Renee Suzanne Earnest v. Nancy A. Berryhill

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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11 RENEE E.,1 Case No. 8:19-cv-00362-JC

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Plaintiff, MEMORANDUM OPINION

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v.

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15 ANDREW SAUL,2 Commissioner

of Social Security Administration,

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Defendant.

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18 I. SUMMARY

19 On February 25, 2019, plaintiff Renee E. filed a Complaint seeking review

20 of the Commissioner of Social Security’s denial of plaintiff’s applications for

21 benefits. The parties have consented to proceed before the undersigned United

22 States Magistrate Judge.

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1Plaintiff’s name is partially redacted to protect her privacy in compliance with Federal

25 Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court

Administration and Case Management of the Judicial Conference of the United States.

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27 2Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Commissioner Andrew

Saul is hereby substituted for Acting Commissioner Nancy A. Berryhill as the defendant in this

28 action.

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1 This matter is before the Court on the parties’ cross motions for summary

2 judgment, respectively (“Plaintiff’s Motion”) and (“Defendant’s Motion”)

3 (collectively “Motions”). The Court has taken the Motions under submission

4 without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; March 5, 2019 Case

5 Management Order ¶ 5.

6 Based on the record as a whole and the applicable law, the decision of the

7 Commissioner is AFFIRMED. The findings of the Administrative Law Judge

8 (“ALJ”) are supported by substantial evidence and are free from material error.

9 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE

10 DECISION

11 On March 25, 2014 and February 27, 2015, respectively, plaintiff filed

12 applications for Supplemental Security Income and Disability Insurance Benefits,

13 alleging disability beginning on May 1, 2012 due to fibromyalgia, postherpetic

14 neuralgia, severe depression, and chronic fatigue. (Administrative Record (“AR”)

15 176-86, 231). She subsequently alleged that in 2015, the pain in her back and

16 neck and her depression were worse. (AR 270). The ALJ examined the medical

17 record and heard testimony from plaintiff (who was represented by counsel) and a

18 vocational expert. (AR 32-57).

19 On December 4, 2017, the ALJ determined that plaintiff was not disabled

20 through the date of the decision. (AR 18-27). Specifically, the ALJ found:

21 (1) plaintiff suffered from the following severe impairments: fibromyalgia

22 syndrome, postherpetic polyneuropathy, cervical spine degenerative disc disease,

23 and migraine headaches (AR 20); (2) plaintiff’s impairments, considered

24 individually or in combination, did not meet or medically equal a listed

25 impairment (AR 22-23); (3) plaintiff retained the residual functional capacity to

26 perform light work (20 C.F.R. §§ 404.1567(b) and 416.967(b)) with additional

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1 limitations3 (AR 23); (4) plaintiff could perform past relevant work as a sales

2 associate and party sales (AR 26-27); and (5) plaintiff’s statements regarding the

3 intensity, persistence, and limiting effects of her subjective symptoms were not

4 entirely consistent with the medical evidence and other evidence in the record (AR

5 24-26).

6 On December 26, 2018, the Appeals Council denied plaintiff’s application

7 for review. (AR 1-6).

8 III. APPLICABLE LEGAL STANDARDS

9 A. Administrative Evaluation of Disability Claims

10 To qualify for disability benefits, a claimant must show that she is unable

11 “to engage in any substantial gainful activity by reason of any medically

12 determinable physical or mental impairment which can be expected to result in

13 death or which has lasted or can be expected to last for a continuous period of not

14 less than 12 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012)

15 (quoting 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted); 20 C.F.R.

16 §§ 404.1505(a) 416.905. To be considered disabled, a claimant must have an

17 impairment of such severity that she is incapable of performing work the claimant

18 previously performed (“past relevant work”) as well as any other “work which

19 exists in the national economy.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.

20 1999) (citing 42 U.S.C. § 423(d)).

21 To assess whether a claimant is disabled, an ALJ is required to use the five-

22 step sequential evaluation process set forth in Social Security regulations. See

23 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th

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25 3The ALJ determined that plaintiff (i) could lift and carry 20 pounds occasionally and ten

pounds frequently; (ii) could stand and walk six out of eight hours a day; (iii) could sit six out of

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eight hours a day; (iv) could occasionally climb ramps, stairs, ladders, ropes, or scaffolds;

27 (v) could occasionally balance, stoop, kneel, crouch, or crawl; (vi) would need to avoid

concentrated exposure to extreme cold or heat; and (vii) would need to avoid concentrated

28 exposure to hazards. (AR 23).

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1 || Cir. 2006) (describing five-step sequential evaluation process) (citing 20 C.F.R. §§

2 || 404.1520, 416.920). The claimant has the burden of proof at steps one through

3 || four — i.e., determination of whether the claimant was engaging in substantial

4 || gainful activity (step 1), has a sufficiently severe impairment (step 2), has an

5 || impairment or combination of impairments that meets or medically equals one of

6 || the conditions listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“Listings”)

7 || (step 3), and retains the residual functional capacity to perform past relevant work

8 || (step 4). Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citation omitted).

9 || The Commissioner has the burden of proof at step five —i.e., establishing that the

10 | claimant could perform other work in the national economy. Id.

11 B. Federal Court Review of Social Security Disability Decisions

12 A federal court may set aside a denial of benefits only when the

13 || Commissioner’s “final decision” was “based on legal error or not supported by

14 || substantial evidence in the record.” 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871

15 | F.3d 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). The

16 || standard of review in disability cases is “highly deferential.” Rounds v.

17 || Commissioner of Social Security Administration, 807 F.3d 996, 1002 (9th Cir.

18 || 2015) (citation and quotation marks omitted). Thus, an ALJ’s decision must be

19 || upheld if the evidence could reasonably support either affirming or reversing the

20 || decision. Trevizo, 871 F.3d at 674-75 (citations omitted). Even when an ALJ’s

21 || decision contains error, it must be affirmed if the error was harmless. See

22 || Treichler v. Commissioner of Social Security Administration, 775 F.3d 1090,

23 | 1099 (9th Cir. 2014) (ALJ error harmless if (1) inconsequential to the ultimate

24 || nondisability determination; or (2) ALJ’s path may reasonably be discerned

25 || despite the error) (citation and quotation marks omitted).

26 Substantial evidence is “such relevant evidence as a reasonable mind might

27 || accept as adequate to support a conclusion.” Trevizo, 871 F.3d at 674 (defining

28 || “substantial evidence” as “more than a mere scintilla, but less than a

1 || preponderance’) (citation and quotation marks omitted). When determining

2 || whether substantial evidence supports an ALJ’s finding, a court “must consider the

3 || entire record as a whole, weighing both the evidence that supports and the

4 || evidence that detracts from the Commissioner’s conclusion[.]” Garrison v.

5 || Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citation and quotation marks omitted).

6 Federal courts review only the reasoning the ALJ provided, and may not

7 || affirm the ALJ’s decision “on a ground upon which [the ALJ] did not rely.”

8 | Trevizo, 871 F.3d at 675 (citations omitted). Hence, while an ALJ’s decision need

9 || not be drafted with “ideal clarity,” it must, at a minimum, set forth the ALJ’s

10 || reasoning “in a way that allows for meaningful review.” Brown-Hunter v. Colvin,

11 | 806 F.3d 487, 492 (9th Cir. 2015) (citing Treichler, 775 F.3d at 1099).

12 A reviewing court may not conclude that an error was harmless based on

13 || independent findings gleaned from the administrative record. Brown-Hunter, 806

14 || F.3d at 492 (citations omitted). When a reviewing court cannot confidently

15 || conclude that an error was harmless, a remand for additional investigation or

16 || explanation is generally appropriate. See Marsh v. Colvin, 792 F.3d 1170, 1173

17 || (9th Cir. 2015) (citations omitted).

18] DISCUSSION

19 Plaintiff contends that a reversal or remand is warranted because the ALJ

20 || failed to provide legally sufficient reasons for rejecting plaintiff's subjective

21 | complaints. (Plaintiffs Motion at 13-19). The Court disagrees.

22 A. Pertinent Law

23 When determining disability, an ALJ is required to consider a claimant’s

24 || impairment-related pain and other subjective symptoms at each step of the

25 || sequential evaluation process. 20 C.F.R. §§ 404.1529(a) & (d), 416.929(a) & (d).

26 || Accordingly, when a claimant presents “‘objective medical evidence of an

27 || underlying impairment which might reasonably produce the pain or other

28 || symptoms [the claimant] alleged,” the ALJ is required to determine the extent to

1 which the claimant’s statements regarding the intensity, persistence, and limiting

2 effects of his subjective symptoms (“subjective statements” or “subjective

3 complaints”) are consistent with the record evidence as a whole and, consequently,

4 whether any of the individual’s symptom-related functional limitations and

5 restrictions are likely to reduce the claimant’s capacity to perform work-related

6 activities. 20 C.F.R. §§ 404.1529(a), (c)(4), 416.929(a), (c)(4); Social Security

7 Ruling (“SSR”) 16-3p, 2017 WL 5180304, at *4-*10. When an individual’s

8 subjective statements are inconsistent with other evidence in the record, an ALJ

9 may give less weight to such statements and, in turn, find that the individual’s

10 symptoms are less likely to reduce the claimant’s capacity to perform work-related

11 activities. See SSR 16-3p, 2017 WL 5180304, at *8. In such cases, when there is

12 no affirmative finding of malingering, an ALJ may “reject” or give less weight to

13 the individual’s subjective statements “only by providing specific, clear, and

14 convincing reasons for doing so.” Brown-Hunter, 806 F.3d at 488-89. This

15 requirement is very difficult to satisfy. See Trevizo, 871 F.3d at 678 (“The clear

16 and convincing standard is the most demanding required in Social Security

17 cases.”) (citation and quotation marks omitted).

18 An ALJ’s decision “must contain specific reasons” supported by substantial

19 evidence in the record for giving less weight to a claimant’s statements. SSR

20 16-3p, 2017 WL 5180304, at *10. An ALJ must clearly identify each statement

21 being rejected and the particular evidence in the record which purportedly

22 undermines the statement. Treichler, 775 F.3d at 1103 (“ALJs typically identify

23 what parts of the claimant’s testimony were not credible and why.”) (citation

24 omitted). Nonetheless, if an ALJ’s evaluation of a claimant’s statements is

25 supported by substantial evidence, “the court may not engage in second-guessing.”

26 Chaudhry v. Astrue, 688 F.3d 661, 672 (9th Cir. 2012) (citation omitted).

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1 B. Analysis

2 Plaintiff alleged that due to her fibromyalgia, postherpetic neuralgia, severe

3 depression, and chronic fatigue, she spends most of her time in bed. (AR 42). She

4 can occasionally drive and fix meals, but she is aided by her mother and two

5 helpers who live with plaintiff and her children. (AR 42). She sometimes goes

6 three days without showering or taking care of personal hygiene. (AR 42). She

7 can walk for 15 minutes to half an hour a couple times a month. (AR 43). She has

8 memory and concentration problems due to fatigue and depression. (AR 48, 53-

9 54). Sometimes social activities are overwhelming, and she has trouble getting

10 along with others. (AR 251-52). She has tried numerous treatment modalities, but

11 they only provided minimal relief. (AR 44).

12 First, the ALJ gave less weight to plaintiff’s subjective complaints due, in

13 part, to the absence of supporting objective medical evidence. (AR 24-25). This

14 is a proper factor to consider when evaluating a claimant’s subjective complaints.

15 See Burch, 400 F.3d at 681 (“Although lack of medical evidence cannot form the

16 sole basis for discounting pain testimony, it is a factor that the ALJ can consider

17 . . . .”). For example, the ALJ found no supporting objective evidence of cervical

18 radiculopathy; extreme limitation in the ability to stand, balance or use her hands;

19 or marked limitation in physical functioning, as alleged. (AR 23). The ALJ noted

20 that the evidence of normal motor strength, intact sensation, and normal muscle

21 bulk and muscle tone was inconsistent with plaintiff’s allegations of lying in bed

22 most of the day due to her impairments and pain. (AR 23, 25-26); see also Meanel

23 v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (ALJ properly discredited plaintiff’s

24 testimony where there was no evidence of muscular atrophy or other physical

25 signs usually seen in an “inactive, totally incapacitated individual.”).

26 Plaintiff argues that physical signs are not among the criteria for diagnosing

27 fibromyalgia or polyneuropathy. (Plaintiff’s Motion at 17). Here, however, the

28 ALJ did not rely on the lack of objective signs of fibromyalgia or polyneuropathy

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1 to determine whether plaintiff had the medically determinable impairments of

2 fibromyalgia or polyneuropathy – both of which the ALJ determined were severe

3 impairments – but rather to evaluate plaintiff’s allegations of significant inactivity

4 caused by these impairments. (AR 23, 25-26). This was proper. See Meanel, 712

5 F.3d at 1114.

6 The ALJ also found a lack of supporting objective evidence regarding

7 plaintiff’s depressive disorder and its effects on plaintiff’s ability to function. (AR

8 21-22). The ALJ noted that plaintiff was able to occasionally drive and take her

9 young children to school activities, manage her treatment regimen, and engage in

10 social activities with friends and take in boarders to assist her with the household.

11 (AR 21-22, 42-43, 242, 251). The ALJ also noted that plaintiff was able to testify

12 at the hearing with little evidence of difficulty remembering her detailed medical

13 history, interact with the ALJ and hearing office staff without difficulties in her

14 interpersonal skills, and sustain attention and concentration during the hearing

15 without any noted difficulties. (AR 21-22). The ALJ was permitted to rely on her

16 own observations of plaintiff as one of the several factors for evaluating plaintiff’s

17 symptom testimony. See SSR 16-3p, 2016 WL 1119029, at *7 (ALJ “will

18 consider any personal observations of the [claimant] in terms of how consistent

19 those observations are with the individual’s statements about his or her symptoms

20 as well as with all of the evidence in the file.”); see also Verduzco v. Apfel, 188

21 F.3d 1087, 1090 (9th Cir. 1999) (when evaluating symptom testimony ALJ may

22 consider observations that claimant acted in manner at hearing that was

23 inconsistent with alleged disabling symptoms) (citation omitted).

24 Second, the ALJ considered other evidence in the record – State agency

25 opinions – in giving less weight to plaintiff’s subjective complaints. (AR 25-26).

26 The ALJ noted that there were no treating or examining source opinions in the

27 record, and thus there were no opinions that contradicted the State agency medical

28 consultants’ opinions that plaintiff had the capacity for light work with occasional

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1 posturals and no concentrated exposure to extreme cold, extreme heat, and

2 hazards. (AR 25, 58-80, 83-106). The State agency medical consultants relied on

3 plaintiff’s essentially normal physical examinations and the lack of evidence that

4 plaintiff’s diagnosis was established in a systematic fashion according to

5 established criteria. (AR 62, 86). Regarding plaintiff’s alleged mental

6 impairments, the State agency psychiatric consultant on initial review opined that

7 the mental impairments were non-severe, noting that plaintiff’s mental status

8 examinations were normal with treatment. (AR 25, 63, 74). On reconsideration,

9 the State agency psychological consultant noted that no worsening of the severity

10 of plaintiff’s mental impairments was evident in the evidence received subsequent

11 to the initial determination, yet opined that plaintiff had a severe mental

12 impairment and could perform simple and detailed but not complex activities and

13 that she may benefit from reduced interactions with the public. (AR 26, 86, 90-92,

14 98). The ALJ gave less weight to the opinion on reconsideration, finding that

15 plaintiff’s mental complaints were secondary to her physical pain symptoms and

16 the reported worsening of her symptoms was not supported by the record as a

17 whole. (AR 26).

18 Plaintiff argues that she had “multiple psychiatric hospitalizations involving

19 interaction between psychological and physical symptoms that neither of the

20 medical doctors nor the psychologists assumed.” (Plaintiff’s Motion at 17). The

21 record shows that plaintiff was hospitalized approximately 20-25 years ago for a

22 suicide attempt (AR 1747), in May 2015 for a severe reaction to an injection in her

23 head for fibromyalgia (AR 45, 1885-2048), and in December 2015 for suicidal

24 ideation (AR 46-47, 1301-1607). Thus, unless plaintiff is counting the

25 hospitalization over a decade prior to the alleged onset date, the record does not

26 support plaintiff’s argument that she had multiple psychiatric hospitalizations.

27 While Plaintiff argues that the medical evidence supports the State agency

28 psychological consultant’s opinion (Plaintiff’s Motion at 17), this Court will not

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1 || second-guess the ALJ’s reasonable determination to the contrary, even if the

2 || evidence could give rise to inferences more favorable to plaintiff. See Chaudhry,

3 || 688 F.3d at 672 (citation omitted).

4 Third, the ALJ gave less weight to plaintiff's subjective complaints because

5 || she stopped working for reasons other than her condition, namely because she was

6 || laid off. (AR 25). This is a proper factor to consider when assessing a claimant’s

7 || subjective complaints. See Brackett v. Commissioner of Social Security

8 | Administration, 468 F. App’x 754, 755 (9th Cir. 2012) (ALJ permissibly

9 || discounted claimant’s subjective pain testimony partly because claimant stopped

10 || working when he was laid off); Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir.

11 | 2001) (ALJ did not err in discrediting claimant’s subjective complaints where

12 || claimant left his job because he was laid off). Courts have found, however, that

13 || being laid off prior to the alleged disability onset date does not weigh against a

14 || claimant’s credibility. See Haagenson v. Colvin, 656 F. App’x 800, 801 (9th Cir.

15 || 2016) (holding that “the evidence that [claimant] was laid off from her last job...

16 || — prior to her alleged onset date... — has no bearing on either her credibility or

17 || the disability determination”); Harbaugh v. Commissioner of Social Security

18 || Administration, 2018 WL 1472005, at *4 (D. Ariz. Mar. 26, 2018) (finding “the

19 || fact that [claimant] was laid off... three years before her alleged onset date” “ has

20 || no relevance to [claimant’s] credibility in this instance’). Here, as the ALJ noted,

21 || plaintiff alleged that she stopped working in 2010 because she was laid off due to

22 || lack of business.* (AR 25, 231). Because plaintiff’s alleged onset date is two

23 || years after the date plaintiff was laid off, the Court finds that this is not a clear and

24 || convincing reason for rejecting plaintiff's subjective complaints.

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27 “Despite alleging in the Disability Report that she was laid off due to lack of business,

plaintiff testified that she stopped working in 2010 because she was “in considerable pain and

28 || started doing more medical care to see if [she] could get better.” (AR 40).

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1 Fourth, the ALJ observed that, contrary to plaintiff’s alleged mental

2 impairments due to her pain, plaintiff’s presentation at the hearing did not support

3 plaintiff’s allegations. (AR 21-22). As discussed above, the ALJ was permitted to

4 rely on her own observations of plaintiff at the hearing as one of several factors

5 affecting plaintiff’s credibility. See Drouin v. Sullivan, 966 F.2d 1255, 1259 (9th

6 Cir. 1992) (upholding credibility rejection where ALJ’s observation of claimant at

7 the hearing was one of several legitimate reasons stated); see also Verduzco, 188

8 F.3d at 1090.

9 On the whole, three of the four reasons for discounting plaintiff’s subjective

10 complaints are valid and supported by substantial evidence. The ALJ’s error in

11 relying on plaintiff’s lay-off in 2010 is harmless, as it would not have negated the

12 validity of the ALJ’s ultimate evaluation of plaintiff’s statements in this case. See

13 Molina, 674 F.3d at 1115 (Where one or more reasons supporting an ALJ’s

14 credibility analysis is invalid, any error is harmless if (1) the ALJ provided other

15 valid reasons supported by the record; (2) “there remains substantial evidence

16 supporting the ALJ’s decision”; and (3) the error “does not negate the validity of

17 the ALJ’s ultimate [credibility] conclusion.”) (citations and internal quotation

18 marks omitted).

19 Accordingly, plaintiff is not entitled to a reversal or remand on this basis.

20 V. CONCLUSION

21 For the foregoing reasons, the decision of the Commissioner of Social

22 Security is AFFIRMED.

23 LET JUDGMENT BE ENTERED ACCORDINGLY.

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25 DATED: December 18, 2019

26 _____________/s/____________________

Honorable Jacqueline Chooljian

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UNITED STATES MAGISTRATE JUDGE

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