United States District Court, C.D. California
KIM M. ZAMBRANO Plaintiff,
NANCY A. BERRYHILL,  Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
L. STEVENSON UNITED STATES MAGISTRATE JUDGE.
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.
OF ADMINISTRATIVE PROCEEDINGS
5, 2012, Plaintiff, who was born on December 2, 1962, filed
applications for a period of disability, DI, and
(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.
OF ADMINISTRATIVE DECISION
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
[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.
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.)
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).
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).
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).
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.)
Plaintiff's Subjective Complaints
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.)
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.
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.)
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, ” ...