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Zambrano v. Berryhill

United States District Court, C.D. California

March 9, 2017

KIM M. ZAMBRANO Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          KAREN L. STEVENSON UNITED STATES MAGISTRATE JUDGE.

         INTRODUCTION

         Kim M. Zambrano (“Plaintiff”) filed a Complaint on March 30, 2016, seeking review of the denial of her applications for a period of disability, disability insurance (“DI”), and supplemental security income (“SSI”). On April 28, 2016, the parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned United States Magistrate Judge. (Dkt. Nos. 8-10.) On February 2, 2017, the parties filed a Joint Stipulation (“Joint Stip.”). (Dkt. No 20.) Plaintiff seeks an order reversing the Commissioner's decision and ordering the payment of benefits or, in the alternative, remanding for further proceedings. (Joint Stip. at 14.) The Commissioner requests that the ALJ's decision be affirmed or, in the alternative, remanded for further proceedings. (See Id. at 15-16.) The Court has taken the matter under submission without oral argument.

         SUMMARY OF ADMINISTRATIVE PROCEEDINGS

         On July 5, 2012, Plaintiff, who was born on December 2, 1962, filed applications for a period of disability, DI, and SSI.[2] (See Administrative Record (“AR”) 220, 229.) Plaintiff alleged disability commencing May 1, 2012 due to diabetes, anxiety, depression, chronic fibromyalgia, and insomnia. (AR 252.) Plaintiff previously worked as a child monitor (DOT 301.677-010) and home attendant (DOT 354.377-014). (Id. 47; see also Id. 253.) After the Commissioner denied Plaintiff's applications initially (AR 87-88) and on reconsideration (id. 111-12), Plaintiff requested a hearing (see Id. 131-32). Administrative Law Judge Alan Markiewicz (“ALJ”) held a hearing on January 9, 2014 (id. 54-86). Plaintiff, who was represented by counsel, testified before the ALJ as did vocational expert (“VE”) Sandra Fioretti. (See AR 54-86.) On January 31, 2014, the ALJ issued an unfavorable decision, denying Plaintiff's applications for DI and SSI. (Id. 36-49.) On July 1, 2015, the Appeals Council denied Plaintiff's request for review. (Id. 14-16.)

         SUMMARY OF ADMINISTRATIVE DECISION

         The ALJ found that Plaintiff had not engaged in substantial gainful activity since her May 1, 2012 alleged onset date. (AR 38.) The ALJ further found that Plaintiff had the following severe impairments: fibromyalgia; disc disease of the cervical spine; diabetes; depressive disorder, not otherwise specified; and anxiety. (Id.) The ALJ also noted that Plaintiff had a history of obesity. (Id. at 38-39.) The ALJ concluded that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of any impairments listed in 20 C.F.R. part 404, subpart P, appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926), and he explained his rationale for finding that Plaintiff's impairments did not meet or equal Listings 12.04 and 12.06. (Id. 39-40.) The ALJ determined that Plaintiff had the residual functional capacity (“RFC”) to perform medium work with the following limitations:

[Plaintiff] can lift and/or carry 50 pounds occasionally and 25 pounds frequently; she can stand and/or walk for six hours out of an eight-hour workday; she can sit for six hours out of an eight-hour workday; she cannot climb ladders, ropes, or scaffolds; she can frequently climb ramps and stairs; she is limited to simple repetitive tasks; and she is limited to no more than occasional contact with coworkers and no contact with the general public.

(AR 40-41.)

         The ALJ found that Plaintiff was unable to perform her past relevant work as a child monitor and home attendant. (AT 47.) However, the ALJ determined that Plaintiff was capable of performing jobs that exist in significant numbers in the national economy, including the representative occupations of kitchen helper (DOT 318.687-010), hand packager (DOT 920.587-018), and industrial cleaner (DOT 381.687-018). (Id. 48-49.) Accordingly, the ALJ determined that Plaintiff had not been under a disability, as defined in the Social Security Act, from the alleged onset date through the date of the ALJ's decision. (Id. at 49.)

         STANDARD OF REVIEW

         Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether it is free from legal error and supported by substantial evidence in the record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “Substantial evidence is ‘more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Gutierrez v. Comm'r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 2014) (internal citations omitted). “Even when the evidence is susceptible to more than one rational interpretation, we must uphold the ALJ's findings if they are supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012).

         Although this Court cannot substitute its discretion for the Commissioner's, the Court nonetheless must review the record as a whole, “weighing both the evidence that supports and the evidence that detracts from the [Commissioner's] conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (internal quotation marks and citation omitted); Desrosiers v. Sec'y of Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988). “The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).

         The Court will uphold the Commissioner's decision when the evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the Court may review only the reasons stated by the ALJ in his decision “and may not affirm the ALJ on a ground upon which he did not rely.” Orn, 495 F.3d at 630; see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). The Court will not reverse the Commissioner's decision if it is based on harmless error, which exists if the error is “‘inconsequential to the ultimate nondisability determination, ' or if despite the legal error, ‘the agency's path may reasonably be discerned.'” Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal citations omitted).

         DISCUSSION

         Plaintiff alleges that the ALJ failed to properly evaluate the credibility of Plaintiff's subjective complaints and the credibility of the lay witness, Kimberly Victor, Plaintiff's daughter. (Joint Stip. at 3.)

         I. Plaintiff's Credibility

         A. Plaintiff's Subjective Complaints

         The first issue in dispute is whether the ALJ properly evaluated the credibility of Plaintiff's statements about her symptoms and limitations. (Joint Stip. at 3.) In her Adult Function Report, dated September 10, 2012, Plaintiff stated that she cannot concentrate and experiences mood swings. (AR 259.) She finds it difficult to manage the pain from her fibromyalgia and experiences dizziness when she moves her head up or down. (AR 259.) She can walk half a block before needing to rest for a period of five minutes. (AR 264.)

         Plaintiff finds cleaning and cooking to be painful and exhausting. (AR 260.) Plaintiff is responsible for caring for her husband and children by cooking, cleaning, and doing laundry, however her daughter has been helping her run errands, take care of the kids, and cook because Plaintiff is too exhausted. (AR 260-61.) Plaintiff stated that her daughter has been preparing all of the meals “lately.” (AR 261.) When Plaintiff is able to cook, it takes her about 40 minutes to prepare a meal. (AR 261.) Plaintiff also indicated that she is able to wash and fold laundry but unable to carry a full laundry basket. (See AR 261.) Plaintiff stated that it takes her three hours to wash and fold the laundry. (AR 261.)

         Plaintiff's daughter sometimes helps Plaintiff get dressed when she is unable to do it herself. (AR 260.) Plaintiff stated that she “can't stand the pain to change clothes, ” “can't always wash [her] hair, ” her arms hurt when she washes her body, it is painful to brush her hair, and she gets dizzy when she bends down to shave her legs. (AR 260.)

         Plaintiff indicated that she is able to drive a car and shops three times a week for a period of 30 minutes to two hours. (AR 262.) Plaintiff stated that she tries to engage in the following activities “every day [or] as much as [she] can:” going outside; sitting and talking; attending barbeques; watching TV; and visiting. (AR 263.) She stated that she goes shopping, to the doctor's office, and to friends' houses “on a regular basis, ” ...


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