TANYA LYN MILBOURNE, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant.
Case No. ED CV 15-1440-SP
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
September 28, 2016
TANYA LYN MILBOURNE, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant.
Case No. ED CV 15-1440-SP
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
September 28, 2016
MEMORANDUM OPINION AND ORDER
On July 20, 2015, plaintiff Tanya Lyn Milbourne filed a complaint against defendant, the Commissioner of the Social Security Administration ("Commissioner"), seeking review of a denial of a period of disability and disability insurance benefits ("DIB"). Both plaintiff and defendant have consented to proceed for all purposes before the assigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). The court deems the matter suitable for adjudication without oral argument.
Plaintiff presents one issues for decision, whether the Administrative Law
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Judge ("ALJ") properly considered plaintiff's credibility. Memorandum in Support of Plaintiff's Complaint ("P. Mem. ") at 3-16; Memorandum in Support of Defendant's Answer ("D. Mem. ") at 3-10.
Having carefully studied the parties' papers, the Administrative Record ("AR"), and the decision of the ALJ, the court concludes that, as detailed herein, the ALJ did not err in considering plaintiff's credibility. Consequently, the court affirms the decision of the Commissioner denying benefits.
Plaintiff, who was fifty-three years old on her alleged disability onset date, has a college degree in criminal justice and a master's degree in social work. AR at 30, 220, 225. Her past relevant work was as a social service worker, correctional counselor, and case worker. Id. at 64-66, 99, 225, 231-239.
On August 21, 2012 plaintiff filed an application for a period of disability and DIB, alleging an onset date of June 7, 2011, due to carpal tunnel in both hands, bulging disc, severe back pain, left leg numbness and burning, burning painful feet, and diabetes. Id. at 91, 101, 168-69, 224, 227, 261. The Commissioner denied plaintiff's applications initially and upon reconsideration, after which plaintiff filed a request for a hearing. Id. at 91-110, 115-16.
On November 13, 2013, plaintiff, represented by an attorney, appeared and testified at a hearing before the ALJ. Id. at 27-64, 69-70. The ALJ also heard testimony from vocational expert Gloria Lasoff. Id. at 62-68, 70-79. On December 23, 2013, the ALJ denied plaintiff's claim for benefits. Id. at 11-22.
Applying the well-known five-step sequential evaluation process, the ALJ found, at step one, that plaintiff had not engaged in substantial gainful activity since June 7, 2011, the alleged onset date. Id. at 13.
At step two, the ALJ found plaintiff suffered from the following severe impairments: lumbar strain/sprain; degenerative disc disease of the lumbar spine;
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and bilateral carpal tunnel syndrome, status post right carpal tunnel release. Id. The ALJ additionally found plaintiff's diabetes mellitus, probable diabetic neuropathy, diverticulitis, obesity, and sleep apnea were not severe impairments. Id. at 13-15.
At step three, the ALJ found that plaintiff's impairments, whether individually or in combination, did not meet or medically equal one of the listed impairments set forth in 20 C. F. R. part 404, Subpart P, Appendix 1 ("Listing"). Id. at 15.
The ALJ then assessed plaintiff's residual functional capacity ("RFC"), and determined plaintiff had the RFC to perform a range of light work, with the limitations that she could: lift or carry twenty pounds occasionally and ten pounds frequently; stand or walk for six hours out of an eight-hour workday with normal breaks; sit for six hours out of an eight-hour workday with normal breaks; occasionally climb ramps or stairs, but could not climb ladders, ropes, and scaffolds; occasionally balance, stoop, kneel, crouch, and crawl; perform frequent gripping and grasping, but no power gripping; and could not carry or use a firearm. Id. at 16.
The ALJ found, at step four, that plaintiff could perform her past relevant work as a social worker and a case worker. Id. at 21-22. Consequently, the ALJ concluded plaintiff did not suffer from a disability as defined by the Social Security Act ("Act" or "SSA"). Id. at 22.
Plaintiff filed a timely request for review of the ALJ's decision, which was denied by the Appeals Council. Id. at 1-3, 5-7. The ALJ's decision stands as the
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final decision of the Commissioner.
This court is empowered to review decisions by the Commissioner to deny benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security Administration must be upheld if they are free of legal error and supported by substantial evidence. Mayes v. Massanari 276 F. 3d 453, 458-59 (9th Cir. 2001) (as amended). But if the court determines that the ALJ's findings are based on legal error or are not supported by substantial evidence in the record, the court may reject the findings and set aside the decision to deny benefits. Aukland v. Massanari 257 F. 3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter 242 F. 3d 1144, 1147 (9th Cir. 2001).
"Substantial evidence is more than a mere scintilla, but less than a preponderance. " Aukland 257 F. 3d at 1035. Substantial evidence is such "relevant evidence which a reasonable person might accept as adequate to support a conclusion. " Reddick v. Chater 157 F. 3d 715, 720 (9th Cir. 1998); Mayes 276 F. 3d at 459. To determine whether substantial evidence supports the ALJ's finding, the reviewing court must review the administrative record as a whole, "weighing both the evidence that supports and the evidence that detracts from the ALJ's conclusion. " Mayes 276 F. 3d at 459. The ALJ's decision "'cannot be affirmed simply by isolating a specific quantum of supporting evidence. '" Aukland 257 F. 3d at 1035 (quoting Sousa v. Callahan 143 F. 3d 1240, 1243 (9th Cir. 1998)). If the evidence can reasonably support either affirming or reversing the ALJ's decision, the reviewing court "'may not substitute its judgment for that of the ALJ. '" Id. (quoting Matney v. Sullivan 981 F.2d 1016 1018 (9th Cir. 1992)).
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Plaintiff contends the ALJ failed to make a proper credibility determination. P. Mem. at 3-16. Specifically, plaintiff contends the ALJ failed to provide clear and convincing reasons for discounting plaintiff's credibility. The court disagrees.
An ALJ must make specific credibility findings, supported by the record. Social Security Ruling ("SSR") 96-7p. To determine whether testimony concerning symptoms is credible, the ALJ engages in a two-step analysis. Lingenfelter v. Astrue 504 F. 3d 1028, 1035-36 (9th Cir. 2007). First, the ALJ must determine whether a claimant produced objective medical evidence of an underlying impairment "'which could reasonably be expected to produce the pain or other symptoms alleged. '" Id. at 1036 (quoting Bunnell v. Sullivan 947 F.2d 341 344 (9th Cir. 1991) (en banc)). Second, if there is no evidence of malingering, an "ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so. " Smolen v. Chater 80 F. 3d 1273, 1281 (9th Cir. 1996) (citation omitted); accord Burrell v. Colvin 775 F. 3d 1133, 1136 (9th Cir. 2014).
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"An ALJ does not provide specific, clear, and convincing reasons for rejecting a claimant's testimony by simply reciting the medical evidence in support of his or her residual functional capacity determination. " Brown-Hunter v. Colvin 806 F. 3d 487, 489 (9th Cir. 2015). To permit a meaningful review of the ALJ's credibility determination, the ALJ must "specify which testimony he finds not credible, and then provide clear and convincing reasons, supported by evidence in the record, to support that credibility determination. " Id. The ALJ may consider several factors in weighing a claimant's credibility, including: ordinary techniques of credibility evaluation such as a claimant's reputation for lying; the failure to seek treatment or follow a prescribed course of treatment; and a claimant's daily activities. Tommasetti v. Astrue 533 F. 3d 1035, 1039 (9th Cir. 2008); Bunnell 947 F.2d at 346-47. The ALJ may additionally consider "inconsistencies either in claimant's testimony or between her testimony and her conduct" and "testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which she complains. " Light v. Soc. Sec. Admin 119 F. 3d 789, 792 (9th Cir. 1997).
At the first step, the ALJ found plaintiff's medically determinable impairments could reasonably be expected to cause the symptoms alleged. AR at 17. At the second step, because he did not find any evidence of malingering, the ALJ was required to provide clear and convincing reasons for finding plaintiff less credible. Id. Here, the ALJ discounted plaintiff's credibility because: (1) plaintiff's "allegations are greater than expected in light of the objective evidence of record" (id. ); (2) plaintiff "retains the ability to perform activities of daily living that is inconsistent with those of a disabled individual" (id. ); and (3) plaintiff received an "overall conservative course of treatment. " Id. at 20; see id. at 17-21.
As an initial matter, contrary to plaintiff's contention (P. Mem. at 5), the ALJ specified those portions of plaintiff's testimony that he found lacking in
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credibility:
AR at 16-17.
The ALJ's first ground for an adverse credibility finding was the lack of support for plaintiff's subjective complaints in the objective medical evidence. Id. An ALJ "may not reject a claimant's subjective complaints based solely on a lack of objective medical evidence to fully corroborate the alleged severity of pain, " but lack of objective medical evidence may be one factor used to evaluate credibility. Bunnell 947 F.2d at 345; see Rollins v. Massanari 261 F. 3d 853, 856-57 (9th Cir. 2001) (asserting a lack of corroborative objective medical evidence may be one factor in evaluating credibility). Here, plaintiff's main complaints involve back and leg pain resulting from a slip and fall injury she sustained at work on June 7, 2011, and pain resulting from carpal tunnel syndrome. AR at 16-17; see id. at 49-62; P. Mem. at 7-15.
The ALJ noted a large portion of plaintiff's medical records were created in the context of her Workers' Compensation claim, and distinguished the requirements for a finding of disability under the two systems. AR at 17. The
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ALJ noted plaintiff's physician, Dr. Michael Roach, reported her back symptoms were relatively mild as early as one month after her accident. Id. at 18; see id. at 339. By January 2012, plaintiff reported an 80% overall improvement in her symptoms. Id. at 18, 420. Plaintiff underwent right carpal tunnel release surgery and epineurolysis of the median nerve in February 2012. Id. at 18, 439. By her May 2012 evaluation, plaintiff had a full range of motion in her right wrist with no obvious motor or sensory deficit. Id. at 18-19, 487. The ALJ thus concluded plaintiff "responded well to the release surgery and could use her right upper extremity" within the assessed RFC. Id. at 19.
In August 2012, after plaintiff had returned to work, plaintiff failed to qualify for the weapon certification required for her past employment, and so was terminated from that job. Id. at 19, 32-33, 44, 54, 286, 289, 703. Plaintiff experienced increased pain in her right hand and wrist from gripping the weapon while attempting to fire. Id. at 19, 209. One month after this incident plaintiff had a normal physical examination during which her back was noted as stable and her right hand was doing well. Id. 19, 534; see also id. at 704 (recording plaintiff's "pain and symptoms are getting better" in October 2012 and recommending "only observation. No aggressive treatment at this time"). During plaintiff's consultative exam in July 2013, she rated her hand pain as a three of ten, described her leg pain as moderate, her foot pain as mild, and, as the ALJ specifically noted, she did not complain of any back pain. Id. at 19, 1030; see id. at 1041 (noting treating physician recorded similarly moderate complaints in January 2013).
The ALJ found the consultative examining physician's opinion of plaintiff's capabilities to be "somewhat overly optimistic. " Id. at 20. Despite "the largely benign objective medical record" the ALJ reduced plaintiff's RFC below that opined by her treating and examining physicians, in part due to plaintiff's subjective complaints. Id. at 20. The ALJ gave great weight to the
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agency consultant's reviewing opinion that plaintiff could perform only light work. Id.
Although the ALJ discounted plaintiff's subjective complaints, he did so to a far lesser degree than plaintiff's own treating physician and the consultative examining physician. The ALJ nonetheless did discount plaintiff's complaints, in part because he found them greater than expected from the objective medical evidence. Based on the evidence recounted by the ALJ, as set forth above, this was a clear and convincing reason supported by substantial evidence in the record.
The ALJ's second ground for an adverse credibility finding was that plaintiff's activities of daily living "suggest that she would be capable of performing work. " AR at 17. The ALJ reviewed the testimony and found plaintiff:
Id. (internal citations omitted); see id. at 516; 904, 1030.
Plaintiff argues that although she testified about being capable of engaging in certain limited activities of daily living for brief intervals of time (see AR at 50), her reported daily activities do not undermine her subjective complaints
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because she also testified she requires frequent rest periods in a reclined position with her feet up. P. Mem. at 15; see AR at 61; Vertigan v. Halter 260 F. 3d 1044, 1050 (9th Cir. 2001) ("The mere fact that a plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or limited walking for exercise, does not in any way detract from her credibility as to her overall disability. "); Fair v. Bowen 885 F.2d 597, 603 (9th Cir. 1989) ("Many home activities are not easily transferable to what may be the more grueling environment of the workplace, where it might be impossible to periodically rest or take medication. "). But plaintiff's actual testimony was far more equivocal.
As the ALJ noted, plaintiff alleges totally disabling back pain, but "admitted that sometimes the pain was tolerable. " AR at 16; see id. at 49 ("My back always aches . . . . Some days it's good"). Plaintiff indicated she might be able to "to sit, stand and walk for up to six hours" but "she did not know how she would feel if she persisted" with this level of exertion over an extended period. Id. at 17, 52-53, 61-62 (questioning whether plaintiff was really limited in her ability to sit or if she was just hesitant to push herself because she might not be able to persist at it). When more than one inference can reasonably be drawn from the record, this court will "'not substitute its judgment for that of the ALJ. '" Aukland 257 F. 3d at 1035 (quoting Matney 981 F.2d at 1018).
Plaintiff's ability to independently bathe, dress, groom and maintain hygiene, walk, climb stairs, eat, manage money, monitor her medication, drive, shop, and cook (AR at 1029), notwithstanding her testimony about requiring naps, is inconsistent with her subjective complaints of totally disabling pain. See id. at 17. The cited inconsistency between plaintiff's daily activities and her alleged symptoms was a clear and convincing reason for finding her less than fully credible. See Tommasetti 533 F. 3d at 1039 (inconsistency between a claimant's alleged symptoms and her daily activities may be a clear and convincing reason to find a claimant less credible); Bunnell 947 F.2d at 346-47
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(same).
In addition, the ALJ convincingly pointed to other inconsistencies in plaintiff's testimony. Plaintiff "mentioned she had sleep apnea and she had difficulty with concentration and focus due to fatigue, " but she indicated she was not using her prescribed CPAP machine despite the aid oxygen provided because of discomfort from the mask (id. at 17, 59-60), and at the hearing she "did not demonstrate or manifest any difficulty concentrating . . . followed the lines of questioning . . . and responded to the questions appropriately and without delay. " Id. at 21; see id. at 60-61 (confirming with plaintiff's attorney "there is nothing in the medical evidence showing difficulty concentrating"); SSR 96-7p ("the adjudicator may also consider his or her own recorded observations of the individual as part of the overall evaluation of the credibility"); Thomas v. Barnhart 278 F. 3d 947, 960 (9th Cir. 2002).
The ALJ's third main ground for an adverse credibility finding was the conservative course of treatment plaintiff received for her impairments. Id. at 19-20. The ALJ found "most significantly, plaintiff has remained on Ibuprofen for pain and she is no longer taking Soma or other similar drugs for nerve pain. " Id. at 19; see id. at 62. She reported only taking the prescription Ibuprofen "on and off" as required for her pain. Id. Plaintiff also testified she did "not wear supportive races for her hands and wrist. " Id. at 20; see id. at 62. The ALJ found "this course of treatment suggests plaintiff's symptoms were, and continue to be, well-controlled with conservative means before and after her right carpal tunnel release procedure. " Id. at 20; see Parra v. Astrue 481 F. 3d 742, 750-51 (9th Cir. 2007) ("evidence of 'conservative treatment' is sufficient to discount a claimant's testimony regarding severity of an impairment") (citation omitted); John v. Shalala 60 F. 3d 1428, 1434 (9th Cir. 1995) (reasoning "conservative treatment" is indicative of "a lower level of both pain and functional limitation").
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Plaintiff argues the ALJ failed to mention the observation of one agency employee who recorded the difficulty plaintiff had writing her name. P. Mem. at 6; see AR at 221 (noting plaintiff "had some difficulty writing her name"). But an "ALJ is not required to discuss evidence that is neither significant nor probative. " Howard v. Barnhart , 341 F. 3d 1006, 1012 (9th Cir. 2003). As the ALJ noted, plaintiff did not pursue or request more aggressive treatment for her carpal tunnel. Id. at 19-20; see Meanel v. Apfel 172 F. 3d 1111, 1114 (9th Cir. 1999) (discrediting claimant because of his "failure to request, any serious medical treatment for this supposedly excruciating" impairment); SSR 96-7p ("the plaintiff's statements may be less credible if the level or frequency of treatment is inconsistent with the level of complaints").
In sum, the ALJ provided clear and convincing reasons for discounting plaintiff's credibility, including lack of support in the medical records, her conservative course of treatment, and her inconsistent daily activities. Thus the ALJ did not err in finding plaintiff not entirely credible.
IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits, and dismissing the complaint with prejudice.
DATED: September 28, 2016
/s/_________ SHERI PYM United States Magistrate Judge
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Footnotes:
Residual functional capacity is what a claimant can do despite existing exertional and nonexertional limitations. Cooper v. Sullivan 880 F.2d 1152, 1155-56 n. 5-7 (9th Cir. 1989). "Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant's residual functional capacity. " Massachi v. Astrue 486 F. 3d 1149, 1151 n. 2 (9th Cir. 2007).
"The Commissioner issues Social Security Rulings to clarify the Act's implementing regulations and the agency's policies. SSRs are binding on all components of the SSA. SSRs do not have the force of law. However, because they represent the Commissioner's interpretation of the agency's regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations. " Holohan v. Massanari 246 F. 3d 1195, 1203 n. 1 (9th Cir. 2001) (internal citations omitted).
Defendant suggests the ALJ was only required to provide specific reasons supported by substantial evidence, rather than clear and convincing reasons. D. Mem. at 4-5. But the Ninth Circuit has explicitly rejected that argument. See Burrell 775 F. 3d at 1136-37. Accordingly, this court applies the clear and convincing standard.
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Footnotes:
Residual functional capacity is what a claimant can do despite existing exertional and nonexertional limitations. Cooper v. Sullivan 880 F.2d 1152, 1155-56 n. 5-7 (9th Cir. 1989). "Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant's residual functional capacity. " Massachi v. Astrue 486 F. 3d 1149, 1151 n. 2 (9th Cir. 2007).
"The Commissioner issues Social Security Rulings to clarify the Act's implementing regulations and the agency's policies. SSRs are binding on all components of the SSA. SSRs do not have the force of law. However, because they represent the Commissioner's interpretation of the agency's regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations. " Holohan v. Massanari 246 F. 3d 1195, 1203 n. 1 (9th Cir. 2001) (internal citations omitted).
Defendant suggests the ALJ was only required to provide specific reasons supported by substantial evidence, rather than clear and convincing reasons. D. Mem. at 4-5. But the Ninth Circuit has explicitly rejected that argument. See Burrell 775 F. 3d at 1136-37. Accordingly, this court applies the clear and convincing standard.
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