United States District Court, D. Arizona
G. Campbell United States District Judge.
Dolores Silva seeks review under 42 U.S.C. § 405(g) of
the final decision of the Commissioner of Social Security
which denied her disability insurance benefits and
supplemental security income under §§ 216(i),
223(d), and 1614(a)(3)(A) of the Social Security Act. Because
Plaintiff has not shown that the administrative law
judge's (“ALJ”) decision is unsupported by
substantial evidence or based on reversible legal error, the
Court will affirm.
is a 60 year old female who previously worked as a
housekeeping cleaner. A.R. 52, 209. Plaintiff applied for
disability insurance benefits and supplemental security
income on November 19, 2013, alleging disability beginning
November 2, 2013. A.R. 209-25. On February 24, 2016,
Plaintiff testified at a hearing before the ALJ. A.R. 42-54.
A vocational expert also testified. Id. On March 24,
2016, the ALJ issued a decision finding that Plaintiff is not
disabled within the meaning of the Social Security Act. A.R.
20-35. This became the Commissioner's final decision when
the Appeals Council denied Plaintiff's request for review
on May 12, 2017. A.R. 1-3.
district court reviews only those issues raised by the party
challenging the ALJ's decision. See Lewis v.
Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The Court
may set aside the Commissioner's disability determination
only if the determination is not supported by substantial
evidence or is based on legal error. Orn v. Astrue,
495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is
more than a scintilla, less than a preponderance, and
relevant evidence that a reasonable person might accept as
adequate to support a conclusion considering the record as a
whole. Id. In determining whether substantial
evidence supports a decision, the Court must consider the
record as a whole and may not affirm simply by isolating a
“specific quantum of supporting evidence.”
Id. (internal citations and quotation marks
omitted). As a general rule, “[w]here the evidence is
susceptible to more than one rational interpretation, one of
which supports the ALJ's decision, the ALJ's
conclusion must be upheld.” Thomas v.
Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations
omitted). Harmless error principles apply in the Social
Security context. Molina v. Astrue, 674 F.3d 1104,
1115 (9th Cir. 2012). An error is harmless if there remains
substantial evidence supporting the ALJ's decision and
the error does not affect the ultimate nondisability
is responsible for resolving conflicts in medical testimony,
determining credibility, and resolving ambiguities.
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995). In reviewing the ALJ's reasoning, the Court is
“not deprived of [its] faculties for drawing specific
and legitimate inferences from the ALJ's opinion.”
Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir.
The ALJ's Five-Step Evaluation Process.
determine whether a claimant is disabled for purposes of the
Social Security Act, the ALJ follows a five-step process. 20
C.F.R. § 404.1520(a). The claimant bears the burden of
proof on the first four steps, and the burden shifts to the
Commissioner at step five. Tackett v. Apfel, 180
F.3d 1094, 1098 (9th Cir. 1999). To establish disability, the
claimant must show that (1) she is not currently working, (2)
she has a severe impairment, and (3) this impairment meets or
equals a listed impairment or (4) her residual functional
capacity (“RFC”) prevents her performance of any
past relevant work. If the claimant meets her burden through
step three, the Commissioner must find her disabled. If the
inquiry proceeds to step four and the claimant shows that she
is incapable of performing past relevant work, the
Commissioner must show in the fifth step that the claimant is
capable of other work suitable for her RFC, age, education,
and work experience. 20 C.F.R. § 404.1520(a)(4).
one, the ALJ found that Plaintiff meets the insured status
requirements of the Social Security Act through December 31,
2018, and has not engaged in substantial gainful activity
since November 2, 2013. A.R. 23. At step two, the ALJ found
that Plaintiff has the following severe impairments: diabetes
mellitus, obesity, and degenerative disc disease of the
lumbar spine. Id. The ALJ also noted the following
medically determinable but non-severe impairments:
hypertension, hyperlipidemia, gastroesophageal reflux
disease, dizziness, vertigo, diabetic retinopathy, depressive
disorder, and anxiety disorder. A.R. 23-26. At step three,
the ALJ determined that Plaintiff does not have an impairment
or combination of impairments that meets or medically equals
a listed impairment. A.R. 26. At step four, the ALJ found
that Plaintiff has the RFC to perform the full range of light
work and is able to perform her past relevant work as a
housekeeping cleaner. A.R. 27-34.
argues that the ALJ erred by rejecting her symptom testimony,
the opinion of her treating physician, Dr. Kenneth Smith, and
the opinion of an agency examining physician, Dr. Melanie
Alarcio. Doc. 16.
Plaintiff's Symptom Testimony.
evaluating a claimant's symptom testimony, the ALJ must
engage in a two-step analysis. First, the ALJ must determine
whether the claimant presented objective medical evidence of
an impairment that could reasonably be expected to produce
the alleged symptoms. Garrison v. Colvin, 759 F.3d
995, 1014 (9th Cir. 2014). The claimant is not required to
show that her impairment could reasonably be expected to
cause the severity of the symptoms she has alleged, only that
it could reasonably have caused some degree of the symptoms.
Id. Second, if there is no evidence of malingering,
the ALJ may reject the claimant's symptom testimony only
by giving specific, clear, and convincing reasons.
Id. at 1015. “This is not an easy requirement
to meet: ‘The clear and convincing standard is the most
demanding required in Social Security cases.'”
Id. (quoting Moore v. Comm'r of Soc. Sec.
Admin., 278 F.3d 920, 924 (9th Cir. 2002)).
testified that she stopped working in November 2013 because
she “was unable to stand the pain on [her] back.”
A.R. 46. She testified that she has pain in her back, leg,
waist, and neck. A.R. 49. She stated that she takes two
medications, which calm the pain “to a certain point,
” and she stopped going to physical therapy because she
“was in a lot of pain afterwards.” A.R. 46-47.
Her impairments cause dizziness, and she has found no
treatment that helps the dizziness. A.R. 47-48. On a typical
day she gets up, grooms herself, tries to prepare breakfast
and do some chores, and then rests until she can stand up and
try to do something again. A.R. 48. She checks her
blood-sugar level three times per day, and the level is never
steady. Id. She can sit “maybe about half an
hour” at a time, stand “[m]aybe 30, 40
minutes” at a time, and lift “probably under ten
pounds.” A.R. 49-50. She uses a cane “[a]ll the
time” and needs to lie down for about 30 to 40 minutes
after she sits or stands for a long time. A.R. 50-51.
Plaintiff takes medication for her depression, anxiety, and
panic attacks, “feel[s] like doing nothing, ”
sometimes sleeps a lot or has trouble sleeping, loses her
appetite, and does not “feel the desire to continue
living.” A.R. 50-51.
function reports from January and June 2014, Plaintiff
reported dizziness, fatigue, trouble sleeping, and pain in
her arms, hips, and back. A.R. 266-74, 294-302. In January
she stated that she prepares “sandwiches, rice, beans,
complete meals” on a daily basis with someone's
help and it takes about 30 minutes, but in June she reported
that she does not prepare her own meals. A.R. 268, 296.
Plaintiff also reported in January that someone accompanies
her to shop for groceries once or twice per week for about an
hour, but in June she reported that she does not shop and
leaves the house only for doctors' appointments. A.R.
269-70, 297. She sews, watches TV, and reads, but sewing has
become difficult due to arm pain. A.R. 270, 298. She reported
that she can walk about one block before needing to rest for
about 20 minutes. A.R. 271, 299. She did not describe using a
cane in either report. A.R. 272, 300.
found that Plaintiff's medically determinable impairments
could reasonably be expected to cause the alleged symptoms,
but that Plaintiff's statements concerning the intensity,
persistence, and limiting effects of these symptoms were not
entirely credible. A.R. 28. She provided the following
reasons: (1) the medical evidence does not “fully
support” Plaintiff's allegations, (2) certain
medical evidence is inconsistent with Plaintiff's
allegations, (3) Plaintiff's own inconsistent statements
cast doubt on her credibility, (4) Plaintiff received
“conservative and routine” treatment, (5)
Plaintiff “exerted possible poor effort” at the
consultative examination, and (6) Plaintiff failed to attend
physical therapy to improve her condition. A.R. 28-30. The
ALJ did not find that Plaintiff was malingering.
argues that the ALJ's reasons do not satisfy the
clear-and-convincing standard because each reason is either
legally insufficient, overly general, or based on
speculation. Doc. 16 at 20-23.
The ALJ's First and Second Reasons.
Ninth Circuit has made clear that if “the claimant
produces objective medical evidence of an underlying
impairment, an adjudicator may not reject a claimant's
subjective complaints based solely on a lack of objective
medical evidence to fully corroborate the alleged severity of
pain.” Bunnell v. Sullivan, 947 F.2d 341, 345
(9th Cir. 1991); Garrison v. Colvin, 759 F.3d 995,
1014 (quoting Smolen v. Chater, 80 F.3d 1273, 1282
(9th Cir. 1996) (a claimant need not produce “objective
medical evidence of the pain or fatigue itself, or the
severity thereof”)). But an ALJ may rely on
contradictory medical evidence to discredit symptom
testimony, so long as she “make[s] specific findings
justifying [her] decision.” Carmickle v.
Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th
Cir. 2008). “‘General findings are insufficient;
rather, the ALJ must identify what testimony is not credible
and what evidence undermines the claimant's
complaints.'” Brown-Hunter v. Colvin, 806
F.3d 487, 493 (9th Cir. 2015) (quoting Reddick v.
Chater, 157 F.3d 715, 722 (9th Cir. 1998)).
ALJ's statement that the medical evidence does not
“fully support” the alleged severity of
Plaintiff's symptoms is not a clear and convincing reason
to discredit Plaintiff's testimony. Burnell, 947
F.2d at 345. Plaintiff asserts that the ALJ made this
statement and “then just launched into a discussion of
the medical evidence, but with no tie-in between any specific
evidence and any particular symptom.” Doc. 16 at 22.
The Court does not entirely agree with this characterization.
regard to Plaintiff's testimony concerning her back pain,
the ALJ cited lumbosacral x-rays from February 2011 showing
only “mild” degenerative changes in the lumbar
spine (citing A.R. 367, 569), a March 2011 CT scan of the
lumbar spine showing no canal stenosis (citing A.R. 369), a
February 2011 bone density study showing no abnormalities
(A.R. 569), a doctor's note in February 2011 that
Plaintiff's joints “revealed mild compression
tenderness about the MCP, PIP, and wrists” (citing A.R.
569), and a February 2015 MRI showing “mild left
paracentral L4-5 disc protrusion slightly effacing the L5
nerve root on the left, right lateral L5-S1 disc protrusion
with some foraminal stenosis, and prominent facet arthropathy
at ¶ 5-S1” (citing A.R. 730). A.R. 28. The ALJ
concluded that although Plaintiff “is likely to have
some pain and restrictions, there is no evidence of any
severe stenosis, nerve root impingement, or other significant
findings or foraminal narrowing to cause the pain and
restrictions alleged.” A.R. 28. But this is the type of
showing that a claimant is not required to make. As noted
above, the claimant is not required to show that her
impairment could reasonably be expected to cause the severity
of the symptoms she has alleged, only that it could
reasonably have caused some degree of the symptoms. See
Garrison, 759 F.3d at 1014. The evidence cited by the
ALJ does not appear to contradict any of Plaintiff's
testimony, particularly where most of the records predate
Plaintiff's alleged disability onset date. More
importantly, the ALJ's discussion fails to provide the
type of specific explanation necessary to support such a
finding. See Brown-Hunter, 806 F.3d at 493. This is
not a clear and convincing reason to reject Plaintiff's
testimony regarding her back pain.
discredited Plaintiff's “allegations of complete
prostration” based on “multiple clinical
examinations” showing no “neurological deficits,
weakness, or other manifestations, which would be supportive
of” the allegations. A.R. 29 (citing A.R. 535, 629,
647, 685). But the ALJ had already determined that
Plaintiff's medically determinable impairments could
reasonably produce this symptom. Plaintiff therefore was not
required to substantiate the severity of the symptom with
medical evidence. See Garrison, 759 F.3d at 1014.
Review of Plaintiff's testimony and the records cited by
the ALJ does not reveal any obvious contradictions, and the
ALJ's opinion fails to identify any. The opinion simply
lists medical evidence that is “supportive” of
the RFC determination without specifically identifying any
inconsistency between something Plaintiff asserted and
something in the records. A.R. 29. This is not a clear and
convincing reason to reject Plaintiff's testimony
regarding fatigue and weakness.
respect to Plaintiff's dizziness, the ALJ concluded that
it was “not substantially supported by the record[,
]” and the record “did not include substantive
information regarding [her] dizziness outside of [her]
subjective complaints.” A.R. 29. The ALJ cited a March
2013 duplex scan showing “no evidence of carotid
stenosis or occlusion[, ] and vertebral flow was
antegrade.” A.R. 29. The ALJ did not explain why this
finding - from months before Plaintiff's disability onset
date -contradicts Plaintiff's claim of dizziness.
also cited a number of records which she viewed as
inconsistent with Plaintiff's reports of dizziness. A.R.
29 (citing A.R. 547, 549, 621, 634, 640, 646, 653). Two of
these records are notes from July 2014 visits with Dr.
Jasjeet Kaur, each containing the following statement:
“Denies, . . . orthostatic dizziness.” A.R. 547,
549. The remaining records, issued between June 2015 and
December 2015, come from visits with Dr. Smith and state that
Plaintiff was “negative” for dizziness (A.R. 621,
634, 640, 646, 653), although Dr. Smith's treatment notes
from other visits during 2013, 2014, and 2015 state that
Plaintiff was “positive” for dizziness. (A.R.
425, 433, 438, 461, 466, 628, 678, 684, 690, 701, 707, 718,
724). The Court finds that although there is conflicting
evidence regarding Plaintiff's dizziness, the ALJ gave
sufficient reasons for discrediting this symptom because the
ALJ “identif[ied] what testimony [was] not credible and
what evidence undermines” the testimony.
Brown-Hunter, 806 F.3d at 493. The fact that
Plaintiff denied dizziness at multiple appointments during
the relevant period is a sufficiently clear and convincing
reason to discredit Plaintiff's testimony that she gets
dizzy every time she moves her head.
ALJ's decision next states that “the record shows
that [Plaintiff] had no significant limitations from”
her diabetes. A.R. 29. In support, the decision cites 121
pages of Dr. Smith's treatment notes as evidence that
“[a]t many points in the record [Plaintiff's]
diabetes was note[d] as being stable[.]” Id.
(citing 619-739). The decision also notes that Plaintiff was
not always compliant with her medications and treatment, and
was “noted as needing further attention to her diabetic
control.” Id. (citing A.R. 534, 570). And
Plaintiff “denied neuropathy and foot
complications” - common symptoms of diabetes - at a
December 2015 appointment with Dr. Kaur. Id. (citing
A.R. 740). The ALJ acknowledged that Plaintiff's obesity
“likely exacerbates her pain, ” but found that
“there is no evidence it is of the severity so as to
preclude work.” A.R. 30. Although this discussion
identifies specific medical evidence in the record, it
provides no link between the evidence and Plaintiff's
testimony. It is unclear which testimony the ALJ believed was
inconsistent with these records. This is not a clear and
rejected Plaintiff's testimony that she needed a cane
because “there is not consistent evidence
showing” the cane is necessary. A.R. 30. The decision
notes that Plaintiff did not report cane use in her function
reports, Plaintiff “was observed to have normal gait
without the use of any assistive device” at a
psychological evaluation two months before she requested the
cane, and treatment records consistently state that Plaintiff
had normal gait. Id. (citing A.R. 300, 494, 535,
580-84, 711, 714, 385-451, 529-53, 619-739). Plaintiff argues
that normal gait is not inconsistent with the need for a cane
because “a cane could reasonably be used for other
reasons, such as weakness in the legs, or lack of feeling in
the feet.” Doc. 16 at 22. But Plaintiff does not cite
support in the record for this proposition, and Plaintiff
failed to explain this at the hearing. The ALJ identified a
specific inconsistency between Plaintiff's testimony and
evidence in the record. The ALJ did not err in rejecting this
the Court finds that the ALJ's first and second reasons
are insufficient to the extent they simply summarize medical
evidence or require Plaintiff to substantiate the severity of
her symptoms. But the ALJ adequately identified two clear
inconsistencies between Plaintiff's testimony and medical
evidence regarding dizziness and cane use. This is a clear
and convincing reason.
The ALJ's Third Reason.
found that “the information provided by [Plaintiff]
generally may not be entirely reliable” because of two
inconsistencies in her statements. A.R. 30. First, Plaintiff
stated at the hearing that she does not babysit, but at a
July 2014 examination with agency psychologist Jose Abreu,
she stated: “I take care of my little grandchild as
much as I can[.]” A.R. 46, 499. Second, notes from a
February 2015 visit with Dr. Smith indicate that Plaintiff
was planning on “leaving the country, ” but
Plaintiff testified at the hearing that she can only sit for
about half an hour at a time. A.R. 49, 682. The ALJ reasoned
that these statements are inconsistent because “any
international travel would require extended sitting.”
respect to babysitting, Plaintiff argues that the
inconsistency is attributable to the two years that separate
the statements. Doc. 16 at 22. With respect to international
travel, Plaintiff argues that there “is no evidence as
to what travel actually occurred, or, if so, what
accommodations were used[.]” Id. at 22-23.
Plaintiff also argues more generally that ALJ credibility
determinations should not “delve into wide-ranging
scrutiny of the claimant's character and apparent
truthfulness.” Id. at 21 (quoting Trevizo
v. Berryhill, 871 F.3d 664, 679 n.5 (9th Cir. 2017)).
The Court agrees. The fact that Plaintiff reported trying to
take care of her grandchild over two years before the hearing
does not necessarily contradict Plaintiff's statement at
the hearing that she does not babysit. And an indication that
Plaintiff was leaving the country, without any information as
to whether she in fact left the ...