“We have long 6| held that, in assessing a claimant’s credibility the ALJ may properly rely on unexplained or inadequately explained failure .. . to follow 8|| a prescribed course of treatment”
How later courts described this case
- “We have long 6| held that, in assessing a claimant’s credibility the ALJ may properly rely on unexplained or inadequately explained failure .. . to follow 8|| a prescribed course of treatment”
- suggesting that ssp 16-3p “makes clear what our precedent already required”
- “Although lack of medical evidence cannot form the sole basis 4| for discounting pain testimony, it is a factor the ALJ can consider in his [or her] credibility analysis.”
- “Contradiction with the medical record is a 8| sufficient basis for rejecting the claimant’s subjective testimony”
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 MAXINE GLORIA HERMOSILLO, ) NO. ED CV 19-2062-E
)
12 Plaintiff, )
)
13 v. ) MEMORANDUM OPINION
)
14 ANDREW SAUL, Commissioner of )
Social Security, )
15 )
Defendant. )
16 ___________________________________)
17
18 PROCEEDINGS
19
20 Plaintiff filed a complaint on October 28, 2019, seeking review
21 of the Commissioner’s denial of benefits. The parties consented to
22 proceed before a United States Magistrate Judge on December 11, 2019.
23 Plaintiff filed a motion for summary judgment on March 25, 2020.
24 Defendant filed a motion for summary judgment on April 24, 2020. The
25 Court has taken the motions under submission without oral argument.
26 See L.R. 7-15; “Order,” filed November 1, 2019.
27 ///
28 ///
1 BACKGROUND
2
3 Plaintiff asserted disability since April 18, 2014, based
primarily on irritable bowl syndrome (“IBS”) (Administrative Record
5] (“A.R.”) 34, 144, 169, 198). The Administrative Law Judge (“ALJ”)
6|| examined the record and heard testimony from Plaintiff anda
7) vocational expert (A.R. 12-142, 144-229, 234-1064). The ALJ found
8] that Plaintiff has severe physical impairments, including IBS, but
9] retains the residual functional capacity to perform light work jobs
that afford access to restroom facilities (A.R. 18-22). In reliance
11] on the testimony of the vocational expert, the ALJ determined that a
person having this capacity could perform Plaintiff’s past relevant
work as a sales clerk and a receptionist (A.R.22-23, 48-49).
14] Plaintiff submitted additional evidence to the Appeals Council, but
15] the Council denied review (A.R. 1-3, 1065-1111).
16
17 STANDARD OF REVIEW
18
19 Under 42 U.S.C. section 405(g), this Court reviews the
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.
Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue,
24] 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner,
25] 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is “such
26| relevant evidence as a reasonable mind might accept as adequate to
27|| support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
28] (1971) (citation and quotations omitted); see also Widmark v.
1] Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).
2
3 If the evidence can support either outcome, the court may
4 not substitute its judgment for that of the ALJ. But the
5 Commissioner’s decision cannot be affirmed simply by
6 isolating a specific quantum of supporting evidence.
7 Rather, a court must consider the record as a whole,
8 weighing both evidence that supports and evidence that
9 detracts from the [administrative] conclusion.
10
11] Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and
quotations omitted).
13
14 DISCUSSION
15
16 After consideration of the record as a whole, Defendant’s motion
is granted and Plaintiff’s motion is denied. The Administration’s
findings are supported by substantial evidence and are free from
material’ legal error.
20
21 Plaintiff argues that the ALJ erred by disbelieving Plaintiff's
22| testimony that she requires 5 to 6 daily unscheduled bathroom breaks
of 15 to 20 minutes duration. Actually, Plaintiff testified that she
24|| required such breaks while she was still working, i.e., before
25
26
The harmless error rule applies to the review of
27|| administrative decisions regarding disability. See Garcia v.
Commissioner, 768 F.3d 925, 932-33 (9th Cir. 2014); McLeod v.
astrue, 640 F.3d 881, 886-88 (9th Cir. 2011).
April 18, 2014 (A.R. 41-42). Plaintiff never testified that such
2| unpredictable bathroom frequency persisted for any continuous twelve
month period thereafter, and the treatment records suggest the
4|| opposite (A.R. 20-22 (and records cited therein)). A successful
5] disability claimant’s inability to engage in substantial gainful
6] activity must last, or be expected to last, for twelve continuous
months. See Barnhart v. Walton, 535 U.S. 212, 217-22 (2002);
Krumpelman v. Heckler, 767 F.2d 586, 589 (9th Cir. 1985), cert.
denied, 475 U.S. 1025 (1986). In any event, as discussed below, the
ALJ did not materially err in finding Plaintiff's testimony concerning
11] the intensity, persistence and limiting effects of her alleged
symptoms to be less than fully credible.
13
14 An ALJ’s assessment of a claimant’s credibility is entitled to
15] “great weight.” Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th Cir.
1990); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). Where, as
17] here, an ALJ finds that the claimant’s medically determinable
18] impairments reasonably could be expected to cause some degree of the
alleged symptoms of which the claimant subjectively complains, any
discounting of the claimant’s complaints must be supported by
specific, cogent findings. See Berry v. Astrue, 622 F.3d 1228, 1234
22 (9th Cir. 2010); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995);
but see Smolen v. Chater, 80 F.3d 1273, 1282-84 (9th Cir. 1996)
24] (indicating that ALJ must offer “specific, clear and convincing”
25| reasons to reject a claimant’s testimony where there is no evidence of
26] ///
///
///
“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) ;
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 complaints to be less than fully
10]| credible.
11
12 The ALJ properly pointed out that the objective medical evidence
does not support greater limitations than those the ALJ found to exist
14 (A.R. 20-22, 73-76, 338-40, 371, 546-47, 594, 997). An ALJ
permissibly may rely in part on a lack of supporting objective medical
16 ————
17 ? 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 3 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] evidence in discounting a claimant’s allegations of disabling
symptomatology. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir.
3] 2005) (“Although lack of medical evidence cannot form the sole basis
4| for discounting pain testimony, it is a factor the ALJ can consider in
his [or her] credibility analysis.”); Rollins v. Massanari, 261 F.3d
6] 853, 857 (9th Cir. 2001) (same); see also Carmickle v. Commissioner,
7| 533 F.3d at 1161 (“Contradiction with the medical record is a
8| sufficient basis for rejecting the claimant’s subjective testimony”) ;
SSR 16-3p (“[O]bjective medical evidence is a useful indicator to help
10] make reasonable conclusions about the intensity and persistence of
11] symptoms, including the effects those symptoms may have on the ability
to perform work-related activities .. .”).#
13
14 The ALJ also properly pointed out that there were lengthy periods
of time during which Plaintiff sought no medical treatment for her
allegedly disabling symptoms (A.R. 21 (and records cited therein)).
17] An unexplained failure to seek frequent medical treatment may
18] discredit a claimant’s allegations of disabling symptoms. See Molina
19] v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); Burch v. Barnhart, 400
F.3d at 681; Batson v. Commissioner, 359 F.3d 1190, 1196 (9th Cir.
2004); Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995); accord
Bunnel v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991); Fair v. Bowen,
885 F.2d 597, 603-604 (9th Cir. 1989).
24] ///
25
26
‘ In attempted explanation of one of these lengthy
periods, Plaintiff testified that her health insurance then was
in transition (A.R. 42). Plaintiff did not attempt to explain
28 any of the other periods during which she sought no treatment.
gg
1 Further, the ALJ accurately observed that Plaintiff did not
2| always comply with her recommended treatment (A.R. 21, 352, 393, 395,
3] 649-50, 659, 661, 974-75). Unexplained or inadequately explained
4| refusal of recommended treatment can cast doubt on a claimant’s
5| credibility. See Molina v. Astrue, 674 F.3d at 1113 (“We have long
6| held that, in assessing a claimant’s credibility the ALJ may properly
rely on unexplained or inadequately explained failure .. . to follow
8|| a prescribed course of treatment”) (citations and quotations omitted) ;
accord, Fair v. Bowen, 885 F.2d at 603; SSR 16-3p (“if the individual
10] fails to follow prescribed treatment that might improve symptoms, we
11] may find that the alleged intensity and persistence of an individual’s
12|| symptoms are inconsistent with the overall evidence of record”).
13
14 To the extent one or more of the ALJ’s stated reasons for
15] discounting Plaintiff’s credibility may have been invalid, the Court
nevertheless would uphold the ALJ’s credibility determination under
17| the circumstances presented. See Carmickle v. Commissioner, 533 F.3d
at 1162-63 (despite the invalidity of one or more of an ALJ’s stated
reasons, a court properly may uphold the ALJ’s credibility
determination where sufficient valid reasons have been stated). In
the present case, the ALJ stated sufficient valid reasons to allow the
Court to conclude that the ALJ discounted Plaintiff’s credibility on
23|| permissible grounds. See Moisa v. Barnhart, 367 F.3d at 885. The
Court therefore defers to the ALJ’s credibility determination. See
25| Lasich v. Astrue, 252 Fed. App’x 823, 825 (9th Cir. 2007) (court will
26|| defer to Administration’s credibility determination when the proper
27| process is used and proper reasons for the decision are provided) ;
28|| accord Flaten v. Secretary of Health & Human Services, 44 F.3d 1453,
1 1464 (9th Cir. 1995).5
2
3 CONCLUSION
4
5 For all of the foregoing reasons,6 Plaintiff’s motion for summary
6 judgment is denied and Defendant’s motion for summary judgment is
7 granted.
8
9 LET JUDGMENT BE ENTERED ACCORDINGLY.
10
11 DATED: May 11, 2020.
12
13
/s/
14 CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE
15
16
17
18
19
20
21
22 5 The Court should not and does not determine the
credibility of Plaintiff’s testimony concerning her symptoms.
23 Absent legal error, it is for the Administration, and not this
Court, to do so. See Magallanes v. Bowen, 881 F.2d 747, 750,
24
755-56 (9th Cir. 1989).
25
6 The Court has considered and rejected each of
26 Plaintiff’s arguments. Neither Plaintiff’s arguments nor the
circumstances of this case show any “substantial likelihood of
27 prejudice” resulting from any error allegedly committed by the
Administration. See generally McLeod v. Astrue, 640 F.3d at 887-
28