Opinion
Case No. 2:16-CV-02425 (VEB)
04-03-2017
ULRIKA SVENSON VAUGHN, Plaintiff, v. NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.
DECISION AND ORDER
I. INTRODUCTION
In November of 2014, Plaintiff Ulrika Svenson Vaughn applied for Disability Insurance benefits and Supplemental Security Income benefits under the Social Security Act. The Commissioner of Social Security denied the applications.
On January 23, 2017, Nancy Berryhill took office as Acting Social Security Commissioner. The Clerk of the Court is directed to substitute Acting Commissioner Berryhill as the named defendant in this matter pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure.
Plaintiff, acting pro se, commenced this action seeking judicial review of the Commissioner's denial of benefits pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3).
The parties consented to the jurisdiction of a United States Magistrate Judge. (Docket No. 8, 11). On January 17, 2017, this case was referred to the undersigned pursuant to General Order 05-07. (Docket No. 20).
II. BACKGROUND
Plaintiff applied for benefits on November 14, 2014, alleging disability beginning December 17, 2011. (T at 160-61, 162-67). The applications were denied initially and on reconsideration. Plaintiff requested a hearing before an Administrative Law Judge ("ALJ").
Citations to ("T") refer to the administrative record at Docket No. 15.
On June 11, 2015, a hearing was held before ALJ Elizabeth Lishner. (T at 41). Plaintiff appeared pro se, was advised of her right to an attorney, and consented to proceed without representation. (T at 44-45). Plaintiff testified. (T at 51-63). The ALJ also received testimony Gail Maron, a vocational expert. (T at 64-67).
On October 21, 2015, the ALJ issued a written decision denying the applications for benefits. (T at 25-40). The ALJ's decision became the Commissioner's final decision on February 24, 2016, when the Appeals Council denied Plaintiff's request for review. (T at 1-6).
On April 8, 2016, Plaintiff filed this action seeking judicial review of the Commissioner's denial of benefits. (Docket No. 1). The Commissioner interposed an Answer on October 17, 2016. (Docket No. 14). Plaintiff filed a motion for summary judgment with supporting papers on November 14, 2016. (Docket No. 16). The Commissioner filed a memorandum in opposition on December 15, 2016. (Docket No. 18). Plaintiff filed a further memorandum in support on December 29, 2016. (Docket No. 19).
After reviewing the pleadings, the parties' memoranda, and administrative record, this Court finds that the Commissioner's decision must be affirmed and this case be dismissed.
III. DISCUSSION
A. Sequential Evaluation Process
The Social Security Act ("the Act") defines disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a claimant shall be determined to be under a disability only if any impairments are of such severity that he or she is not only unable to do previous work but cannot, considering his or her age, education and work experiences, engage in any other substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).
The Commissioner has established a five-step sequential evaluation process for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step one determines if the person is engaged in substantial gainful activities. If so, benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the decision maker proceeds to step two, which determines whether the claimant has a medically severe impairment or combination of impairments. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
If the claimant does not have a severe impairment or combination of impairments, the disability claim is denied. If the impairment is severe, the evaluation proceeds to the third step, which compares the claimant's impairment(s) with a number of listed impairments acknowledged by the Commissioner to be so severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled. If the impairment is not one conclusively presumed to be disabling, the evaluation proceeds to the fourth step, which determines whether the impairment prevents the claimant from performing work which was performed in the past. If the claimant is able to perform previous work, he or she is deemed not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, the claimant's residual functional capacity (RFC) is considered. If the claimant cannot perform past relevant work, the fifth and final step in the process determines whether he or she is able to perform other work in the national economy in view of his or her residual functional capacity, age, education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987).
The initial burden of proof rests upon the claimant to establish a prima facie case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden is met once the claimant establishes that a mental or physical impairment prevents the performance of previous work. The burden then shifts, at step five, to the Commissioner to show that (1) plaintiff can perform other substantial gainful activity and (2) a "significant number of jobs exist in the national economy" that the claimant can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984).
B. Standard of Review
Congress has provided a limited scope of judicial review of a Commissioner's decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner's decision, made through an ALJ, when the determination is not based on legal error and is supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999).
"The [Commissioner's] determination that a plaintiff is not disabled will be upheld if the findings of fact are supported by substantial evidence." Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 1983)(citing 42 U.S.C. § 405(g)). Substantial evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n 10 (9th Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-02 (9th Cir. 1989). Substantial evidence "means such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971)(citations omitted). "[S]uch inferences and conclusions as the [Commissioner] may reasonably draw from the evidence" will also be upheld. Mark v. Celebreeze, 348 F.2d 289, 293 (9th Cir. 1965). On review, the Court considers the record as a whole, not just the evidence supporting the decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989)(quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 1980)).
It is the role of the Commissioner, not this Court, to resolve conflicts in evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational interpretation, the Court may not substitute its judgment for that of the Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be set aside if the proper legal standards were not applied in weighing the evidence and making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the administrative findings, or if there is conflicting evidence that will support a finding of either disability or non-disability, the finding of the Commissioner is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).
C. Commissioner's Decision
The ALJ determined that Plaintiff had not engaged in substantial gainful activity since December 17, 2011, the alleged onset date, and met the insured status requirements of the Social Security Act through December 31, 2011 (the "date last insured"). (T at 35). The ALJ found that Plaintiff's chronic pain disorder and anxiety disorder were "severe" impairments under the Act. (Tr. 35).
However, the ALJ concluded that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the impairments set forth in the Listings. (T at 35).
The ALJ determined that Plaintiff retained the residual functional capacity ("RFC") to perform light work, as modified to allow for only occasional postural activities and simple, repetitive tasks, with no fast-paced work. (T at 35).
The ALJ found that Plaintiff could not perform her past relevant work. (T at 35). Considering Plaintiff's age, education, work experience, and residual functional capacity, the ALJ found that jobs exist in significant numbers in the national economy that Plaintiff can perform. (T at 35).
Accordingly, the ALJ determined that Plaintiff was not disabled within the meaning of the Social Security Act between December 17, 2011 (the alleged onset date) and October 26, 2015 (the date of the decision) and was therefore not entitled to benefits. (T at 35-36). As noted above, the ALJ's decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review. (T at 1-6).
D. Disputed Issues
As a threshold matter, this Court is mindful that Plaintiff is proceeding pro se. A pro se litigant's pleadings are construed more liberally than pleadings prepared by counsel. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972); Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). A pro se litigant should receive leniency with respect to non-compliance with technical or procedural rules, but "a pro se litigant is not excused from knowing the most basic pleading requirements." Am. Ass'n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1107-08 (9th Cir. 2000); Draper v. Coombs, 792 F.2d 915, 924 (9th Cir. 1986).
Plaintiff offers two (2) main arguments in support of her claim that the Commissioner's decision should be reversed. First, she contends that her impairments met or equal Listings impairments. Second, she challenges the ALJ's credibility determination. This Court will address both arguments in turn.
IV. ANALYSIS
A. Listings
At step three of the sequential evaluation, the ALJ must determine whether the claimant has an impairment or combination of impairments that meets or equals an impairment listed in Appendix 1 of the Regulations (the "Listings"). See 20 C.F.R. §§ 404.1520(d), 416.920(d). If a claimant meets or equals a listed impairment, he or she is "conclusively presumed to be disabled and entitled to benefits." Bowen v. City of New York, 476 U.S. 467, 471, 106 S. Ct. 2022, 90 L. Ed. 2d 462 (1986); see also Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993); see also 20 C.F.R. §§ 404.1525(a); 416.925(a).
An impairment meets a Listing if the impairment matches all of the medical criteria specified in the Listing. Sullivan v. Zebley, 493 U.S. 521, 530, 110 S. Ct. 885, 107 L. Ed. 2d 967 (1990); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). An impairment or combination of impairments that satisfies, but not all of the criteria, does not qualify. Sullivan, 493 U.S. at 530; Tackett, 180 F.3d at 1099.
The claimant bears the burden of proving that she has an impairment or combination of impairments that meets or equals the criteria of a listed impairment. To satisfy this burden, the claimant must offer medical findings equal in severity to all requirements, which findings must be supported by medically acceptable clinical and laboratory diagnostic techniques. 20 C.F.R. § 416.926(b).
If a claimant's impairment does not satisfy the Listings criteria, he or she may still be disabled if the impairment "equals" a listed impairment. 20 C.F.R. § 404.1520(d). Equivalence will be found if the medical findings are (at a minimum) equal in severity and duration to the Listed impairment. Marcia v. Sullivan, 900 F.2d 172, 175 (9th Cir. 1990). To determine medical equivalence, the Commissioner compares the findings concerning the alleged impairment with the medical criteria of the listed impairment. 20 C.F.R. §§ 416.924(e), 416.926.
If a claimant has multiple impairments, the ALJ must determine "whether the combination of [the] impairments is medically equal to any listed impairment." 20 C.F.R. § 404.1526(a). The claimant's symptoms "must be considered in combination and must not be fragmentized in evaluating their effects." Lester v. Chater, 81 F.3d 821, 829 (9th Cir. 1996). "A finding of equivalence must be based on medical evidence only." See Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001)(citing 20 C.F.R. § 1529(d)(3)).
"[I]n determining whether a claimant equals a listing under step three . . . the ALJ must explain adequately his evaluation of alternative tests and the combined effects of the impairments." Marcia, 900 F.2d at 176 (9th Cir. 1990). A remand may be required if ALJ fails adequately to consider a Listing that plausibly applies to the claimant's case. See Lewis, 236 F.3d at 514.
In this case, the ALJ concluded that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the impairments set forth in the Listings. (T at 35). Plaintiff challenges this finding, arguing that her impairments met or medically equal the impairments set forth in §§1.04 and 12.06 of the Listings. For the following reasons, this Court finds the ALJ's Listings analysis supported by substantial evidence and consistent with applicable law.
Listing § 1.04 requires a disorder of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of the nerve root or spinal cord, along with one of the following:
A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine);
B. Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue biopsy, or by appropriate medically acceptable imaging, manifested by severe burning or painful dysesthesia, resulting in the need for changes in position or posture more than once every 2 hours;
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate effectively, as defined in 1.00B2b.
Here, the medical records indicated that Plaintiff had normal range of motion, motor strength, sensation, coordination, and reflexes in her lower extremities, without any joint deformities, crepitus (grating sound or sensation), or effusion (escape of fluid). (T at 294, 363). She was described as walking on toes and heels. (T at 363). Straight leg raise test was negative bilaterally. (T at 363). On examination, Plaintiff was noted to walk with normal gait and station and without assistance. (T at 268, 280, 294, 296, 361, 363).
Dr. Sohail K. Afra, a consultative examiner, opined that Plaintiff could occasionally lift/carry up to 50 pounds and frequently lift up to 20 pounds; sit for 8 hours in an 8-hour workday day; stand/walk for 6 hours in an 8-hour workday; and frequently perform postural activities (e.g. balancing, stooping, kneeling, crouching, crawling). (T at 368).
Thus, there was substantial evidence to support the ALJ's finding that Plaintiff's impairments did not meet or equal a Listing impairment, including Listing § 1.04.
Listing § 12.06 requires, in pertinent part, a medically documented diagnosis of anxiety disorder, characterized by three or more of the following: restlessness, easy fatigue, difficulty concentrating, irritability, muscle tension, sleep disturbance.
The ALJ found that Plaintiff's anxiety disorder is a severe impairment and, thus, this aspect of the Listing is satisfied. However, to meet or equal the Listing, the claimant must also satisfy one of two additional criteria (known generally as the "B" and "C" criteria).
The "B" criteria require a showing of extreme limitation in one of the following, or marked limitation in the two of the following: understanding, remembering, or applying information; interacting with others; concentration, persistence or pace; adaptation and self-management. The "C" criteria require a showing of both: (a) medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that diminishes the claimant's symptoms and signs of mental disorder; and (b) marginal adjustment, i.e. minimal capacity to adapt to changes in environment or to demands not already part of daily life.
Here, the evidence indicated that Plaintiff lived alone. (T at 360). She demonstrated independence in several varied activities of daily living (dressing, personal care needs, pet care, shopping, and letter writing). (T at 54, 61, 352). Dr. Rose Colonna, a consultative psychiatric examiner, assessed mild limitation with regard to complex instructions or decisions, but no limitation as to simple instructions or decisions and only mild limitation as to social interaction and workplace adjustment. (T at 355-56). Dr. Colonna assigned a Global Assessment of Functioning ("GAF") score of 60 (T at 354), which is indicative of moderate symptoms or difficulty in social, occupational or educational functioning. Metcalfe v. Astrue, No. EDCV 07-1039, 2008 US. Dist. LEXIS 83095, at *9 (Cal. CD Sep't 29, 2008). Clinical notes generally described Plaintiff as cooperative, with clear speech, organized thoughts, and normal affect. (T at 294, 296, 350, 352, 360-61). There was no evidence that Plaintiff lived in a "highly supportive" environment.
"A GAF score is a rough estimate of an individual's psychological, social, and occupational functioning used to reflect the individual's need for treatment." Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir. 1998). --------
Plaintiff does not offer detailed argumentation as to why she believes her impairments meet or equal these Listings. Construed liberally, her argument is, in essence, that her impairments are more limiting than the ALJ found. However, it is the role of the Commissioner, not this Court, to resolve conflicts in evidence. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989); Richardson, 402 U.S. at 400. If the evidence supports more than one rational interpretation, this Court may not substitute its judgment for that of the Commissioner. Allen v. Heckler, 749 F.2d 577, 579 (9th 1984). If there is substantial evidence to support the administrative findings, or if there is conflicting evidence that will support a finding of either disability or nondisability, the Commissioner's finding is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). Here, the ALJ's decision was supported by substantial evidence and must therefore be sustained. See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)(holding that if evidence reasonably supports the Commissioner's decision, the reviewing court must uphold the decision and may not substitute its own judgment).
B. Credibility
A claimant's subjective complaints concerning his or her limitations are an important part of a disability claim. Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004)(citation omitted). The ALJ's findings with regard to the claimant's credibility must be supported by specific cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of malingering, the ALJ's reasons for rejecting the claimant's testimony must be "clear and convincing." Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). "General findings are insufficient: rather the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints." Lester, 81 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993).
However, subjective symptomatology by itself cannot be the basis for a finding of disability. A claimant must present medical evidence or findings that the existence of an underlying condition could reasonably be expected to produce the symptomatology alleged. See 42 U.S.C. §§423(d)(5)(A), 1382c (a)(3)(A); 20 C.F.R. § 404.1529(b), 416.929; SSR 96-7p.
In this case, Plaintiff testified as follows: She last worked in December of 2011. (T at 51). She lives alone. (T at 53). She has a driver's license, but it expired. (T at 53). She walks to Walgreen's for shopping. (T at 54). She supports herself with public assistance and borrowing from friends. (T at 55). She takes Aleve for menstrual pain, but otherwise does not take pain medication. (T at 56-57). She cannot work because of difficulty handling deadlines and problems concentrating due to pain. (T at 57). Back pain makes walking difficult and causes problems with balance. (T at 58). She can lift approximately 10-15 pounds and walk for about 20 minutes. (T at 61).
The ALJ found that Plaintiff's statements regarding the intensity, persistence, and limiting effects of her symptoms were not fully credible. (T at 31).
For the reasons that follow, this Court finds the ALJ's decision consistent with applicable law and supported by substantial evidence. No treating or examining medical source assessed Plaintiff with disabling mental or physical impairments. (T at 31-32). The consultative examiner opinions, provided by Dr. Afra and Dr. Colonna, were consistent with the ALJ's decision. (T at 347-57, 358-70) Although lack of supporting medical evidence cannot form the sole basis for discounting pain testimony, it is a factor the ALJ may consider when analyzing credibility. Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). In other words, an ALJ may properly discount subjective complaints where, as here, they are contradicted by medical records. Carmickle v. Comm'r of Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002).
Plaintiff's treatment was generally routine and conservative and there is no indication that any provider recommended a more robust level of care. Indeed, it appears Plaintiff received relief from over-the-counter medication and self-help activities (stretching and laying on tennis balls). (T at 54-57, 364). "Evidence of 'conservative treatment' is sufficient to discount a claimant's testimony regarding the severity of an impairment." Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007). In addition, Plaintiff's claims of difficulty walking and problems with social interaction were contradicted by clinical findings indicating that she could ambulate without assistance and could interact appropriately with others. (T at 361-63, 350-52). Further, she engaged in a variety of activities of daily living, such as pet care, slow yoga, letter writing, interacting with friends, and shopping at Walgreen's. (T at 31, 54-55, 62).
When assessing a claimant's credibility, the ALJ may employ "ordinary techniques of credibility evaluation." Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1224 n.3 (9th Cir. 2010)(quoting Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996)). Activities of daily living are a relevant consideration in assessing a claimant's credibility. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Although the claimant does not need to "vegetate in a dark room" to be considered disabled, Cooper v. Brown, 815 F.2d 557, 561 (9th Cir. 1987), the ALJ may discount a claimant's testimony to the extent his or her activities of daily living "contradict claims of a totally debilitating impairment." Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2011).
Where, as here, substantial evidence supports the ALJ's credibility determination, this Court may not overrule the Commissioner's interpretation even if "the evidence is susceptible to more than one rational interpretation." Magallanes, 881 F.2d 747, 750 (9th Cir. 1989); see also Morgan v. Commissioner, 169 F.3d 595, 599 (9th Cir. 1999)("[Q]uestions of credibility and resolutions of conflicts in the testimony are functions solely of the [Commissioner].").
For the reasons outlined above, this Court finds no reversible error with regard to the ALJ's credibility determination.
V. CONCLUSION
After carefully reviewing the administrative record, this Court finds substantial evidence supports the Commissioner's decision, including the objective medical evidence and supported medical opinions. It is clear that the ALJ thoroughly examined the record, afforded appropriate weight to the medical evidence, including the assessments of the treating and examining medical providers and medical experts, and afforded the subjective claims of symptoms and limitations an appropriate weight when rendering a decision that Plaintiff is not disabled. This Court finds no reversible error and because substantial evidence supports the Commissioner's decision, the Commissioner is GRANTED summary judgment and that Plaintiff's motion for judgment summary judgment is DENIED.
VI. ORDERS
IT IS THEREFORE ORDERED that:
Judgment be entered AFFIRMING the Commissioner's decision and DISMISSING this action, and it is further ORDERED that
The Clerk of the Court file this Decision and Order and serve copies upon counsel for the parties.
DATED this 3rd day of April, 2017,
/s/Victor E. Bianchini
VICTOR E. BIANCHINI
UNITED STATES MAGISTRATE JUDGE