Opinion

Deborah L. Jones v. Andrew Saul

Court
District Court, C.D. California
Filed
Apr 29, 2020
Cited by
0 cases
Authority
More cited than 17.9%

“We have long held that, in assessing a 5] claimant’s credibility the ALJ may properly rely on unexplained or 6| inadequately explained failure .. . to follow a prescribed course of 7

How later courts described this case

  • “We have long held that, in assessing a 5] claimant’s credibility the ALJ may properly rely on unexplained or 6| inadequately explained failure .. . to follow a prescribed course of 7
  • “the ALJ may consider inconsistencies in the 4|| claimant’s testimony or between the testimony and the claimant’s 5] conduct”
  • inconsistency between claimant’s testimony and claimant’s actions cited as a clear and convincing reason for rejecting claimant’s 16] testimony
  • suggesting that ssp 16-3p “makes clear what our precedent already required”

Written by the judges who cited it.

The opinion

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 DEBORAH L. J., ) NO. ED CV 19-2022-E

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12 Plaintiff, )

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13 v. ) MEMORANDUM OPINION

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14 ANDREW SAUL, Commissioner of )

Social Security, )

15 )

Defendant. )

16 ___________________________________)

17

18 PROCEEDINGS

19

20 Plaintiff filed a complaint on October 22, 2019, seeking review

21 of the Commissioner's denial of benefits. The parties consented to

22 proceed before a United States Magistrate Judge on November 25, 2019.

23 Plaintiff filed a motion for summary judgment on March 4, 2020.

24 Defendant filed a motion for summary judgment on March 27, 2020. The

25 Court has taken the motions under submission without oral argument.

26 See L.R. 7-15; “Order,” filed October 28, 2019.

27 ///

28 ///

1 BACKGROUND

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3 Plaintiff asserted disability based on a host of alleged

4 impairments (Administrative Record (“A.R.”) 44-69, 98, 188). An

5 Administrative Law Judge (“ALJ”) examined the record and heard

6 testimony from Plaintiff and a vocational expert (A.R. 17-183, 188-

7 818). The ALJ found some of Plaintiff’s alleged physical impairments

8 to be severe, but also found that Plaintiff retains the residual

9 functional capacity to work (A.R. 22-33). The Appeals Council denied

10 review (A.R. 1-3).

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12 In determining that Plaintiff can work, the ALJ found Plaintiff’s

13 testimony regarding her subjective physical symptomatology to be less

14 than fully credible (A.R. 26-31). The parties’ motions dispute the

15 validity of the ALJ’s credibility finding.1

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17 STANDARD OF REVIEW

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19 Under 42 U.S.C. section 405(g), this Court reviews the

20 Administration’s decision to determine if: (1) the Administration’s

21 findings are supported by substantial evidence; and (2) the

22 Administration used correct legal standards. See Carmickle v.

23 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue,

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1 The motions do not appear specifically to dispute

26 whether substantial evidence otherwise supports the ALJ’s

determination that Plaintiff can work. In any event, after

27 reviewing the entire record, the Court finds that substantial

evidence does support the ALJ’s determination that Plaintiff can

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499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner,

2) 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is “such

relevant evidence as a reasonable mind might accept as adequate to

4|| support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401

5] (1971) (citation and quotations omitted); see also Widmark v.

6| Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).

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8 If the evidence can support either outcome, the court may

9 not substitute its judgment for that of the ALJ. But the

10 Commissioner’s decision cannot be affirmed simply by

11 isolating a specific quantum of supporting evidence.

12 Rather, a court must consider the record as a whole,

13 weighing both evidence that supports and evidence that

14 detracts from the [administrative] conclusion.

15

Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and

quotations omitted). The harmless error rule applies to the review of

18] administrative decisions regarding disability. See Garcia v.

19] Commissioner, 768 F.3d 925, 932-33 (9th Cir. 2014); McLeod v. Astrue,

20] 640 F.3d 881, 886-88 (9th Cir. 2011).

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22 DISCUSSION

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24 Plaintiff testified to excruciating, profoundly incapacitating

25|| physical symptoms (A.R. 47-67). According to Plaintiff, she

26| experiences: “severe pain throughout [her] body”; swelling in her

27| feet, ankles and knees “so bad” she feels like she is “going to

28|| burst”; sharp pains in the bottoms of her feet; numbness in her toes,

1) legs and hands; headaches; and intense pains in her stomach, knees and

2) back. Id. Plaintiff claimed that her symptoms force her to be almost

3] entirely inactive (A.R. 63-64). She says that she spends 22 hours a

4| day either lying down with her feet propped up or sitting down with

5| her feet propped up. Id. According to Plaintiff, she needs to “pop”

her knee into place just to be able to walk, and then she still needs

a cane, a wheeled chair or a walker to ambulate, even short distances

8] in and around her own home (A.R. 56, 65). She further testified that,

9| whenever she moves, her back “literally pops . . . in and out of

10] place” (A.R. 65).

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12 Where an ALJ finds that a claimant’s medically determinable

impairments reasonably could be expected to cause some degree of the

alleged symptoms of which the claimant subjectively complains,’ any

15] discounting of the claimant’s complaints must be supported by

specific, cogent findings. See Berry v. Astrue, 622 F.3d 1228, 1234

17 (9th Cir. 2010); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995);

18] but see Smolen v. Chater, 80 F.3d 1273, 1282-84 (9th Cir. 1996)

19] (indicating that ALJ must offer “specific, clear and convincing”

20| reasons to reject a claimant’s testimony where there is no evidence of

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27 ? The ALJ recited such a finding, as the ALJ had

determined that Plaintiff has severe diabetes and degenerative

28 orthopedic problems (A.R. 22, 28).

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“malingering”).* An ALJ’s credibility finding “must be sufficiently

2| specific to allow a reviewing court to conclude the ALJ rejected the

3] claimant’s testimony on permissible grounds and did not arbitrarily

4|| discredit the claimant’s testimony.” See Moisa v. Barnhart, 367 F.3d

5] 882, 885 (9th Cir. 2004) (internal citations and quotations omitted) ;

6| see also Social Security Ruling (“SSR”) 96-7p (explaining how to

7|| assess a claimant’s credibility), superseded, SSR 16-3p (eff. Mar. 28,

8|| 2016) .* As discussed below, the ALJ stated sufficient reasons for

9] finding Plaintiff’s subjective allegations to be less than fully

10]| credible.

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12 The ALJ determined that the objective medical evidence supported

a residual capacity inconsistent with Plaintiff's claimed inability to

14] function (A.R. 28-31). As the ALJ observed, the medical examinations

and testing reflected in the Administrative Record yielded mostly mild

16 —— ese

17 3 In the absence of an ALJ’s reliance on evidence of

“malingering,” most recent Ninth Circuit cases have applied the

“clear and convincing” standard. See, e.g., Leon v. Berryhill,

880 F.3d 1041, 1046 (9th Cir. 2017); Brown-Hunter v. Colvin, 806

19| F.3d 487, 488-89 (9th Cir. 2015); Burrell v. Colvin, 775 F.3d

30 1133, 1136-37 (9th Cir. 2014); Treichler v. Commissioner, 775

F.3d 1090, 1102 (9th Cir. 2014); Ghanim v. Colvin, 763 F.3d 1154,

1163 n.9 (9th Cir. 2014); Garrison v. Colvin, 759 F.3d 995, 1014-

15 &n.18 (9th Cir. 2014); see also Ballard v. Apfel, 2000 WL

22| 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting earlier

cases). In the present case, the ALJ’s findings are sufficient

under either standard, so the distinction between the two

54 Standards (if any) is academic.

25 The appropriate analysis under the superseding SSR is

substantially the same as the analysis under the superseded SSR.

26| See R.P. v. Colvin, 2016 WL 7042259, at *9 n.7 (E.D. Cal. Dec. 5,

2016) (stating that SSR 16-3p “implemented a change in diction

27| rather than substance”) (citations omitted); see also Trevizo v.

Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (suggesting that

ssp 16-3p “makes clear what our precedent already required”).

1] or moderate findings (A.R. 28-30, 383-85, 399-401, 406-408, 721,742,

795, 797, 800). An ALJ permissibly may rely in part on a lack of

supporting objective medical evidence in discounting a claimant’s

4|| allegations of disabling symptomatology. See Burch v. Barnhart, 400

F.3d 676, 681 (9th Cir. 2005) (“Although lack of medical evidence

6] cannot form the sole basis for discounting pain testimony, it is a

7| factor the ALJ can consider in his [or her] credibility analysis.”) □

Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (same); see

9|| also Carmickle v. Commissioner, 533 F.3d at 1161 (“Contradiction with

the medical record is a sufficient basis for rejecting the claimant’s

11] subjective testimony”); SSR 16-3p (“[O]bjective medical evidence is a

useful indicator to help make reasonable conclusions about the

13] intensity and persistence of symptoms, including the effects those

symptoms may have on the ability to perform work-related activities

15]. . .”).

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17 The ALJ also mentioned the relatively conservative treatment

18] Plaintiff has received for her various alleged impairments (A.R.

27-28). The relatively conservative nature of a claimant’s treatment

properly may factor into the evaluation of the claimant’s subjective

complaints. See Tommasetti v. Astrue, 533 F.3d 1035, 1039-40 (9th

Cir. 2008); Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007), cert.

23|| denied, 552 U.S. 1141 (2008); Osenbrock v. Apfel, 240 F.3d 1157, 1166

24 (9th Cir. 2001).

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26 The ALJ also mentioned evidence in the record that Plaintiff

27| refused further treatment (specifically knee surgery and injections to

relieve pain) (A.R 28, 638, 669). The only explanation given for such

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refusal was Plaintiff's supposed fear of needles. Id. Unexplained or

2| inadequately explained refusal of recommended treatment can cast doubt

on a claimant’s credibility. See Molina v. Astrue, 674 F.3d 1104,

4|| 1113 (9th Cir. 2012) (“We have long held that, in assessing a

5] claimant’s credibility the ALJ may properly rely on unexplained or

6| inadequately explained failure .. . to follow a prescribed course of

7) treatment”) (citations and quotations omitted); accord, Fair v. Bowen,

885 F.2d 597, 603 (9th Cir. 1989); see also Coelho v. Astrue, 2011 WL

9] 3501734, at *5 (N.D. Cal. Aug. 10, 2011), aff'd, 525 Fed. App’x 637

10] (9th Cir. 2013) (claimant’s inadequately explained declination of

11] recommended surgical treatment may, under some circumstances,

undermine the claimant’s subjective complaints of allegedly disabling

pain).

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15 Plaintiff argues that the ALJ erred by relying on evidence that

16] Plaintiff had refused recommended treatment, citing Trevizo v.

17] Berryhill, 871 F.3d 664 (9th Cir. 2017) (“Trevizo”). In Trevizo, the

claimant had declined to take oxycodone, explaining both that she was

19] afraid of becoming addicted to oxycodone and that the drug she was

20] taking (hydroxyzine) “kept her pain under control.” Id. at 679-80.

21| The Trevizo Court held that, in view of this explanation (which the

22| ALJ never addressed), the ALJ had erred by finding the claimant not

credible for having failed to take the oxycodone. Id.

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25 The Trevizo decision is materially distinguishable from the

26|| present case. The claimant in Trevizo might well have rationally

27| refused the potentially addicting oxycodone when a less dangerous drug

28| was already adequately controlling her pain. By contrast, in the

1| present case, the only proffered explanation for Plaintiff’s refusal

2| of treatment appears to be irrational. It would appear irrational to

3| refuse to exchange the momentary discomfort of a safe injection for

4|| the alleviation of otherwise severe, unrelenting pain. As numerous

5|| courts have held, an ALJ properly may infer that such a refusal

6| betrays the fact that the pain is not as severe as claimed, and the

ALJ may draw this inference regardless of any asserted fear of

8] needles. See, e.g., Moss v. Astrue, 2011 WL 13284756, at *6 (D. New

Mex. Oct. 25, 2011); Galford v. Astrue, 2010 WL 5441634, at *20 (N.D.

10] W.Va. Dec. 8, 2010); Nissen v. Astrue, 2008 WL 2397680, at *1 (N.D.

11) Iowa June 9, 2008); Colgrove v. Astrue, 2008 WL 974838, at *5 (E.D.

12] Tenn. Apr. 9, 2008). Furthermore, the Trevizo Court appeared to fault

the ALJ for failing to inquire into the bona fides of the claimant’s

proffered explanation for refusing to take the oxycodone. In the

present case, the ALJ attempted to inquire further into Plaintiff’s

16] explanation for refusing surgery and pain injections (A.R.57).

17] However, Plaintiff frustrated this inquiry by flatly denying that any

surgery or pain injections had ever been recommended for her. Id.”

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20 As an additional reason for finding Plaintiff’s testimony less

21] than fully credible, the ALJ cited evidence that Plaintiff had engaged

in physical activity inconsistent with the invalid-like existence she

23| had claimed for herself (A.R. 27). For example, Plaintiff reported to

24] a third party examiner that Plaintiff had walked “long distances”

25|| during a field trip with one of her children (A.R. 621).

26

27 ° Contrary to Plaintiff’s testimony, counsel for

Plaintiff appears now to concede that surgery and pain injections

28 were recommended for Plaintiff (Plaintiff's Motion at 7-8).

1] Inconsistencies between claimed incapacity and actual activities

2| properly can impugn a claimant’s credibility. See, e.g., Molina v.

3] Astrue, 674 F.3d at 1112 (“the ALJ may consider inconsistencies in the

4|| claimant’s testimony or between the testimony and the claimant’s

5] conduct”); Valentine v. Commissioner, 574 F.3d 685, 693 (9th Cir.

6] 2009) (claimant’s admitted activities did not suggest that claimant

could work, but did suggest that claimant was exaggerating the

8| severity of claimant’s limitations); Lingenfelter v. Astrue, 504 F.3d

9] 1028, 1040 (9th Cir. 2007) (activities inconsistent with alleged

10] symptoms relevant to credibility determination); Thomas v. Barnhart,

11] 278 F.3d 947, 958-59 (9th Cir. 2002) (inconsistency between claimant’s

12] testimony and claimant’s actions supported rejection of claimant’s

credibility); Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999)

(inconsistency between claimant’s testimony and claimant’s actions

cited as a clear and convincing reason for rejecting claimant’s

16] testimony) .

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18 It may be that not all of the ALJ’s stated reasons for

discounting Plaintiff’s subjective symptomatology are legally valid.

20|| However, notwithstanding the invalidity of one or more of an ALJ’s

21| stated reasons, a court may uphold an ALJ’s credibility determination

22|| where sufficient valid reasons have been stated. See Carmickle v.

Commissioner, 533 F.3d at 1162-63. In the present case, the ALJ

stated sufficient valid reasons to allow this Court to conclude that

the ALJ discounted Plaintiff’s credibility on permissible grounds.

26|| See Moisa v. Barnhart, 367 F.3d at 885. The Court therefore defers to

the ALJ’s credibility determination. See Lasich v. Astrue, 252 Fed.

App’x 823, 825 (9th Cir. 2007) (court will defer to Administration’s

1] credibility determination when the proper process is used and proper

2|| reasons for the decision are provided); accord Flaten v. Secretary of

3] Health & Human Services, 44 F.3d 1453, 1464 (9th Cir. 1995) .°®

4

5 CONCLUSION

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7 For all of the foregoing reasons, Plaintiff’s motion for summary

judgment is denied and Defendant’s motion for summary judgment is

granted.

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11 LET JUDGMENT BE ENTERED ACCORDINGLY.

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13 DATED: April 29, 2020.

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15

CHARLES F. EICK

16 UNITED STATES MAGISTRATE JUDGE

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26 6 The Court should not and does not determine the

credibility of Plaintiff's testimony concerning her subjective

27| symptomatology. Absent legal error, it is for the

Administration, and not this Court, to do so. See Magallanes v.

Bowen, 881 F.2d 747, 750, 755-56 (9th Cir. 1989).

hn

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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