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Self v. Commissioner of Social Security

United States District Court, E.D. California

March 21, 2014

RACHEL Y. SELF, Plaintiff,


CRAIG M. KELLISON, Magistrate Judge.

Plaintiff, who is proceeding with retained counsel, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are plaintiff's motion for summary judgment (Doc. 17) and defendant's cross-motion for summary judgment (Doc. 20). For the reasons discussed below, the court will deny plaintiff's motion for summary judgment or remand and grant the Commissioner's cross-motion for summary judgment.


Plaintiff applied for social security benefits on April 3, 2007, alleging an onset of disability on July 1, 2003, due to disabilities including carpal tunnel, plantar fasciitis in right foot, and bulging discs (Certified administrative record ("CAR") 92, 169-70, 212-13). Plaintiff's claim was denied initially and upon reconsideration. Plaintiff requested an administrative hearing, which was held on June 11, 2009 with a supplemental hearing on March 24, 2010, before Administrative Law Judge ("ALJ") Peter F. Belli. In a May 12, 2010, decision, the ALJ concluded that plaintiff is not disabled[2] based on the following findings:

1. The claimant last met the insured status requirements of the Social Security Act on March 31, 2007.
2. The claimant did not engage in substantial gainful activity during the period from her alleged onset date of July 1, 2003 through her date last insured of March 31, 2007 (20 CFR 404.1571 et seq. ).
3. Through the date last insured, the claimant had the following severe impairments: right plantar fasciitis, right tarsal tunnel syndrome, degenerative disc disease of the lumbosacral spine, lumbar strain, mild obesity, and depression (20 CFR 404.1520(c)).
4. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) except the claimant is precluded from prolonged standing/walking. She is unable to use her right lower extremity to manipulate foot controls. She is precluded from climbing ladders, ropes, or scaffolds. She may occasionally climb ramps and stair, and occasionally stoop, kneel, crouch, and crawl. She is unlimited in her ability to understand, remember, and carry out short, simple instructions; but she is moderately limited [FN1] in her ability to understand, remember, and carry out detailed instructions. The claimant is unlimited in her ability to make judgments on simple decisions, but slightly limited [FN2] in the ability to make judgments on detailed decisions. The claimant is slightly limited in her ability to interact appropriately with supervisors, co-workers, and the public. She is moderately limited in her ability to respond appropriately to changes in a routine work setting, and in her ability to respond appropriately to work pressures in a usual work setting.
[FN1: Moderately limited is defined as greater than mildly limited and less than markedly limited, but still able to function satisfactorily in this area.]
[FN2: Slightly limited is defined as mild limitations in this area, but generally functions well.]
6. Through the date last insured, the claimant was unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on May 13, 1975 and was 31 years old, which is defined as a younger individual age 18-44, on the date last insured (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled, " whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Throught the date last insured, considering the claimant's age, education, work experience, and residual funcational capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569 and 404.1569(a)).
11. The claimant was not under a disability, as defined in the Social Security Act, at any time from July 1, 2003, the alleged onset date, through March 31, 2007, the date last insured (20 CFR 404.1520(g)).

(CAR 11-25). After the Appeals Council declined review on March 30, 2012, this appeal followed.


The court reviews the Commissioner's final decision to determine whether it is: (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a whole. See Tackett v. Apfel , 180 F.3d 1094, 1097 (9th Cir. 1999). "Substantial evidence" is more than a mere scintilla, but less than a preponderance. See Saelee v. Chater , 94 F.3d 520, 521 (9th Cir. 1996). It is "such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales , 402 U.S. 389, 402 (1971). The record as a whole, including both the evidence that supports and detracts from the Commissioner's conclusion, must be considered and weighed. See Howard v. Heckler , 782 F.2d 1484, 1487 (9th Cir. 1986); Jones v. Heckler 760 F.2d 993 , 995 (9th Cir. 1985). The court may not affirm the Commissioner's decision simply by isolating a specific quantum of supporting evidence. See Hammock v. Bowen , 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or if there is conflicting evidence supporting a particular finding, the finding of the Commissioner is conclusive. See Sprague v. Bowen , 812 F.2d 1226, 1229-30 (9th Cir. 1987). Therefore, where the evidence is susceptible to more than one rational interpretation, one of which supports the Commissioner's decision, the decision must be affirmed, see Thomas v. Barnhart , 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal standard was applied in weighing the evidence, see Burkhart v. Bowen , 856 F.2d 1335, 1338 (9th Cir. 1988).


Plaintiff argues the ALJ erred in two ways: (1) the ALJ improperly determined her severe impairments at step two; and (2) the ALJ failed to properly credit plaintiff's testimony as well as third party statements.


In order to be entitled to benefits, the plaintiff must have an impairment severe enough to significantly limit the physical or mental ability to do basic work activities. See 20 C.F.R. §§ 404.1520(c), 416.920(c).[3] In determining whether a claimant's alleged impairment is sufficiently severe to limit the ability to work, the Commissioner must consider the combined effect of all impairments on the ability to function, without regard to whether each impairment alone would be sufficiently severe. See Smolen v. Chater , 80 F.3d 1273, 1289-90 (9th Cir. 1996); see also 42 U.S.C. § 423(d)(2)(B); 20 C.F.R. §§ 404.1523 and 416.923. An impairment, or combination of impairments, can only be found to be non-severe if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work. See Social Security Ruling ("SSR") 85-28; see also Yuckert v. Bowen , 841 F.2d 303, 306 (9th Cir. 1988) (adopting SSR 85-28). The plaintiff has the burden of establishing the severity of the impairment by providing medical evidence consisting of signs, symptoms, and laboratory findings. See 20 C.F.R. §§ 404.1508, 416.908. The plaintiff's own statement of symptoms alone is insufficient. See id.

Here, the ALJ found plaintiff's severe impairments consisted of right plantar fasciitis, right tarsal tunnel syndrome, degenerative disc disease of the lumbosacral spine, lumbar strain, mild obesity and depression. He found plaintiff had other impairments, including carpal tunnel and migraine headaches, but that these impairments were non-severe. Specifically, the ALJ found plaintiff's "headaches are not experienced at such a frequency or degree as to limit her ability to perform work-related activities." (CAR 13). The ALJ noted that plaintiff briefly underwent treatment in 2006 and was prescribed migraine medication, but "no source assessed any work-related functional limitations related to this disorder, and no limitations are warranted by the record." (CAR 14). Similarly, the ALJ noted plaintiff's alleged limitations in the use of her hands due to carpal tunnel syndrome. The ALJ found plaintiff underwent treatment in 1998-99 with significant improvement, that plaintiff did not seek any additional treatment for carpal tunnel syndrome after 1999, there were "no objective findings of positive Tinel's or Phalen's related to the Carpal tunnel syndrom during the period at issue[, ]" including during the examinations and assessments by her treating physician, "no source documented significant findings in connection with carpal tunnel syndrom and no one assessed work-related functional limitations, " and plaintiff's daily activities suggest "normal functioning of the upper extremities." (CAR 14).

Plaintiff argues that her treating physician, Dr. Adishian, precluded her from repetitive work in 1999, and the more recent medical records were from her workers' compensation doctors who would not have treated her carpal tunnel issues as that was not her workers' compensation injury. She also argues that she testified to continuing symptoms related to her carpal tunnel syndrom. In addition, she contends that the ALJ acknowledged that she received treatment for her migraine headaches, and that both she and her witnesses testified to the severity of her headaches. Further, she argues the lack of objective medical evidence to support her headaches does not indicate the absence of them. Thus, she contends the ALJ should not have found these ailments non-severe and should have included the combined effect of these impairments in addition to the other impairments the ALJ found severe.

As stated above, the burden is on the plaintiff to establish the severity of her impairment by providing appropriate medical evidence. Her own testimony of symptoms alone is insufficient. Yet, here, plaintiff contends that based on her testimony, the ALJ should have found her carpal tunnel and migraine headaches severe impairments. As the defense points out, and the ALJ stated, there have been no objective findings on examination to support such a finding, and no treating or examining physician has found any limitations with her upper extremities. A diagnosis in 1999 of carpal tunnel, which was successfully treated prior to plaintiff's alleged onset of disability in 2003, is simply insufficient to support a finding that the ALJ erred in determining this as a non-severe impairment. Plaintiff fails to support her contention that she continues to have symptoms with any medical evidence during the relevant time period.

Similarly, plaintiff fails to support her contention that her migraine headaches cause more than minimal limitations without any medical evidence. As the ALJ set forth, the medical records indicate that she sought treatment in 2002 for chronic headaches and migraines, and then again in 2006. However, she was prescribed medication and had no further complaints. In her motion, plaintiff fails to point to anything but her own testimony to support her contention that her migraine headaches are severe, with the exception of 2002 MRI which showed no abnormality and the 2006 treatment note where she was prescribed medication, which the ALJ noted.

The undersigned finds that plaintiff failed to meet her burden in demonstrating that her carpal tunnel syndrome and migraine headaches are sufficiently severe to limit her ability to do basic work activities. The undersigned cannot find the ALJ erred in his determination of the severity of plaintiff's impairments; that determination is supported by the evidence and will not be disturbed.


The Commissioner determines whether a disability applicant is credible, and the court defers to the Commissioner's discretion if the Commissioner used the proper process and provided proper reasons. See Saelee v. Chater , 94 F.3d 520, 522 (9th Cir. 1996). An explicit credibility finding must be supported by specific, cogent reasons. See Rashad v. Sullivan , 903 F.2d 1229, 1231 (9th Cir. 1990). General findings are insufficient. See Lester v. Chater , 81 F.3d 821, 834 (9th Cir. 1995). Rather, the Commissioner must identify what testimony is not credible and what evidence undermines the testimony. See id. Moreover, unless there is affirmative evidence in the record of malingering, the Commissioner's reasons for rejecting testimony as not credible must be "clear and convincing." See id.; see also Carmickle v. Commissioner , 533 F.3d 1155, 1160 (9th Cir. 2008) (citing Lingenfelter v Astrue , 504 F.3d 1028, 1936 (9th Cir. 2007), and Gregor v. Barnhart , 464 F.3d 968, 972 (9th Cir. 2006)).

If there is objective medical evidence of an underlying impairment, the Commissioner may not discredit a claimant's testimony as to the severity of symptoms merely because they are unsupported by objective medical evidence. See Bunnell v. Sullivan , 947 F.2d 341, 347-48 (9th Cir. 1991) (en banc). As the Ninth Circuit explained in Smolen v. Chater :

The claimant need not produce objective medical evidence of the [symptom] itself, or the severity thereof. Nor must the claimant produce objective medical evidence of the causal relationship between the medically determinable impairment and the symptom. By requiring that the medical impairment "could reasonably be expected to produce" pain or another symptom, the Cotton test requires only that the causal relationship be a reasonable inference, not a medically proven phenomenon.

80 F.3d 1273 , 1282 (9th Cir. 1996) (referring to the test established in Cotton v. Bowen , 799 F.2d 1403 (9th Cir. 1986)).

The Commissioner may, however, consider the nature of the symptoms alleged, including aggravating factors, medication, treatment, and functional restrictions. See Bunnell , 947 F.2d at 345-47. In weighing credibility, the Commissioner may also consider: (1) the claimant's reputation for truthfulness, prior inconsistent statements, or other inconsistent testimony; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; (3) the claimant's daily activities; (4) work records; and (5) physician and third-party testimony about the nature, severity, and effect of symptoms. See Smolen , 80 F.3d at 1284 (citations omitted). It is also appropriate to consider whether the claimant cooperated during physical examinations or provided conflicting statements concerning drug and/or alcohol use. See Thomas v. Barnhart , 278 F.3d 947, 958-59 (9th Cir. 2002). If the claimant testifies as to symptoms greater than would normally be produced by a given impairment, the ALJ may disbelieve that testimony provided specific findings are made. See Carmickle , 533 F.3d at 1161 (citing Swenson v. Sullivan , 876 F.2d 683, 687 (9th Cir. 1989)).

Here, the ALJ determined that plaintiff's "subjective pain complaints and her allegations regarding limitations in standing, walking, and lifting are generally credible." (CAR 20). However, he found that plaintiff's

allegations regarding limitations related to carpal tunnel syndrome and migraine headaches are not credible for the reasons noted earlier in the decision. Specifically, the claimant alleged manipulative limitations related to carpal tunnel syndrome, and frequent absences and the need to lie down due to migraines, but these limitations are not supported by the objective evidence, the treatment records, the claimant's generally good functioning, or any opinion evidence of record. Thus, these limitations are rejected.

(CAR 21).

In discussing plaintiff's impairments, the ALJ stated:

In addition to the lack of carpal tunnel syndrome complaints, findings or limitations during the period at issue, the claimant's activities of daily living also suggest that the claimant has normal functioning of the upper extremities. Despite the claimant's allegations of pain with repetitive action of the hands, the record shows that her hobbies and activities included crocheting, painting, frequently working on crafts, and playing board games. These activities often require prolonged or repetitive use of the upper extremities. In addition, the claimant also did many normal household chores, and was limited in this area primarily due to her lower extremity impairments (Exhibits 4E, 6F, 32F). For all of the reasons, the claimant's allegations regarding limitations related to carpal tunnel syndrome are not credible.

(CAR 14).

Plaintiff argues the ALJ erred in his credibility determination because he failed to accurately characterize her statements regarding her activities of daily living as well as her testimony. She claims she consistently reported that her hands hurt when doing those activities, and she was more limited in what she could do. In addition, she argues the record supports her allegations regarding her migraine headaches including her need to lie down and miss work. Plaintiff contends the ALJ failed to provide legitimate reasons for discounting her testimony, much less clear and convincing reasons for doing so.

Contrary to plaintiff's argument, the ALJ set forth several clear and convincing reasons for discrediting her testimony. The ALJ specifically found not only a lack of objective medical evidence supported her claims, but also found her daily activities inconsistent with her allegations of limitations. He appropriately considered plaintiff's alleged symptoms, the treatment she sought and received, as well as her daily activities. His findings are supported by the record. For example, plaintiff reported in 2007 that while it took her a bit longer, she was able to cook, clean the house, take care of her personal needs, and do her crafts. (CAR 204-11). In addition, plaintiff testified that she did not generally seek medical treatment for her migraine headaches, but used over the counter medication. (CAR 45).

The court finds the reasons the ALJ set forth for discrediting plaintiff's testimony as to her carpal tunnel syndrome and migraine headaches are clear and convincing, and are supported the record as a whole. Giving the ALJ's opinion the proper deference it is entitled, the undersigned cannot find the determination was erroneous. See Fair, 885 F.2d at 604.


Similarly, plaintiff contends the ALJ improperly discredited the statements of her husband and friend regarding her limitations. "[L]ay witness testimony as to a claimant's symptoms or how an impairment affects ability to work is competent evidence, and therefore cannot be disregarded without comment." Nguyen v. Chater , 100 F.3d 1462, 1467 (9th Cir. 1996); see also Dodrill v. Shalala , 12 F.3d 915, 918-19 (9th Cir. 1993) (friends and family members in a position to observe a plaintiff's symptoms and daily activities are competent to testify to condition). "If the ALJ wishes to discount the testimony of the lay witnesses, he must give reasons that are germane to each witness." Dodrill , 12 F.3d at 919; see also Stout v. Commissioner SSA , 454 F.3d 1050, 1056 ((9th Cir. 2006) (where ALJ fails to properly discuss competent lay testimony favorable to plaintiff, court cannot consider error to be harmless unless it can confidently conclude no reasonable ALJ, when fully crediting testimony, could have reached different disability determination).

The ALJ, however, need not discuss all evidence presented. See Vincent on Behalf of Vincent v. Heckler , 739 F.2d 1393, 1394-95 (9th Cir. 1984). Rather, he must explain why "significant probative evidence has been rejected." Id . (citing Cotter v. Harris , 642 F.2d 700, 706 (3d Cir.1981). Applying this standard, the court held that the ALJ properly ignored evidence which was neither significant nor probative. See id. at 1395. As to a letter from a treating psychiatrist, the court reasoned that, because the ALJ must explain why he rejected uncontroverted medical evidence, the ALJ did not err in ignoring the doctor's letter which was controverted by other medical evidence considered in the decision. See id. As to lay witness testimony concerning the plaintiff's mental functioning as a result of a second stroke, the court concluded that the evidence was properly ignored because it "conflicted with the available medical evidence" assessing the plaintiff's mental capacity. Id.

In Stout v. Commissioner , the Ninth Circuit recently considered an ALJ's silent disregard of lay witness testimony. See 454 F.3d 1050 , 1053-54 (9th Cir. 2006). The lay witness had testified about the plaintiff's "inability to deal with the demands of work" due to alleged back pain and mental impairments. Id . The witnesses, who were former co-workers testified about the plaintiff's frustration with simple tasks and uncommon need for supervision. See id. Noting that the lay witness testimony in question was "consistent with medical evidence, " the court in Stout concluded that the "ALJ was required to consider and comment upon the uncontradicted lay testimony, as it concerned how Stout's impairments impact his ability to work." Id. at 1053. The Commissioner conceded that the ALJ's silent disregard of the lay testimony contravened Ninth Circuit case law and the controlling regulations, and the Ninth Circuit rejected the Commissioner's request that the error be disregarded as harmless. See id. at 1054-55. The court concluded:

Because the ALJ failed to provide any reasons for rejecting competent lay testimony, and because we conclude that error was not harmless, substantial evidence does not support the Commissioner's decision...

Id. at 1056-67.

From this case law, the court concludes that the rule for lay witness testimony depends on whether the testimony in question is controverted or consistent with the medical evidence. If it is controverted, then the ALJ does not err by ignoring it. See Vincent , 739 F.2d at 1395. If lay witness testimony is consistent with the medical evidence, then the ALJ must consider and comment upon it. See Stout , 454 F.3d at 1053.

Here, plaintiff contends her husband's statements regarding her manipulative limitations and her friend's statements regarding her migraine headaches support her contention that these are severe limitations and the ALJ erred in rejecting the statements without germane reasons. Plaintiff's husband noted in his statement that she has to rest her foot and hands during cleaning, her feet and hands fall asleep at night, she could not write or type, and she must rest at crafts. (CAR 196-203). Plaintiff's friend stated that plaintiff suffers migraine headaches which stop her from doing anything, and put her to bed for days at a time. (CAR 231).

In regards to the lay witness statements, the ALJ found that:

the third party statements from the claimant's husband and the claimant's friend, Marian Glenn, are also generally credible and consistent with the finding that the claimant is limited to no more than sedentary work. Thus, these assessments are given significant weight. The statement by the clamant's sister, Paula Klem, is also generally credible except that she indicated that the claimant could not sit for prolonged periods. This limitation was not alleged by the claimant and not supported by any objective evidence or opinion evidence of record. Thus, the allegation is not credible. It is noted that Ms. Klem provided her statement in June 2009, well after the date last insured, and thus, may have been referring to the claimant's current functioning rather than her functioning during the period at issue. (CAR 21).

By this statement, the ALJ basically found the statements by the witnesses credible to the extent they are supported by the medical evidence, and silently rejected those statements which were controverted by the medical evidence. As discussed above, the medical evidence in the record controverts her contention that her carpal tunnel syndrome and migraine headaches are severe impairments. As such, the statements by these lay witnesses are similarly contradicted by the medical evidence, and the ALJ's failure to specially address those statements is not reversible error. See Vincent , 739 F.2d at 1395.


Based on the foregoing, the court concludes that the Commissioner's final decision is based on substantial evidence and proper legal analysis. Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for summary judgment (Doc. 17) is denied;

2. Defendant's cross-motion for summary judgment (Doc. 20) is granted; and

3. The Clerk of the Court is directed to enter judgment and close this file.

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