Amelia Gomez De Dykstra v. Nancy A. Berryhill

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

10 WESTERN DIVISION

11 AMELIA D.,1 ) Case No. 2:19-cv-04552-JDE

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Plaintiff, ) MEMORANDUM OPINION AND

13 ) ORDER

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14 v. )

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15 ANDREW M. SAUL,2 ) )

Commissioner of Social Security, )

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17 Defendant. )

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19 Plaintiff Amelia D. (“Plaintiff”) filed a Complaint on May 24, 2019,

20 seeking review of the Commissioner’s denial of her applications for disability

21 insurance benefits (“DIB”) and supplemental security income (“SSI”). The

22 parties filed a Joint Submission (“Jt. Stip.”) regarding the issues in dispute on

23 January 14, 2020. The matter now is ready for decision.

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1 Plaintiff’s name has been partially redacted in accordance with Fed. R. Civ.

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

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

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1 I.

2 BACKGROUND

3 Plaintiff applied for DIB and SSI on January 29, 2016, alleging disability

4 commencing on July 25, 2015. Administrative Record (“AR”) 70-71, 193-99.

5 On May 22, 2018, after her applications were denied initially (AR 48-71) and

6 on reconsideration (AR 72-95), Plaintiff, represented by counsel, testified before

7 an Administrative Law Judge (“ALJ”), as did a vocational expert (“VE”). AR

8 28-47.

9 On June 13, 2018, the ALJ issued a written decision concluding Plaintiff

10 was not disabled. AR 10-18. The ALJ found Plaintiff had not engaged in

11 substantial gainful activity since her alleged onset date and had severe

12 impairments of rheumatoid arthritis and right knee tenderness. AR 12-13. The

13 ALJ also found Plaintiff did not have an impairment or combination of

14 impairments that met or medically equaled a listed impairment and had the

15 residual functional capacity (“RFC”) to perform the full range of medium

16 work,3 and alternatively, a full range of light work.4 AR 15.

17 The ALJ further found that Plaintiff was capable of performing past

18 relevant work as a fast food clerk (DOT #: 313.374-010), sandwich maker

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20 3 “Medium work” “involves lifting no more than 50 pounds at a time with

frequent lifting or carrying of objects weighing up to 25 pounds.” 20 C.F.R.

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§§ 404.1567(c), 416.967(c).

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4 “Light work” is defined as

23 lifting no more than 20 pounds at a time with frequent lifting or

carrying of objects weighing up to 10 pounds. Even though the weight

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lifted may be very little, a job is in this category when it requires a good

25 deal of walking or standing, or when it involves sitting most of the time

with some pushing and pulling of arm or leg controls. To be considered

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capable of performing a full or wide range of light work, you must have

27 the ability to do substantially all of these activities.

20 C.F.R. §§ 404.1567(b), 416.967(b).

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1 (DOT#: 317.664-010), and housekeeper (DOT#: 313.687-014). AR 16-17. The

2 ALJ also alternatively found that there were “other jobs” existing in the

3 national economy that Plaintiff was able to perform. Considering her age,

4 education, work experience, and RFC, the ALJ concluded that Plaintiff was

5 capable of performing jobs that exist in significant numbers in the national

6 economy, including: pantry cook (DOT#: 317.684-014) and short order cook

7 (DOT#: 313.374-014). AR 17-18. Thus, the ALJ found Plaintiff was not under

8 a “disability,” as defined in the Social Security Act, from the alleged onset date

9 of July 25, 2015, through the date of the decision. AR 18. Plaintiff’s request for

10 review of the ALJ’s decision by the Appeals Council was denied, making the

11 ALJ’s decision the agency’s final decision. AR 1-3.

12 II.

13 LEGAL STANDARDS

14 A. Standard of Review

15 Under 42 U.S.C. § 405(g), this Court may review the Commissioner’s

16 decision to deny benefits. The ALJ’s findings and decision should be upheld if

17 they are free from legal error and supported by substantial evidence based on

18 the record as a whole. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir.

19 2015) (as amended); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).

20 Substantial evidence means such relevant evidence as a reasonable person

21 might accept as adequate to support a conclusion. Lingenfelter v. Astrue, 504

22 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla, but less than a

23 preponderance. Id. To determine whether substantial evidence supports a

24 finding, the reviewing court “must review the administrative record as a whole,

25 weighing both the evidence that supports and the evidence that detracts from

26 the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th

27 Cir. 1998). “If the evidence can reasonably support either affirming or

28 reversing,” the reviewing court “may not substitute its judgment” for that of

1 the Commissioner. Id. at 720-21; see also Molina v. Astrue, 674 F.3d 1104,

2 1111 (9th Cir. 2012) (“Even when the evidence is susceptible to more than one

3 rational interpretation, [the court] must uphold the ALJ’s findings if they are

4 supported by inferences reasonably drawn from the record.”).

5 Lastly, even if an ALJ errs, the decision will be affirmed where such

6 error is harmless (Molina, 674 F.3d at 1115), that is, if it is “inconsequential to

7 the ultimate nondisability determination,” or if “the agency’s path may

8 reasonably be discerned, even if the agency explains its decision with less than

9 ideal clarity.” Brown-Hunter, 806 F.3d at 492 (citation omitted).

10 B. Standard for Determining Disability Benefits

11 When the claimant’s case has proceeded to consideration by an ALJ, the

12 ALJ conducts a five-step sequential evaluation to determine at each step if the

13 claimant is or is not disabled. See Molina, 674 F.3d at 1110. First, the ALJ

14 considers whether the claimant currently works at a job that meets the criteria

15 for “substantial gainful activity.” Id. If not, the ALJ proceeds to a second step

16 to determine whether the claimant has a “severe” medically determinable

17 physical or mental impairment or combination of impairments that has lasted

18 for more than twelve months. Id. If so, the ALJ proceeds to a third step to

19 determine whether the claimant’s impairments render the claimant disabled

20 because they “meet or equal” any of the listed impairments set forth in the

21 Social Security regulations at 20 C.F.R. Part 404, Subpart P, Appendix 1. See

22 Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1001 (9th Cir. 2015) (as

23 amended). If the claimant’s impairments do not meet or equal a “listed

24 impairment,” before proceeding to the fourth step the ALJ assesses the

25 claimant’s RFC, that is, what the claimant can do on a sustained basis despite

26 the limitations from her impairments. See 20 C.F.R. §§ 404.1520(a)(4),

27 416.920(a)(4); Social Security Ruling (“SSR”) 96-8p.

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1 After determining the claimant’s RFC, the ALJ proceeds to the fourth

2 step and determines whether the claimant has the RFC to perform her past

3 relevant work, either as she “actually” performed it when she worked in the

4 past, or as that same job is “generally” performed in the national economy. See

5 Stacy v. Colvin, 825 F.3d 563, 569 (9th Cir. 2016). If the claimant cannot

6 perform her past relevant work, the ALJ proceeds to a fifth and final step to

7 determine whether there is any other work, in light of the claimant’s RFC, age,

8 education, and work experience, that the claimant can perform and that exists

9 in “significant numbers” in either the national or regional economies. See

10 Tackett v. Apfel, 180 F.3d 1094, 1100-01 (9th Cir. 1999). If the claimant can

11 do other work, she is not disabled; but if the claimant cannot do other work

12 and meets the duration requirement, the claimant is disabled. See id. at 1099.

13 The claimant generally bears the burden at each of steps one through

14 four to show she is disabled, or she meets the requirements to proceed to the

15 next step; and the claimant bears the ultimate burden to show she is disabled.

16 See, e.g., Molina, 674 F.3d at 1110; Johnson v. Shalala, 60 F.3d 1428, 1432

17 (9th Cir. 1995). However, at step five, the ALJ has a limited burden of

18 production to identify representative jobs that the claimant can perform and

19 that exist in “significant” numbers in the economy. See Hill v. Astrue, 698

20 F.3d 1153, 1161 (9th Cir. 2012); Tackett, 180 F.3d at 1100.

21 III.

22 DISCUSSION

23 The parties present one disputed issue: whether the ALJ properly

24 considered Plaintiff’s subjective symptom testimony. Jt. Stip. at 4.

25 A. Applicable Law

26 Where a disability claimant produces objective medical evidence of an

27 underlying impairment that could reasonably be expected to produce the pain

28 or other symptoms alleged, absent evidence of malingering, the ALJ must

1 provide “‘specific, clear and convincing reasons for’ rejecting the claimant’s

2 testimony regarding the severity” of the symptoms. Treichler v. Comm’r Soc.

3 Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (citation omitted); Moisa v.

4 Barnhart, 367 F.3d 882, 885 (9th Cir. 2004). The ALJ’s findings “must be

5 sufficiently specific to allow a reviewing court to conclude that the [ALJ]

6 rejected [the] claimant’s testimony on permissible grounds and did not

7 arbitrarily discredit the claimant’s testimony.” Moisa, 367 F.3d at 885 (citation

8 omitted). But if the ALJ’s assessment of the claimant’s testimony is reasonable

9 and is supported by substantial evidence, it is not the Court’s role to “second-

10 guess” it. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Finally,

11 the ALJ’s credibility finding may be upheld even if not all the ALJ’s reasons

12 for rejecting the claimant’s testimony are upheld. See Batson v. Comm’r of

13 Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004).

14 B. Analysis

15 At the May 2018 hearing, Plaintiff testified that she recently had surgery

16 to remove a cyst, and had some pain from the surgery. AR 33-34. She stated

17 that her physician has also recommended surgery for carpal tunnel in her left

18 hand because she had “bad pains,” could not hold anything heavy, had had

19 surgery on her right hand, which helped, but she still could not hold anything

20 heavy with that hand. AR 35-36. She described taking medication that helped

21 control the pain. AR 36-37. Plaintiff also testified that she had arthritis, pain in

22 her knees and ankles, did physical therapy, but stopped following surgery for a

23 cyst. AR 37, 41. She advised her physician recommended shots for her knees

24 and ankles, but she was still thinking about it. AR 41. She stated she otherwise

25 took medication to control the pain and reduce inflammation, though the

26 medication caused stomachaches. AR 41-42.

27 Plaintiff indicated she was seeing a speech pathologist for Bell’s Palsy as

28 her face was “still crooked.” AR 40. She stated Bell’s Palsy caused dry eyes,

1 headaches, and dizziness. AR 40. She described having suffered from

2 depression in the past, which had been treated with medication. AR 42.

3 The ALJ considered Plaintiff’s subjective complaints and found her

4 medically determinable impairments could reasonably be expected to cause the

5 alleged symptoms, but her statements “concerning the intensity, persistence[,]

6 and limiting effects of these symptoms” were “not entirely consistent with the

7 medical evidence and other evidence in the record.” The ALJ discounted

8 Plaintiff’s subjective symptom testimony for the following reasons: (1) an

9 examining physician believed Plaintiff was exaggerating her pain symptoms;

10 (2) Plaintiff’s symptoms were being effectively controlled by medication; and

11 (3) lack of objective medical evidence. AR 16.

12 First, the ALJ found that at least one examining physician believed

13 Plaintiff was exaggerating her pain symptoms, “presumably with the goal of

14 secondary gain in efforts to receive Social Security disability benefits.” AR 16.

15 Dr. Barbara E. Weiss conducted a comprehensive internal medicine evaluation

16 on May 1, 2016. AR 509-14. Plaintiff reported that she had arthritis in her

17 knees, hands, wrists, elbows, and feet, causing pain. AR 509. She claimed it

18 was painful to stretch, sit, put on socks, and stand up for long periods of time.

19 She stated that she was able to bathe and dress herself, toilet by herself, feed

20 herself, prepare meals, wash dishes and put them away, load and unload the

21 dishwasher, do laundry, shop, drive, vacuum, mop, sweep, and wipe the

22 counters. She described watching an hour of television a day, talking on the

23 phone, and socializing with family. Id. During the examination, Dr. Weiss

24 noted that Plaintiff was able to walk into the examination room without

25 difficulty with her left foot slightly pigeon-toed and moved her right arm less

26 than usual, but otherwise her gait was normal. She noted that Plaintiff was

27 able to sit comfortably and get in and out of the chair and examination table

28 without difficulty. She could pick up and manipulate small objects, take her

1 shoes on and off, and was otherwise alert, cooperative, and could follow

2 instructions. She observed no discomfort when Plaintiff changed positions. She

3 found, however, that Plaintiff “displayed exaggerated facial and verbal

4 expressions of pain no matter where she was touched all over her body, which

5 were in contrast to her movements about the room and activities of daily

6 living.” AR 510. The ALJ properly considered Dr. Weiss’s finding that

7 Plaintiff exaggerated her symptoms as a clear and convincing reason for

8 discounting her subjective testimony. See Tonapetyan v. Halter, 242 F.3d

9 1144, 1148 (9th Cir. 2001) (exaggeration was a specific and convincing reason

10 to support the ALJ’s credibility determination where a claimant was

11 “uncooperative during cognitive testing” but “‘much better’ when giving

12 reasons for being unable to work”); Uchanski v. Berryhill, 2018 WL 3078551,

13 at *5 (C.D. Cal. June 19, 2018) (finding that the ALJ properly considered

14 plaintiff’s exaggerated responses as a clear and convincing reason for his

15 adverse credibility finding).

16 Next, the ALJ found that Plaintiff’s rheumatoid arthritis was controlled

17 with medication. AR 16. The ALJ was entitled to discount Plaintiff’s

18 subjective symptoms based on her positive response to treatment. See

19 Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (plaintiff’s

20 “response to conservative treatment undermines [his] reports regarding the

21 disabling nature of his pain”); Uchanski, 2018 WL 3078551, at *5 (“The fact

22 that Plaintiff’s pain was addressed by medication alone (without surgery or

23 injections) provided another valid basis for discounting Plaintiff’s credibility.”);

24 see also Marsh v. Colvin, 792 F.3d 1170, 1173 n.2 (9th Cir. 2015) (finding that

25 plaintiff’s treatment was “routine and conservative” was a permissible basis for

26 discounting the credibility of plaintiff’s symptom testimony); Warre v. Comm’r

27 of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“[i]mpairments that

28 can be controlled effectively with medication are not disabling”).

1 The ALJ noted Plaintiff testified she took medications to control pain

2 and inflammation from rheumatoid arthritis, and her treating physician Dr.

3 Javeed Ahmed reported that her condition was “very well controlled” within a

4 couple months of starting methotrexate. AR 16. Medical records reflect she

5 began treatment with Dr. Ahmed for rheumatoid arthritis in May 2017. AR

6 548-49. The following month, Dr. Ahmed reported Plaintiff was “responding

7 to medication very well” and was “feeling much better.” AR 551-52. In August

8 2017, Dr. Ahmed again reported Plaintiff’s rheumatoid arthritis was “very well

9 controlled” and she was to continue her regime of methotrexate and folic acid.

10 Dr. Ahmed noted Plaintiff had “mild swelling” in both ankles due to

11 osteoarthritis and recommended considering a steroid injection if the pain

12 continued to bother her. AR 555. Plaintiff’s podiatrist similarly recommended

13 a cortisone injection for her ankle pain related to rheumatoid arthritis. See AR

14 580 (advising Plaintiff to change her shoes and recommending cortisone

15 injection if no improvement), 583 (recommending injection). In December

16 2018, Dr. Ahmed again reported that Plaintiff’s rheumatoid arthritis was “very

17 well controlled” with medication. AR 558. Plaintiff was seen by Nurse

18 Practitioner Jake Carpenter at the end of January 2018, at which time

19 Carpenter found that Plaintiff’s ankle swelling was stable. AR 576. In addition,

20 at the hearing, Plaintiff testified that medication controlled the pain and

21 inflammation, and although shots have been recommended, Plaintiff had not

22 pursued this treatment, without explanation. AR 41. Despite alleging disabling

23 pain, Plaintiff has only pursued conservative treatment, and refused to follow

24 the treatment recommendations for steroid injections. The ALJ’s finding

25 regarding Plaintiff’s positive response to medication was a clear and

26 convincing reason to discount Plaintiff’s statements of a disabling impairment.

27 Finally, the ALJ discounted Plaintiff’s subjective symptom testimony

28 because it was not supported by objective medical evidence. AR 16. “Although

1 lack of medical evidence cannot form the sole basis for discounting pain

2 testimony, it is a factor that the ALJ can consider in his credibility analysis.”

3 Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005); see also Rollins, 261

4 F.3d at 857. The ALJ cited the inconsistency between Plaintiff’s claim of

5 disability based on the combination of swelling ankles, rheumatoid arthritis,

6 and carpal tunnel and the lack of objective medical evidence supporting

7 Plaintiff’s latter claim. The ALJ noted that the objective medical evidence for

8 carpal tunnel was “very slim and sparse, including essentially a reported right

9 hand release in 2004 and the claimant’s current report that she needs a left

10 hand release, but without definite plan of a date.” AR 16. There are very few

11 objective medical findings supporting Plaintiff claim that she has carpal tunnel

12 in her left hand, and none indicating surgery was necessary. Although Plaintiff

13 disputes the ALJ’s finding that the evidence is slim, Plaintiff herself cites only

14 two records in support of her contention, one reflecting tenderness in the left

15 wrist due to “Dequarian” (De Quervain’s) tenosynovitis (AR 558) and another

16 reflecting a positive Tinsel’s sign (AR 576). Jt. Stip. at 9-10. The records

17 otherwise show “mild degenerative changes” (AR 335) and minimal medical

18 treatment for left wrist pain. A steroid injection was recommended, which

19 Plaintiff refused (AR 557-58), and she was referred to neurology, which, it

20 appears, she never pursued (AR 576). The “case law is clear that if a claimant

21 complains about disabling pain but fails to seek treatment . . . an ALJ may use

22 such failure as a basis for finding the complaint unjustified or exaggerated.”

23 Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007); Burch, 400 F.3d at 681

24 (“ALJ is permitted to consider lack of treatment in his credibility

25 determination”). The ALJ’s determination is supported by the record.

26 Similarly, the ALJ discounted Plaintiff’s subjective complaints of dry

27 eyes, headaches, and dizziness caused by Bell’s Palsy because the record did

28 not document significant ongoing limitations persisting for twelve continuous

1 months that could be objectively attributed to Plaintiff’s Bell’s Palsy. AR 16.

2 Plaintiff does not dispute this finding, which is supported by the record. Greger

3 v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006) (plaintiff waived issues not

4 raised before the district court); Owens v. Colvin, 2014 WL 5602884, at *4

5 (C.D. Cal. Nov. 4, 2014) (plaintiff’s failure to discuss, or even acknowledge,

6 ALJ’s reliance on certain reasons waived any challenge to those aspects of

7 ALJ’s finding).

8 Relatedly, the ALJ noted that there was no medical evidence regarding

9 any mental health treatment for Plaintiff’s reported anxiety. AR 16. Again, this

10 finding is supported by the record, and Plaintiff fails to point to any objective

11 evidence refuting the ALJ’s finding. At the administrative hearing, Plaintiff

12 was asked whether she was receiving psychological treatment, including for

13 depression, and Plaintiff answered that she has never received mental health

14 treatment and “they just give [her] medication for that,” which helped. AR 42.

15 Plaintiff also addresses the ALJ’s discussion of the lack of recent x-rays

16 regarding her ankle pain. Jt. Stip. at 10 (citing AR 16). It is unclear whether the

17 ALJ relied on this finding as a basis for discounting Plaintiff’s allegations of

18 pain. Although the ALJ stated that the only reported x-ray findings for

19 Plaintiff’s ankles had been narrowed joint spaces in 2016 and that as of

20 December 8, 2017, Plaintiff’s physician did not recommend new ones (AR 16),

21 as the ALJ noted elsewhere in his decision, Dr. Ahmed did recommend that x-

22 rays be taken of both ankles in August 2017. AR 14, 555. In any event, even if

23 the ALJ erred by relying on the lack of x-rays, if other “substantial evidence

24 supporting the ALJ’s conclusions” exists and the error “does not negate the

25 validity of the ALJ’s ultimate [credibility] conclusion,” any error is harmless

26 and does not warrant reversal. Batson, 359 F.3d at 1197; Uchanski, 2018 WL

27 3078551, at *5 (improper finding was harmless because “of the other clear and

28 convincing reasons” supporting the ALJ’s adverse credibility conclusion). As

1 ALJ had at least three other proper bases for discounting Plaintiff's

2 subjective complaints, any error in relying on this reason was harmless.

3 Contrary to Plaintiff's contention that the ALJ failed to “articulate

4 || sufficient reasons for rejecting” her subjective symptom testimony (Jt. Stip. at

5 the ALJ provided at least three clear and convicting reasons supporting his

6 || determination. The Court finds that the ALJ’s reasons for discounting

7 || Plaintiffs subjecttve complaints are sufficiently specific, clear, and convincing

8 ||enough to support his determination. Accordingly, reversal is not warranted.

9 IV.

10 ORDER

11 IT THEREFORE IS ORDERED that Judgment be entered affirming

12 ||the decision of the Commissioner and dismissing this action with prejudice.

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14 || Dated: January 28, 2020

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16 ND. EARLY

17 nited States Magistrate Judge

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