ erred,
14 in part, by failing to ask plaintiff about “perceived inconsistencies in following recommended
15 treatment” even though the ALJ “relied on those lapses to discredit him”).
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With respect to the ALJ’s finding that Plaintiff failed to seek treatment for “long

17 periods,” the record reflects Plaintiff did not seek treatment for her tremors between the alleged
18 onset date of December 2012 and October 2013. See AR 489-790. In October 2013, Plaintiff
19 complained about her tremors to her primary care provider, AR 617, and Plaintiff was referred
20 to neurologist, Dr. Kathleen Polo, M.D, AR 657. Plaintiff saw Dr. Polo in June 2014, and
21 Plaintiff was advised to follow up in three months. AR 657. Plaintiff did not see Dr. Polo again
22 until March 2015. AR 661.
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Although SSR 96-7p was superseded after the ALJ’s hearing, the Court applies SSR 96-7p in this case

24 because it was in effect at the time of the ALJ’s decision.
ORDER AFFIRMING THE COMMISSIONER’S
DECISION TO DENY BENEFITS - 10

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Plaintiff argues financial constraints limited her ability to seek treatment for her tremors.

2 Dkt. 12 at 14 (citing AR 433, 526, 583, 589). But, the majority of the evidence cited by Plaintiff
3 is not relevant to her treatment for her tremors after the alleged onset date of December 2012.
4 See AR 433 (ability to pay for ADHD medication); AR 489 (ability to pay for Wellbutrin
5 prescription); AR 526 (ability to pay for Mysoline in May 2010). However, one portion of the
6 record reflects during a psychological/psychiatric evaluation in January 2014, Plaintiff reported
7 “she has been referred to a specialist for the tremor but has not been able to go until she knows
8 about her medical coverage.” AR 583. At the hearing, the ALJ did not question Plaintiff
9 regarding her income or medical insurance. See AR 39-84.
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Here, the record indicates Plaintiff was waiting on confirmation of her insurance

11 coverage to seek follow up treatment with Dr. Polo in 2014. AR 583. It appears the issue was
12 ultimately resolved, as Plaintiff did see Dr. Polo in June 2014. AR 658-661. The evidence does
13 not, however, show Plaintiff unable to afford treatment. See AR 583; 658, 661. Moreover,
14 there is no evidence in the record as to whether Plaintiff’s failure to seek treatment between
15 December 2012 and October 2013, and between June 2014 and March 2015 could be attributed
16 to her waiting for confirmation on insurance coverage. Although the ALJ did not question
17 Plaintiff at the hearing regarding her ability to afford treatment or whether she had insurance
18 coverage, the record lacks enough detail to support Plaintiff’s argument. Thus, Plaintiff has not
19 shown there was a good reason for her failure to seek treatment, and thus, the Court concludes
20 the ALJ’s finding that Plaintiff failed to seek treatment for long periods supports the credibility
21 determination. See SSR 96-7p 1996 SSR LEXIS 4, *21-22 (“the individual’s statements may be
22 less credible if the level or frequency of treatment is inconsistent with the level of complaints. . .
23 . and there are no good reasons for this failure”).
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B. Failure to Fill Propranolol Prescription

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Second, the ALJ discounted Plaintiff’s subjective symptom testimony because she

3 failed to fill her propranolol prescription for eight months. AR 25.
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The record reflects in June 2014, Dr. Polo recommended Plaintiff try propranolol for

5 her tremors. AR 659. Dr. Polo also recommended Plaintiff check her blood pressure, and
6 Plaintiff could switch medications if she had “any trouble with that.” AR 659. Plaintiff did not
7 fill the initial propranolol prescription. AR 661. Eight months later, in March 2015, Plaintiff
8 saw Dr. Polo a second time, and Plaintiff reported she did not want to try propranolol because
9 she was anxious about lowering her blood pressure too much. AR 661. In March 2015 Plaintiff
10 was also advised she would start on a low dose, because the medication could make her blood
11 pressure drop. AR 662. Plaintiff was also advised if she felt light headed or her blood pressure
12 dropped below 100/50, Plaintiff should not take the next dose of medication. AR 662. At the
13 hearing, the ALJ questioned Plaintiff about her failure to fill the propranolol prescription. AR
14 56-57. Plaintiff testified she did not want to fill the prescription because she was concerned
15 about the effect on her blood pressure. AR 56.
16

Although an unexplained failure to seek treatment can undermine a claimant's credibility,

17 Plaintiff's explanation indicates that her initial reluctance to fill her propranolol prescription was
18 based on her concern for her blood pressure, rather than her lack of severe symptoms. See
19 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (indicating that an ALJ may properly
20 consider a claimant's unexplained or inadequately explained failure to seek treatment when
21 assessing credibility). Accordingly, in order for the ALJ to rely on the alleged failure to seek
22 treatment, she had to determine Plaintiff’s explanation was inadequate. See id.; SSR 96–7p at *7.
23 Although the ALJ questioned Plaintiff at the hearing about her explanation for failing to fill her
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DECISION TO DENY BENEFITS - 12

1 propranolol prescription, there is no indication the ALJ considered this explanation in her
2 decision. See 20-27. Therefore, the Court finds Plaintiff’s noncompliance in filling her
3 prescription for propranolol is not a clear and convincing reason to discount her credibility.
4

C. Improvement with Treatment

5

Third, the ALJ found Plaintiff’s depression improved with medication and counseling.

6 AR 26 (citing generally to AR 689-778 (Office Visits from Community Healthcare) and AR
7 780-790 (assessment from Comprehensive Life)). The ALJ reasoned Plaintiff’s distress was
8 situational, and revolved around having to live with her daughter and son-in-law, and once
9 Plaintiff moved out, her depression improved. AR 26. The ALJ also referenced Plaintiff’s
10 report of different expectations regarding childcare. AR 26.
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The record reflects in September 2013, Plaintiff reported she was upset about having to

12 live with her daughter and son-in-law. AR 621. Plaintiff reported she wanted to live
13 independently and work. Id. In October 2013, PA-C Danielle Daehnke described Plaintiff’s
14 health symptoms as improved and “well-controlled.” AR 617. Plaintiff reported she was happy
15 with her medication, and counseling had been helpful. Id.
16

In September 2014, Plaintiff moved out of her daughter’s house and reported continued

17 depressive symptoms, and her primary care provider, Dr. Partha Gonabaram, M.D., increased
18 her dosage of Lexapro. AR 690-694. In November 2014, Plaintiff reported an improvement in
19 her symptoms and stated, “functioning is not difficult at all.” Id. In May 2015, Plaintiff’s
20 depression was noted as “improved,” and Plaintiff denied suicidal or homicidal ideation. AR
21 747. Plaintiff reported she was trying to take care of herself. Id.
22

However, two months later in July 2015, Plaintiff reported “I feel insignificant and

23 hopeless …. I am stressed easily, tired all the time, not motivated and don’t have interest in
24 doing anything.” AR 780. Plaintiff reported she struggles to feel motivated to take care of
ORDER AFFIRMING THE COMMISSIONER’S
DECISION TO DENY BENEFITS - 13

1 herself and is irritable, verbally aggressive, and angry. Id. She reported crying episodes for no
2 reason and feeling as if she can’t stop. Id. Plaintiff denied suicidal ideation, but stated there are
3 times when “I wish it were over.” AR 782. Plaintiff was diagnosed with major depressive
4 disorder. AR 783. A therapist was scheduled to meet with Plaintiff and develop strategies for
5 coping with her depressive symptoms, and a psychiatrist was scheduled for a medication
6 consultation. AR 784. In August 2015, counseling notes indicate Plaintiff was finding the
7 energy to make to her appointments and taking care of herself. AR 789.
8

The evidence is ambiguous regarding whether Plaintiff’s depression was situational,

9 and whether it improved with treatment and medication. It appears Plaintiff’s depression did
10 improve in 2013 and 2014, but worsened in 2015. As the evidence is ambiguous, the Court
11 concludes the ALJ’s finding that Plaintiff’s depression improved with treatment and
12 medication supports the credibility determination. See Allen, 749 F.2d at 579 (court may not
13 reverse a credibility determination where that determination is based on contradictory or
14 ambiguous evidence); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citing Morgan,
15 supra, 169 F.3d at 599, 601) (It is not the job of the court to reweigh the evidence: If the
16 evidence “is susceptible to more than one rational interpretation,” including one that supports the
17 decision of the Commissioner, the Commissioner's conclusion “must be upheld.”).
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D. Daily Activities

19

Fourth, the ALJ found Plaintiff was not entirely credible because she was able to

20 function at a level greater than alleged. AR 25-26. The Ninth Circuit has recognized two
21 grounds for using daily activities to form the basis of an adverse credibility determination: (1)
22 whether the activities contradict the claimant’s other testimony and (2) whether the activities of
23 daily living meet “the threshold for transferable work skills.” Orn v. Astrue, 495 F.3d 625, 639
24 (9th Cir. 2007). Inconsistencies between symptom allegations and daily activities may act as a
ORDER AFFIRMING THE COMMISSIONER’S
DECISION TO DENY BENEFITS - 14

1 clear and convincing reason to discount a claimant's credibility, see Tommasetti v. Astrue, 533
2 F.3d 1035, 1039 (9th Cir. 2008); Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991), but a
3 claimant need not be utterly incapacitated to obtain benefits. Fair v. Bowen, 885 F.2d 597, 603
4 (9th Cir. 1989). “If a claimant is able to spend a substantial part of his day engaged in pursuits
5 involving the performance of physical functions that are transferable to a work setting, a specific
6 finding as to this fact may be sufficient to discredit a claimant's allegations.” Morgan v. Comm'r
7 of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999); accord Vertigan v. Halter, 260 F.3d
8 1044, 1050 (9th Cir. 2001).
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The ALJ cited to Plaintiff’s reports she is able to: (1) work part-time at Carl’s Jr and

10 babysit for her young grandchildren; (2) lives independently; (3) play Rock-a-Roke (live
11 karaoke) occasionally; (4) drive; (5) shop; and (6) work regularly with the Division of
12 Vocational Rehabilitation. AR 25-26. Specifically, the ALJ reasoned Plaintiff’s reports of
13 working part-time at Carl’s Jr. show she had no significant difficulty performing the job, despite
14 complaints of a tremor. AR 25. Further, the ALJ found taking care of young children is
15 exertional work, which Plaintiff performed three days per week, five hours per day, making it
16 “difficult to find that she has significant physical or mental limitations that would prevent
17 performance of lighter exertional work for longer periods.” AR 26, 46-48.
18

Here, the ALJ’s reasons are not convincing when reviewing the record as a whole and

19 weighing both the evidence that supports and the evidence that detracts from the ALJ's
20 conclusion. See Desrosiers v. Sec'y of Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988)
21 (explaining that this court reviews the record as a whole, “weighing both the evidence that
22 supports and the evidence that detracts from the [Commissioner's] conclusion”). The ALJ did not
23 address the limited nature of Plaintiff's daily activities or determine whether such activities were
24
ORDER AFFIRMING THE COMMISSIONER’S
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1 transferable to the work place.
2

The Ninth Circuit has “repeatedly asserted that the mere fact that a plaintiff has carried

3 on certain daily activities, such as grocery shopping [and] driving a car, ... does not in any way
4 detract from her credibility as to her overall disability. One does not need to be ‘utterly
5 incapacitated’ in order to be disabled.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001)
6 (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)); see Reddick, 157 F.3d at 722. The ALJ
7 did not cite to specific evidence demonstrating Plaintiff drives, shops, or does any other activity
8 on a daily basis. See AR 26. The record indicates Plaintiff likes to participate in Rock-a-roke, but
9 does not do this often. AR 780. Moreover, the record shows the ALJ mischaracterized Plaintiff’s
10 testimony with respect to her ability to drive. At the hearing, Plaintiff testified she does not drive
11 much anymore because of her tremors. AR 61. Plaintiff testified she takes the bus to doctor’s
12 appointments and the grocery store. AR 62. In sum, there is no evidence these activities consume
13 a substantial part of Plaintiff’s day, and it is unclear whether these activities are transferrable to a
14 work setting. Morgan, 169 F.3d at 600; Reddick, 157 F.3d at 722.
15

Plaintiff testified she worked at Carl’s Jr. approximately 20 to 30 hours per week, but her

16 schedule was reduced to four hours per week because she couldn’t get up to speed. AR 46-47.
17 The “ALJ may not use [claimant]'s part-time work ... as the sole basis for finding [claimant]'s
18 testimony not credible [.]” Riggs v. Colvin, 2015 WL 1476387, at *15 (C.D. Cal. Mar. 31, 2015);
19 see Lingenfelter v. Astrue, 504 F.3d 1028, 1038 (9th Cir. 2007) (mere “fact that a claimant tried
20 to work for a short period of time and, because of his impairments, failed,” does not mean “that
21 he did not then experience pain and limitations severe enough to preclude him from maintaining
22 substantial gainful employment”).
23
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ORDER AFFIRMING THE COMMISSIONER’S
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1

In addition, the fact Plaintiff cared for her grandchildren approximately five hours per

2 day, three days per week does not detract from her credibility. As noted above, the mere ability
3 to perform some tasks is not necessarily indicative of an ability to perform work activities
4 because “many home activities are not easily transferable to what may be the more grueling
5 environment of the workplace, where it might be impossible to periodically rest or take
6 medication.” Fair, 885 F.2d at 603; see also Molina, 674 F.3d at 1112–13 (the ALJ may
7 discredit a claimant who “participat[es] in everyday activities indicating capacities that are
8 transferable to a work setting”). The critical difference between such activities “and activities in
9 a full-time job are that a person has more flexibility in scheduling the former ..., can get help
10 from other persons ..., and is not held to a minimum standard of performance, as she would be by
11 an employer.” Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012) (cited with approval in
12 Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014)). Indeed, Plaintiff testified she rested
13 often while babysitting, and was not able to make a sandwich. AR 46-48. Plaintiff also testified
14 she had to stop babysitting, in part, because she was not able to do it anymore. Id. Thus, this
15 cannot be the basis for an adverse credibility finding. See Trevizo v. Berryhill, 871 F.3d 664, 682
16 (9th Cir. 2017) (finding that, with almost no information in the record about the claimant's
17 childcare activities, “the mere fact that [the claimant] cares for small children does not constitute
18 an adequately specific conflict with her reported limitations”).
19

As such, the ALJ failed to provide a specific, cogent reason supported by substantial

20 evidence for discrediting Plaintiff on the basis that her daily activities were inconsistent with her
21 testimony.
22

E. Objective Medical Evidence

23

Lastly, the ALJ discounted Plaintiff’s subjective symptom testimony because the

24 objective medical evidence indicates Plaintiff’s symptoms are intermittent, and not constant.
ORDER AFFIRMING THE COMMISSIONER’S
DECISION TO DENY BENEFITS - 17

1 AR 26. Specifically, the ALJ noted there have been long periods of time where Plaintiff had no
2 tremor-related complaints and two different neurologists examined Plaintiff after the alleged
3 onset date and neither found any objective evidence of worsening of Plaintiff’s tremor. Id.
4

Determining a claimant’s complaints are “inconsistent with clinical observations” can

5 satisfy the clear and convincing requirement. Regennitter, 166 F.3d at 1297; see also Fisher v.
6 Astrue, 429 F. App’x 649, 651 (9th Cir. 2011). However, a claimant’s pain testimony may not be
7 rejected “solely because the degree of pain alleged is not supported by objective medical
8 evidence.” Orteza v. Shalala, 50 F.3d 748, 749-50 (9th Cir. 1995) (quoting Bunnell v. Sullivan,
9 947 F.2d 341, 346-47 (9th Cir.1991) (en banc)); see also Rollins v. Massanari, 261 F.3d 853,
10 856 (9th Cir. 2001); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989). The same is true with
11 respect to a claimant’s other subjective complaints. See Byrnes v. Shalala, 60 F.3d 639, 641-42
12 (9th Cir. 1995).
13

As discussed above, Plaintiff did not have any tremor-related complaints from December

14 2012 to October 2013. See AR 593-656. However, the record does not support a finding that
15 Plaintiff’s tremor was intermittent or that it was not worsening. In March 2015, Dr. Polo
16 indicated “[c]onstant head and vocal tremor,” AR 661, which is worsened by action,
17 “particularly holding her hands out or rapid alternating movements.” AR 658. Therefore, the
18 Court finds the objective medical evidence is not inconsistent with Plaintiff’s subjective
19 symptom testimony, and is not a clear and convincing reason to discount her credibility.
20

F. Harmless Error

21

The Ninth Circuit has “recognized that harmless error principles apply in the Social

22 Security Act context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (citing Stout v.
23 Commissioner, Social Security Administration, 454 F.3d 1050, 1054 (9th Cir. 2006). The Court
24 noted that “several of our cases have held that an ALJ’s error was harmless where the ALJ
ORDER AFFIRMING THE COMMISSIONER’S
DECISION TO DENY BENEFITS - 18

1 provided one or more invalid reasons for disbelieving a claimant’s testimony, but also provided
2 valid reasons that were supported by the record.” Id. (citations omitted).
3

Here, while the ALJ did err in discrediting Plaintiff based on her findings that Plaintiff’s

4 testimony was inconsistent with her failure to fill her propranolol prescription, her daily activities
5 and the objective medical evidence, the ALJ also provided two valid reasons for discrediting
6 Plaintiff. The ALJ’s specific, cogent reasons supported by substantial evidence are sufficient to
7 support the ALJ’s decision to discredit Plaintiff. As such, the ALJ’s error is harmless. Molina,
8 674 F.3d at 1115; see Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir.
9 2008) (when ALJ provides specific reasons for discounting claimant's credibility, decision may
10 be upheld even if certain reasons were invalid as long as “remaining reasoning and ultimate
11 credibility determination” were supported by substantial evidence (emphasis omitted)).
12
13

CONCLUSION
Based on the foregoing reasons and the relevant record, the Court hereby finds the ALJ

14 properly concluded Plaintiff was not disabled. Accordingly, Defendant’s decision to deny
15 benefits is affirmed pursuant to 42 U.S.C. § 405(g) and this case is dismissed with prejudice.
16

Dated this 10th day of January, 2018.

A

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David W. Christel
United States Magistrate Judge

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ORDER AFFIRMING THE COMMISSIONER’S
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