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Majeed v. Colvin

United States District Court, S.D. California

June 21, 2017

Asa Euregetes Majeed, Plaintiff,
v.
Carolyn W. Colvin, Defendant.

          REPORT AND RECOMMENDATION [ECF NOS. 14, 15]

          HON. JILL L. BURKHARDT UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on cross-motions for summary judgment. (ECF Nos. 14, 15.) Plaintiff Asa Euregetes Majeed moves under 42 U.S.C. § 405(g)[1] for judicial review of the Commissioner of Social Security Carolyn Colvin's (“Commissioner”) final decision denying his claim for a period of disability and disability insurance benefits.

         This Report and Recommendation is submitted to United States District Judge William Q. Hayes pursuant to 28 U.S.C. § 636(b) and Civil Local Rule 72.1(c) of the United States District Court for the Southern District of California. After careful review of the moving and opposing papers, the administrative record, the facts, and the applicable law, the Court hereby RECOMMENDS that Plaintiff's motion for summary judgment (ECF No. 14) be DENIED. The Court further RECOMMENDS that the Commissioner's cross-motion for summary judgment affirming the Administrative Law Judge's (“ALJ”) decision (ECF No. 15) be GRANTED.

         I. BACKGROUND

         Plaintiff filed an application for a period of disability and disability insurance benefits on October 26, 2012, alleging disability commencing June 1, 2012.[2] (ECF No. 10-5 at 2.) The Commissioner denied the claims by initial determination on February 12, 2013. (ECF No. 10-2 at 26.) Plaintiff requested reconsideration of the initial determination on April 8, 2013. (ECF No. 10-4 at 9.) The Commissioner denied reconsideration on September 9, 2013. (Id. at 10-15; ECF No. 10-2 at 2.) Plaintiff requested a de novo hearing before an ALJ on October 27, 2013. (ECF No. 10-4 at 16-17.) The Commissioner granted this request and appointed an ALJ. (Id. at 18-29.) On October 9, 2014, Plaintiff, his attorney, and a vocational expert appeared before the ALJ, Keith Dietterle. (ECF No. 10-2 at 26.) In a decision dated December 16, 2014, the ALJ issued an unfavorable decision and found Plaintiff was not disabled through June 30, 2014, the last date insured. (Id. at 35.)

         Thereafter, the Social Security Administration Appeals Council denied Plaintiff's request for review of the ALJ's unfavorable decision, making the ALJ's decision the final decision of the Commissioner. (Id. at 2.) Plaintiff then commenced this instant action for judicial review pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

         II. STANDARD OF REVIEW

         The Social Security Act allows for unsuccessful applicants to seek judicial review of the Commissioner's final agency decision.[3] The scope of judicial review, however, is limited. The Commissioner's final decision should not be disturbed unless: (1) the ALJ's findings are based on legal error; or (2) the ALJ's determinations are not supported by substantial evidence in the record as a whole.[4] Substantial evidence is “more than a mere scintilla, but may be less than a preponderance.”[5] Substantial evidence is “relevant evidence that, considering the entire record, a reasonable person might accept as adequate to support a conclusion.”[6]

         In making this determination, the Court must consider the record as a whole, weighing both the evidence that supports and the evidence that detracts from the ALJ's conclusion.[7] Where the evidence can reasonably be construed to support more than one rational interpretation, the Court must uphold the ALJ's decision.[8] This includes deferring to the ALJ's credibility determinations and resolutions of evidentiary conflicts.[9]

         III. THE ALJ'S DECISION

         Utilizing the five-step disability evaluation process, [10] the ALJ first found that Plaintiff had not engaged in substantial gainful activity since the alleged disability onset date of June 1, 2012 through the date he was last insured of June 30, 2014. (ECF No. 10-2 at 28.) The ALJ then found that during this relevant time period, June 1, 2012 through June 30, 2014, Plaintiff had the following severe impairments: malignant neoplasm of the bladder; obesity; degenerative joint disease of the left knee; and osteoarthritic disease of the left hip.[11] (Id.) In making this determination, the ALJ explained that Plaintiff also had the following conditions that do not meet the criteria for severe impairments: heel spurs; mild degenerative changes of the left elbow; and renal stones. (Id.)

         Next, the ALJ found that Plaintiff does not have an impairment or a combination of impairments that meet the severity required to stop analysis at step three and award benefits. (Id. at 28-29.) Before considering step four, the ALJ found that Plaintiff has the residual functional capacity (“RFC”) to perform medium work:

with the following specific limitations he can sit for 6 hours in an 8-hour day; can stand and walk for 6 hours in an 8-hour day; can occasionally lift and carry 50 pounds and frequently lift and carry 25 pounds; can occasionally climb stairs, balance, stoop, kneel, crouch, and crawl; cannot climb ladders, ropes, and scaffolds; and cannot work at unprotected heights or around dangerous or fast moving machinery.

(Id. at 29.) In arriving at this RFC, the ALJ explained that he “considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence” as well as opinion evidence. (Id.)

         At step four, the ALJ compared the RFC assessed to the demands of Plaintiff's past relevant work as a telephone solicitor and customer service representative. (ECF No. 10-2 at 33-34.) In doing so, the ALJ relied on the testimony of the vocational expert to determine that Plaintiff could work as a telephone solicitor or customer service representative. (Id. at 34.) The ALJ therefore concluded at step four that Plaintiff “was not under a disability, as defined by the Social Security Act, at any time from June 1, 2012, the alleged onset date, through June 30, 2014, the date last insured.” (Id.)

         IV. DISCUSSION

         Plaintiff challenges the ALJ's finding that Plaintiff's statements concerning the intensity, persistence and limiting effects of his symptoms are not entirely credible. (ECF No. 14 at 4-14.) More specifically, Plaintiff argues that this credibility finding cannot stand for the following three reasons: (1) the ALJ's analysis in support of this finding merely recited the relevant “boilerplate” Social Security Act regulation on subjective complaints of pain or other symptoms (id. at 6-7); (2) the ALJ's sole basis for discrediting Plaintiff's testimony about the severity of his symptoms was that it lacks support in the objective medical evidence (id. at 7-9); and (3) the ALJ erroneously believed that Plaintiff only had care that was conservative in nature (id. at 9-10). Based on these arguments, Plaintiff moves for summary judgment on the ground that the ALJ failed to meet the clear and convincing legal standard for discrediting Plaintiff's testimony about the severity his subjective symptoms. (ECF No. 14.)

         The Commissioner opposes Plaintiff's motion and cross-moves for summary judgment, arguing the ALJ properly assessed Plaintiff's credibility. (ECF Nos. 15, 16.) For the reasons explained below, the Court concludes that the ALJ articulated clear and convincing reasons to discredit Plaintiff's statements concerning the intensity, persistence and limiting effects of his symptoms.

         A. Legal Standard

         If an ALJ finds that a claimant's testimony as to the severity of his pain and impairments is unreliable, the ALJ is required to make “a credibility determination with findings sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit claimant's testimony.”[12] As outlined by the Ninth Circuit, there is a two-step process an ALJ is to employ to assess subjective pain testimony.[13] “First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment ‘which could reasonably be expected to produce the pain or other symptoms alleged.'”[14] Absent such evidence, subjective pain testimony may be disregarded.[15]Second, if the ALJ determines that the claimant meets this threshold, “and there is no evidence of malingering, ‘the ALJ can reject the claimant's testimony about the severity of [his] symptoms only by offering specific, clear and convincing reasons for doing so.'”[16]

         At issue here is the second step in the ALJ's two-step process of assessing subjective pain testimony. The Commissioner does not argue that there was evidence of malingering and that a lesser standard should consequently apply. As a result, the Court will apply the “specific, clear and convincing” standard to the ALJ's adverse credibility determination.[17]

         To support a finding that the claimant was not credible, the ALJ must “point to specific facts in the record which demonstrate that [the claimant] is in less pain than [he] claims.”[18] The ALJ must make specific findings “stat[ing] which pain testimony is not credible and what evidence suggests the complaints are not credible.”[19] The ALJ can consider the following when assessing the claimant's credibility: (1) his reputation for truthfulness; (2) inconsistences in either his testimony or between his testimony and his conduct; (3) his daily activities; (4) his work record; and (5) testimony from physicians and third parties concerning the nature, severity, and effect of his condition.[20]

         The reviewing court must bear in mind that it should not “second-guess” an ALJ's credibility determination.[21] Accordingly, where an ALJ's credibility determination is supported by substantial evidence, it will not be disturbed even where some of the reasons for discrediting the claimant's testimony are improper.[22] However, “[t]he clear and convincing standard is the most demanding required in Social Security cases, ”[23] and thus, the standard “is not an easy requirement to meet.”[24]

         Courts may only review the ALJ's articulated rationale, and “[i]f the [ALJ's] decision on its face does not adequately explain how a conclusion was reached, that alone is grounds for remand.”[25] The Ninth Circuit has sympathized with the “large volume of disability cases that the agency must adjudicate, ” but “each case represents a citizen's claim of serious disability, ” and accordingly, courts should not take lightly their responsibility under 42 U.S.C. § 405(g).[26] Courts, in their reviewing authority, “should not be forced to speculate” the reasoning behind the ALJ's findings.[27]

         Consequently, the Court must assess whether the ALJ provided clear and convincing reasons for discrediting Plaintiff's testimony concerning his subjective pain that are supported by substantial evidence in the record.

         B. “Boilerplate” Social ...


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