Diana Helen Diaz v. Nancy A. Berryhill

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 DIANA D.,1 Case No. 5:18-cv-01996-GJS

12 Plaintiff

13 v. MEMORANDUM OPINION AND

ORDER

14 ANDREW M. SAUL, Commissioner

of Social Security,2

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Defendant.

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17 I. PROCEDURAL HISTORY

18 Plaintiff Diana D. (“Plaintiff”) filed a complaint seeking review of the

19 decision of the Commissioner of Social Security denying her application for

20 Disability Insurance Benefits (“DIB”). Pursuant to 28 U.S.C. § 636(c), the parties

21 consented to proceed before the undersigned United States Magistrate Judge and

22 filed briefs addressing the disputed issues in this case. [Dkt. 17 (“Pl. Br.”), Dkt. 21

23 (“Def. Br.”), Dkt. 22 (“Reply”).] The Court has taken the parties’ briefing under

24 submission without oral argument. For the reasons set forth below, the Court

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26 1 In the interest of privacy, this Order uses only the first name and the initial of

the last name of the non-governmental party in this case.

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2 Andrew M. Saul, now Commissioner of the Social Security Administration, is

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substituted as defendant for Nancy A. Berryhill. See Fed. R. Civ. P. 25(d).

1 affirms the decision of the ALJ and orders that judgment be entered accordingly.

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3 II. ADMINISTRATIVE DECISION UNDER REVIEW

4 On October 24, 2014, Plaintiff filed an application for DIB alleging disability

5 beginning May 14, 2010. [Dkt. 14, Administrative Record (“AR”) 145-147.] In

6 both applications, Plaintiff stated that she became disabled and unable to work due

7 to her physical impairments. Defendant denied her application on initial review and

8 reconsideration, and Plaintiff was found not disabled by an Administrative Law

9 Judge (“ALJ”) in a September 20, 2017 decision. [AR 15-23.] Plaintiff sought

10 review of the ALJ’s decision, which was denied. The present case before the Court

11 followed.

12 As relevant here, ALJ’s decision under review found that Plaintiff had severe

13 impairments including pancreatitis, cervical spine degenerative disc disease, lumbar

14 spine degenerative disc disease, hernia, and obesity. [AR 17.] The ALJ then found

15 that Plaintiff did not have an impairment or combination of impairments that met or

16 medically equaled a listed impairment. [AR 17.] Based on her impairments, the

17 ALJ found that Plaintiff had the Residual Functional Capacity (“RFC”) to perform

18 the full range of light work as defined in 20 CFR 404.1567(b). [AR 19.]

19 The ALJ then determined that Plaintiff could perform her past relevant work

20 and therefore she was not under a disability through her date last insured. [AR 22-

21 23.]

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23 III. GOVERNING STANDARD

24 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to

25 determine if: (1) the Commissioner’s findings are supported by substantial

26 evidence; and (2) the Commissioner used correct legal standards. See Carmickle v.

27 Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Brewes v. Comm’r

28 Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012) (internal citation omitted).

1 “Substantial evidence is more than a mere scintilla but less than a preponderance; it

2 is such relevant evidence as a reasonable mind might accept as adequate to support a

3 conclusion.” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir.

4 2014) (internal citations omitted).

5 The Court will uphold the Commissioner’s decision when the evidence is

6 susceptible to more than one rational interpretation. See Molina v. Astrue, 674 F.3d

7 1104, 1110 (9th Cir. 2012). However, the Court may review only the reasons stated

8 by the ALJ in his decision “and may not affirm the ALJ on a ground upon which he

9 did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court will not

10 reverse the Commissioner’s decision if it is based on harmless error, which exists if

11 the error is “inconsequential to the ultimate nondisability determination, or if despite

12 the legal error, the agency’s path may reasonably be discerned.” Brown-Hunter v.

13 Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations

14 omitted).

15 IV. DISCUSSION

16 Appealing the Commissioner’s decision to deny her application for benefits,

17 Plaintiff argues the ALJ erred in his evaluation of her subjective complaints,

18 specifically that she could not complete a full work day due to her chronic

19 pancreatitis. (Doc. 15 at 16-26.). According to Plaintiff, because “she has to lie

20 down more than half the day,” she cannot complete her past relevant work as

21 determined by the ALJ. Therefore, the sole issue in dispute is whether the ALJ

22 properly evaluated Plaintiff’s subjective symptom testimony.

23 A. Legal Standard

24 Where, as here, the ALJ finds that a claimant suffers from a medically

25 determinable physical or mental impairment that could reasonably be expected to

26 produce her alleged symptoms, the ALJ must evaluate “the intensity and persistence

27 of those symptoms to determine the extent to which the symptoms limit an

28 individual’s ability to perform work-related activities for an adult ....” Soc. Sec.

1 Ruling (“SSR”) 16-3p, 2017 WL 5180304, *3.6.

2 A claimant initially must produce objective medical evidence establishing a

3 medical impairment reasonably likely to be the cause of the subjective symptoms.

4 Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Bunnell v. Sullivan, 947 F.2d

5 341, 345 (9th Cir. 1991). Once a claimant produces objective medical evidence of

6 an underlying impairment that could reasonably be expected to produce the pain or

7 other symptoms alleged, and there is no evidence of malingering, the ALJ may

8 reject the claimant’s testimony regarding the severity of his or her pain and

9 symptoms only by articulating specific, clear and convincing reasons for doing so.

10 Brown-Hunter v. Colvin, 798 F.3d 749, 755 (9th Cir. 2015) (citing Lingenfelter v.

11 Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)); see also Smolen, supra; Robbins v.

12 Social Sec. Admin, 466 F.3d 880, 883 (9th Cir. 2006); Reddick v. Chater, 157 F.3d

13 715, 722 (9th Cir. 1998); Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir.

14 1997). Because the ALJ does not find that Plaintiff was malingering, the “clear and

15 convincing” standard stated above applies.

16 Generalized, conclusory findings do not suffice. See Moisa v. Barnhart, 367

17 F.3d 882, 885 (9th Cir. 2004) (the ALJ’s credibility findings “must be sufficiently

18 specific to allow a reviewing court to conclude the [ALJ] rejected [the] claimant’s

19 testimony on permissible grounds and did not arbitrarily discredit the claimant’s

20 testimony”) (citation and internal quotation marks omitted); Holohan v. Massanari,

21 246 F.3d 1195, 1208 (9th Cir. 2001) (the ALJ must “specifically identify the

22 testimony [the ALJ] finds not to be credible and must explain what evidence

23 undermines the testimony”); Smolen, 80 F.3d at 1284 (“The ALJ must state

24 specifically which symptom testimony is not credible and what facts in the record

25 lead to that conclusion.”).

26 B. Plaintiff’s Testimony

27 At the hearing, Plaintiff testified about her impairments including: chronic

28 pancreatitis, neck pain, back pain, and headaches. Plaintiff testified that she was

1 diagnosed with chronic pancreatitis in 2008, approximately two years before her

2 May 14, 2010 disability onset date. [AR 38.] Plaintiff’s pancreatitis causes “a real

3 deep pain in her stomach” and nausea. [AR 38.] To treat her pancreatitis, Plaintiff

4 takes Creon, an enzyme medication, daily, because her body no longer produces

5 enzymes. [AR 39.]

6 When asked about her other impairments, Plaintiff testified that she also

7 suffers from neck pain, back pain, and muscle spasms, but her treatment for those

8 symptoms has been delayed due to her aneurysm diagnosis. In November 2015,

9 Plaintiff was diagnosed with an aneurysm that causes severe headaches, blurred

10 vision and muscle spasms in the back of her head, down to her lower back. [AR

11 42.] Plaintiff has had five endovascular procedures to place coils in her aneurysm in

12 order to reduce its size. [AR 42.] However, because the aneurysm is still growing,

13 Plaintiff may need “open head” surgery in the future. [AR 42.] Plaintiff also suffers

14 from sciatic nerve pain that she cannot relieve due to her ibuprofen allergy. [AR 40-

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16 When asked about her limitations due to her impairments, Plaintiff testified

17 that she has difficulty walking for longer than 20 minutes, difficulty standing and

18 sitting for prolonged periods, and she needs to lie down more than half the day. [AR

19 43-45].

20 C. The ALJ’s Decision Sets Forth At Least One Clear and Convincing

21 Reason for Rejecting Plaintiff’s Credibility

22 With respect to Plaintiff’s “debilitating pancreatitis,” the ALJ initially found

23 that Plaintiff’s allegations were inconsistent with the medical evidence of record.3

24 [AR 19.] Specifically, the ALJ noted that Plaintiff’s “physical examination revealed

25 normal findings” and “a comprehensive metabolic panel” was within normal limits.

26 [AR 19.] The ALJ further observed that treatment records reflected that Plaintiff’s

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3 Plaintiff does not challenge the ALJ’s findings with respect to inconsistency

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with the objective medical evidence.

1 pancreatitis was “generally well controlled” with medications, when Plaintiff “was

2 compliant with taking them as prescribed treatment.” [AR 19.]

3 The Court’s review of the record reveals that the ALJ properly discounted

4 Plaintiff’s testimony about the intensity, persistence and limiting effects of her

5 pancreatitis based on Plaintiff’s consistent and positive to response to her

6 medication, when taken as prescribed. [AR 19, 302-307.] The effectiveness of

7 treatment is a relevant factor in determining the severity of a claimant’s symptoms.

8 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); see also Warre v. Comm’r of Soc. Sec.

9 Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be controlled

10 effectively with medication are not disabling for the purpose of determining

11 eligibility for ... benefits.”). Substantial evidence of effective treatment may provide

12 a specific, clear, and convincing reason to discount a claimant’s subjective symptom

13 testimony. See Youngblood v. Berryhill, 734 F. App’x 496, 499 (9th Cir. 2018)

14 (affirming ALJ decision citing “instances where treatment and medication alleviated

15 [the claimant’s] symptoms” to discount claimant’s testimony).

16 Here, the ALJ set out ample evidence demonstrating that Plaintiff’s

17 impairments were effectively controlled with medication. First, in summarizing

18 Plaintiff’s pancreatitis treatment between 2011 through Plaintiff’s date last insured,

19 December 31, 2014; 4 the ALJ noted that on September 18, 2011, Plaintiff reported

20 to the hospital for evaluation of significant abdominal pain. [AR 19.] Upon

21 admission, Plaintiff acknowledged that she had not been compliant with her

22 medications because she lost her insurance prior to hospitalization. [AR 20, 304-

23 307.] Plaintiff remained in the hospital for four days and her condition improved

24 with treatment. [AR 20, 303.] Plaintiff was restarted on medications and she was

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4 The ALJ read and considered all the medical evidence in the record, including

27 evidence from the period prior to Plaintiff’s alleged onset date. However, the ALJ

concluded that there was no evidence to support any disabling functional limitation

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prior to the Plaintiff’s date last insured. [AR 19.]

1 recommended to follow-up with a gastroenterologist at a clinic after discharge. [AR

2 20.] Plaintiff was hospitalized again on April 1, 2012. [AR 288.] However, her

3 follow-up appointment on April 9, 2012, noted that Plaintiff had presented to the

4 emergency department [on April 1, 2012] with pancreatitis symptoms because she

5 could no longer afford her pancreatitis medications. [AR 420.] Based on this

6 evidence, it was rational for the ALJ to infer that when Plaintiff was hospitalized in

7 2011 and 2012 it was due to the fact that she failed to take her prescribed

8 medications.

9 Plaintiff’s failure to take her medications also resulted in a hospital stay in

10 2013. On May 16, 2013, Plaintiff was directed to continue her use of “Creon and

11 Cholestyramine” for treatment of her pancreatitis. [AR 394.] However, two months

12 later, on July 24, 2013, Plaintiff visited the emergency room with complaints of

13 “epigastric abdominal discomfort and vomiting for the last day.” [AR 402.]

14 Plaintiff was reported as taking “dicyclomine, tramadol, and Creon.” [AR 402.] At

15 her follow-up appointment on December 5, 2013, Plaintiff’s “epigastric pain [was]

16 significantly better.” [AR 401.] The physician noted that Plaintiff is compliant with

17 “Creon and cholestyramine,” but “her pain worsened once she tried to stop

18 cholestyramine.” [AR 401.] This is record evidence, as the ALJ noted that

19 Plaintiff’s symptoms were controlled when Plaintiff took her medication as

20 prescribed. [AR 20.]

21 Indeed, in a series of follow-up appointments, Plaintiff’s epigastric pain was

22 frequently described as: improved while compliant with her medication (AR 386 -

23 May 9, 2013; AR 394 -May 16, 2013); “somewhat improved” (AR 442, September

24 26, 2012); “doing well” (AR 373, August 14, 2013); and “significantly better” (AR

25 401, December 5, 2013).” With only few variations, Plaintiff consistently reported

26 her pancreatitis related pain as “mild” or a 4 out of 10 with her abdominal pain

27 symptoms noted as relieved by pain medication. [AR 371, 382, 439, 442, 447.]

28 Given the weight of this evidence, the ALJ correctly inferred from the

1 longitudinal record that Plaintiff’s symptoms from pancreatitis were generally short

2 lived and medication was effective in controlling her symptoms when she was

3 compliant with prescribed treatment. [AR 19, 21, 354, 357- 359, 363, 371, 373, 388,

4 429, 442.] See Macri v. Charter, 93 F.3d 540, 544 (9th Cir. 1996) (ALJ is entitled

5 to draw inferences logically flowing from the evidence).

6 In rejecting the ALJ’s analysis, Plaintiff argues that the reason her symptoms

7 were well controlled is because she lies down half the day. (Dkt. 17 at 2, 6).

8 However, it appears that Plaintiff attributes her need to nap throughout the day to

9 controlling her headaches and not entirely to ameliorating her pancreatitis

10 symptoms. At the hearing, Plaintiff testified that she was diagnosed with an

11 aneurysm in November 2015 that causes “severe headaches, blurred vision, eye pain

12 and muscle spasms.” [AR 41-42.] The ALJ then asked Plaintiff about her

13 impairment related limitations as follows:

14 [Q]: And do you lie down during the day?

15 [A]: Yes, I do.

16 [Q]: How much of your day do you spend lying down?

17 [A]: Oh, man, half the day.

18 [Q]: And why is that? Why do you feel you need to lie down?

19 [A]: Because of the headaches that I get. They get so severe.

20 [AR 44.]

21 As the ALJ noted, while there was evidence that Plaintiff’s condition did

22 worsen in 2015, when Plaintiff was diagnosed with an aneurysm requiring coil

23 embolization, these records are not within the relevant time period. [AR 19.]

24 Ultimately, the ALJ cited at least one clear and convincing reason for

25 rejecting Plaintiff’s subjective complaints regarding the intensity, duration, and

26 limiting effects of her symptoms. Moreover, the ALJ’s reason was properly

27 supported by the record and sufficiently specific to allow this Court to conclude that

28 the ALJ rejected Plaintiff’s testimony on permissible grounds and did not arbitrarily

1 || discredit Plaintiff's testimony. Accordingly, reversal is not warranted based on the

2 || ALJ’s consideration of Plaintiffs testimony regarding the nature and severity of her

3 || symptoms.

4 Vv. CONCLUSION

5 For all of the foregoing reasons, IT IS ORDERED that the decision of the

6 || Commissioner finding Plaintiff not disabled is AFFIRMED.

7 IT IS SO ORDERED.

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9 || DATED: October 15, 2019

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GAIL J. STANDISH

UNITED STATES MAGISTRATE JUDGE

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