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Jurisdiction: California Central District Court
Decision Date: 10/28/2014

STATES

                                                                                                                                                                                                                                                                                                                                                                                                                            FEDERAL

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Traylor v. Colvin Traylor v. Colvin (C.D. Cal., 2014)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        LYNDA FAYE TRAYLOR, Plaintiff,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        v.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Case No. EDCV 14-1091 JC

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        October 28, 2014

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        LYNDA FAYE TRAYLOR, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Case No. EDCV 14-1091 JC

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        October 28, 2014

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        MEMORANDUM OPINION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        I. SUMMARY

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                On June 4, 2014, plaintiff Lynda Faye Traylor ("plaintiff") filed a Complaint seeking review of the Commissioner of Social Security's denial of plaintiff's application for benefits. The parties have consented to proceed before the undersigned United States Magistrate Judge.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                This matter is before the Court on the parties' cross motions for summary judgment, respectively ("Plaintiff's Motion") and ("Defendant's Motion"). The Court has taken both motions under submission without oral argument. See Fed. R. Ci v. P. 78; L. R. 7-15; June 9, 2014 Case Management Order 5.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 2

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Based on the record as a whole and the applicable law, the decision of the Commissioner is AFFIRMED. The findings of the Administrative Law Judge ("ALJ") are supported by substantial evidence and are free from material error.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                On September 22, 2011, plaintiff filed an application for Disability Insurance Benefits. (Administrative Record ("AR") 15, 120). Plaintiff asserted that she became disabled on January 6, 2007, due to diabetes, chronic back pain, weak legs, numbness in the fingers of right and left hands, right thumb problems, right side rib pain, weak arms, arthritis, and carpal tunnel syndrome. (AR 15, 191). The ALJ examined the medical record and heard testimony from plaintiff (who was represented by counsel) and a vocational expert on April 9, 2013. (AR 27-52).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                On May 2, 2013, the ALJ determined that plaintiff was not disabled through the date of the decision. (AR 15-22). Specifically, the ALJ found: (1) plaintiff suffered from the following severe impairments: degenerative disc disease and arthritis (AR 17); (2) plaintiff's impairments, considered singly or in combination, did not meet or medically equal a listed impairment (AR 17); (3) plaintiff retained the residual functional capacity to perform light work (20 C. F. R. § 404. 1567(b)) with additional limitations (AR 18); (4) plaintiff could perform her past relevant work as a childcare worker and case aide (AR 20); (5) alternatively, there are jobs

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        that exist in significant numbers in the national economy that plaintiff could perform, specifically general cashier, housekeeping cleaner, and cafeteria attendant (AR 21); and (6) plaintiff's allegations regarding her limitations were not credible to the extent they were inconsistent with the ALJ's residual functional capacity assessment (AR 19).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The Appeals Council denied plaintiff's application for review. (AR 1).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        III. APPLICABLE LEGAL STANDARDS

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                A. Sequential Evaluation Process

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                To qualify for disability benefits, a claimant must show that the claimant is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. " Molina v. Astrue 674 F. 3d 1104, 1110 (9th Cir. 2012) (quoting 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted). The impairment must render the claimant incapable of performing the work the claimant previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel 180 F. 3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                In assessing whether a claimant is disabled, an ALJ is to follow a five-step sequential evaluation process:

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Stout v. Commissioner, Social Security Administration 454 F. 3d 1050, 1052 (9th Cir. 2006) (citing 20 C. F. R. §§ 404. 1520, 416. 920); see also Molina 674 F. 3d at 1110 (same).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five. Bustamante v. Massanari 262 F. 3d 949, 953-54 (9th Cir. 2001) (citing Tackett 180 F. 3d at 1098); see also Burch v. Barnhart 400 F. 3d 676, 679 (9th Cir. 2005) (claimant carries initial burden of proving disability).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                B. Standard of Review

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of benefits only if it is not supported by substantial evidence or if it is based on legal error. Robbins v. Social Security Administration 466 F. 3d 880, 882 (9th Cir. 2006) (citing Flaten v. Secretary of Health & Human Services 44 F. 3d 1453, 1457 (9th Cir. 1995)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. " Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a mere scintilla but less than a preponderance. Robbins 466 F. 3d at 882 (citing Young v. Sullivan 911 F.2d 180, 183 (9th Cir. 1990)).

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                To determine whether substantial evidence supports a finding, a court must "'consider the record as a whole, weighing both evidence that supports and evidence that detracts from the Commissioner's conclusion. '" Aukland v. Massanari 257 F. 3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F. 3d 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming or reversing the ALJ's conclusion, a court may not substitute its judgment for that of the ALJ. Robbins 466 F. 3d at 882 (citing Flaten 44 F. 3d at 1457).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        IV. DISCUSSION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Plaintiff contends that a remand or reversal is required because the ALJ inadequately evaluated the credibility of her subjective complaints. (Plaintiff's Motion at 4-11). The Court disagrees.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                A. Pertinent Law

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                An ALJ is not required to believe every allegation of disabling pain or other non-exertional impairment. Orn v. Astrue 495 F. 3d 625, 635 (9th Cir. 2007) (citing Fair v. Bowen 885 F.2d 597, 603 (9th Cir. 1989)). "To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must engage in a two-step analysis. " Lingenfelter v. Astrue, 504 F. 3d 1028, 1035-36 (9th Cir. 2007). "First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment 'which could reasonably be expected to produce the pain or other symptoms alleged. '" Id. (quoting Bunnell v. Sullivan 947 F.2d 341 344 (9th Cir. 1991) (en banc)).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                "Second, if the claimant meets this first test, and there is no evidence of malingering, 'the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so. '" Id. at 1036 (citations omitted). "In making a credibility determination, the ALJ 'must specifically identify what testimony is credible and what testimony undermines the claimant's complaints. '" Greger v. Barnhart 464 F. 3d 968, 972 (9th Cir. 2006) (citation omitted). The ALJ's credibility findings "must be

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        sufficiently specific to allow a reviewing court to conclude the ALJ rejected the claimant's testimony on permissible grounds and did not arbitrarily discredit the claimant's testimony. " Moisa v. Barnhart 367 F. 3d 882, 885 (9th Cir. 2004).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                To find a claimant not credible, an ALJ must rely either on reasons unrelated to the subjective testimony (e. g reputation for dishonesty), internal contradictions in the claimant's statements and testimony, or conflicts between the claimant's testimony and the claimant's conduct (e. g daily activities, work record, unexplained or inadequately explained failure to seek treatment or to follow prescribed course of treatment). Orn, 495 F. 3d at 636; Robbins 466 F. 3d at 883; Burch 400 F. 3d at 680-81; Social Security Ruling 96-7p. Although an ALJ may not disregard a claimant's testimony solely because it is not substantiated affirmatively by objective medical evidence, the lack of medical evidence is a factor that the ALJ can consider in his or her credibility assessment. Burch 400 F. 3d at 681.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Questions of credibility and resolutions of conflicts in the testimony are functions solely of the Commissioner. Greger 464 F. 3d at 972. Accordingly, if the ALJ's interpretation of the claimant's testimony is reasonable and is supported by substantial evidence, it is not the court's role to "second-guess" it. Rollins v. Massanari 261 F. 3d 853, 857 (9th Cir. 2001) (citation omitted).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                B. Analysis

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                First, the ALJ properly discounted the credibility of plaintiff's subjective complaints as inconsistent with evidence that plaintiff worked after her alleged

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        onset date. See, e. g. Orn 495 F. 3d at 639 ("A claimant's daily activities may be grounds for an adverse credibility finding 'if the claimant is able to spend a substantial part of her day engaged in pursuits involving the performance of physical functions that are transferable to a work setting. '") (citations omitted); Burch v. Barnhart 400 F. 3d 676, 681 (9th Cir. 2005) ("If a claimant engages in numerous daily activities involving skills that could be transferred to the workplace, the ALJ may discredit the claimant's allegations upon making specific findings relating to those activities. "). For example, as the ALJ noted, despite her alleged onset date of January 6, 2007, plaintiff reported that she engaged in substantial gainful activity in 2007 ($23, 731. 31 in earnings) and 2008 ($11, 924. 96 in earnings). (AR 17, 20) (citing Exhibit 10D at 2 AR 170; Exhibit 4E at 1 AR 198). Moreover, at the hearing, plaintiff testified that she had worked full time at a retirement home in 2010, and later worked part time from January to May 2011 doing "in-home care. " (AR 18, 20, 32-33). Contrary to plaintiff's suggestion, the ALJ did not "completely discard plaintiff's claim. " (Plaintiff's Motion at 8) (emphasis added). Instead, the ALJ reasonably concluded that plaintiff's ability to work (sometimes on a full-time basis) during the alleged period of disability was inconsistent with the alleged severity of plaintiff's subjective symptoms. See Verduzco v. Apfel188 F. 3d 1087, 1090 (9th Cir. 1999) (inconsistencies between claimant's testimony and actions cited as a clear and convincing reason for rejecting the claimant's testimony). To the extent plaintiff suggests that her multiple months of employment during her alleged period of disability is not probative of lack of credibility, the Court will not second guess the ALJ's reasonable determination to the contrary, even if such evidence could give rise to inferences more favorable to plaintiff. Rollins 261 F. 3d at 857 (citation omitted).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Second, the ALJ properly discredited plaintiff's subjective complaints, in part, due to internal conflicts within plaintiff's own statements and testimony. See Light v. Social Security Administration 119 F. 3d 789, 792 (9th Cir. ), as amended

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        (1997) (in weighing plaintiff's credibility, ALJ may consider "inconsistencies either in plaintiff's testimony or between his testimony and his conduct"); see also Fair 885 F.2d at 604 n. 5 (ALJ can reject pain testimony based on contradictions in plaintiff's testimony). For example, as the ALJ noted, contrary to plaintiff's claim that she was disabled, in part, due to diabetes, plaintiff told the state-agency examining physician that her diabetes had been "treated and controlled" for five years. (AR 19-20; compare AR 191 with AR 368).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Finally, the ALJ properly discredited plaintiff's subjective symptom testimony due, in part, to the absence of supporting objective medical evidence. Burch 400 F. 3d at 681; Rollins 261 F. 3d at 857 ("While subjective pain testimony cannot be rejected on the sole ground that it is not fully corroborated by objective medical evidence, the medical evidence is still a relevant factor in determining the severity of the claimant's pain and its disabling effects. ") (citation omitted). For example, as the ALJ noted, despite plaintiff's complaints of numbness in her fingers, plaintiff admitted, and the medical evidence reflects, that plaintiff's diabetes was stable with medication. (AR 19-20, 368) (citing Exhibit 2F at 5, 14, 25, 32, 40, 54, 63 AR 291, 300, 311, 318, 326, 340, 349; Exhibit 7F at 16, 25 AR 437, 446); see, e. g. Warre v. Commissioner of Social Security Administration 439 F. 3d 1001, 1006 (9th Cir. 2006) ("Impairments that can be controlled effectively with medication are not disabling for the purpose of determining eligibility for SSI benefits. ") (citations omitted). As the ALJ also noted, both the state-agency examining physician and the medical consultant found plaintiff able to do light work, which was consistent with the examining physician's independent examination of plaintiff and plaintiff's medical records as a whole. (AR 19-20; AR 368-73 state-agency examining physician; AR 375-82 state-agency reviewing physician) (citing Exhibit 1F at 16, 21, 29-30, 50-52 AR

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        248, 253, 261-62, 282-84; Exhibit 2F at 9, 29 AR 295, 315; Exhibit 7F at 9, 11-12 AR 430, 432-33).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Accordingly, a remand or reversal on this basis is not warranted.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        V. CONCLUSION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                For the foregoing reasons, the decision of the Commissioner of Social Security is affirmed.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                LET JUDGMENT BE ENTERED ACCORDINGLY.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        DATED: October 28, 2014

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                /s/_________        Honorable Jacqueline Chooljian        UNITED STATES MAGISTRATE JUDGE

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Footnotes:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 The harmless error rule applies to the review of administrative decisions regarding disability. See Molina v. Astrue 674 F. 3d 1104, 1115-22 (9th Cir. 2012) (discussing contours of application of harmless error standard in social security cases) (citing, inter alia Stout v. Commissioner, Social Security Administration 454 F. 3d 1050, 1054-56 (9th Cir. 2006)).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 The ALJ determined that plaintiff could (i) lift and/or carry 20 pounds occasionally and 10 pounds frequently; (ii) sit up to six hours in an eight-hour day; (iii) stand and walk up to six hours total in an eight-hour day; (iv) push and pull as much as lifting and carrying; and (v) frequently handle and finger. (AR 18).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 Although they do not carry the "force of law, " Social Security Rulings are binding on ALJs. See 20 C. F. R. § 402. 35(b)(1); Bray v. Commissioner of Social Security Administration, 554 F. 3d 1219, 1224 (9th Cir. 2009) (citation and internal quotation marks omitted). Such rulings "reflect the official interpretation of the Social Security Administration and are entitled to some deference as long as they are consistent with the Social Security Act and regulations. " Molina 674 F. 3d at 1113 n. 5 (citations and internal quotation marks omitted); Heckler v. Edwards 465 U.S. 870, 873 n. 3 (1984) (discussing weight and function of Social Security rulings).

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Footnotes:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 The harmless error rule applies to the review of administrative decisions regarding disability. See Molina v. Astrue 674 F. 3d 1104, 1115-22 (9th Cir. 2012) (discussing contours of application of harmless error standard in social security cases) (citing, inter alia Stout v. Commissioner, Social Security Administration 454 F. 3d 1050, 1054-56 (9th Cir. 2006)).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 The ALJ determined that plaintiff could (i) lift and/or carry 20 pounds occasionally and 10 pounds frequently; (ii) sit up to six hours in an eight-hour day; (iii) stand and walk up to six hours total in an eight-hour day; (iv) push and pull as much as lifting and carrying; and (v) frequently handle and finger. (AR 18).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 Although they do not carry the "force of law, " Social Security Rulings are binding on ALJs. See 20 C. F. R. § 402. 35(b)(1); Bray v. Commissioner of Social Security Administration, 554 F. 3d 1219, 1224 (9th Cir. 2009) (citation and internal quotation marks omitted). Such rulings "reflect the official interpretation of the Social Security Administration and are entitled to some deference as long as they are consistent with the Social Security Act and regulations. " Molina 674 F. 3d at 1113 n. 5 (citations and internal quotation marks omitted); Heckler v. Edwards 465 U.S. 870, 873 n. 3 (1984) (discussing weight and function of Social Security rulings).

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Cited By
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Cites
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Fair v. Bowen, 885 F.2d 597 (9th Cir., 1989)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Decision Date: 1989-09-13 Citations: 19
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Bunnell v. Sullivan, 947 F.2d 341 (C.A.9 (Wash.), 1991)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Decision Date: 1991-10-01 Citations: 40
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Negative Treatment
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