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Ferguson v. Berryhill

United States District Court, C.D. California, Eastern Division

July 7, 2017

TERRI LYNN FERGUSON, Plaintiff,
v.
NANCY A. BERRYHILL,[1] Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          JOHN D. EARLY United States Magistrate Judge.

         Plaintiff Terri Lynn Ferguson (“Plaintiff”) filed a Complaint on October 15, 2016, seeking review of the Commissioner's denial of her applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). On February 28, 2017 and May 12, 2017, the parties consented to proceed before the undersigned Magistrate Judge. In accordance with the Court's Case Management Order, Plaintiff filed a Motion for Summary Judgment (“Motion”) on March 1, 2017, and Defendant filed a Cross-Motion for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment (“Cross-Motion”) on May 22, 2017. The Court has taken the Motion and Cross-Motion under submission without oral argument and as such, this matter now is ready for decision.

         I. BACKGROUND

         On July 12, 2013, Plaintiff applied for DIB and SSI, alleging disability beginning August 14, 2012. (Administrative Record [“AR”] 161-70.) After her application was denied initially (AR 102-06), and on reconsideration (AR 110-16), Plaintiff requested an administrative hearing, which was held on March 25, 2015. (AR 35-61, 117.) Plaintiff, represented by counsel, appeared and testified at the hearing before an Administrative Law Judge (“ALJ”). (AR 35-61.) David Rinehart, a vocational expert (“VE”), also testified.

         On May 13, 2015, the ALJ issued a written decision finding Plaintiff was not disabled. (AR 23-31.) The ALJ found that Plaintiff had not engaged in substantial gainful activity since August 14, 2012. (AR 25.) The ALJ determined that Plaintiff suffered from the following severe impairments: lumbar spondylosis and degenerative disc disease; lumbosacral radiculitis; degenerative bone disease; and cervical spondylosis. (Id.) The ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled a listed impairment. (AR 27.) The ALJ also found that Plaintiff had the residual functional capacity (“RFC”) to perform light work, with the following limitations. Plaintiff could: (1) lift and carry 20 pounds occasionally and 10 pounds frequently; (2) stand and walk for six hours out of an eight-hour workday; (3) sit for six hours out of an eight-hour workday; (4) occasionally climb stairs and ramps, balance, stoop, kneel, crouch, and crawl, but never climb ladders, ropes, or scaffolds; and (5) not be exposed to concentrated vibrations and hazardous work environments, such as dangerous machinery or unprotected heights. (Id.) The ALJ further found that Plaintiff's RFC did not preclude her from performing her past relevant work as an assistant manager, storage facility, as actually and generally performed, and as a cleaner, commercial/institutional, as actually performed. (AR 29-30.) Accordingly, the ALJ concluded that Plaintiff was not under a “disability, ” as defined in the Social Security Act. (AR 30.)

         Plaintiff filed a request with the Appeals Council for review of the ALJ's decision. (AR 17-19.) On August 19, 2016, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the Commissioner's final decision. (AR 1-4.) This action followed.

         II. STANDARD OF REVIEW

         Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The ALJ's findings and decision should be upheld if they are free from legal error and supported by substantial evidence based on the record as a whole. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (as amended); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such relevant evidence as a reasonable person might accept as adequate to support a conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla, but less than a preponderance. Id. To determine whether substantial evidence supports a finding, the reviewing court “must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). “If the evidence can reasonably support either affirming or reversing, ” the reviewing court “may not substitute its judgment” for that of the Commissioner. Id. at 720-21; see also Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (“Even when the evidence is susceptible to more than one rational interpretation, [the court] must uphold the ALJ's findings if they are supported by inferences reasonably drawn from the record.”). However, a 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 v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).

         Lastly, even when the ALJ commits legal error, the Court upholds the decision where that error is harmless. Molina, 674 F.3d at 1115. An error is harmless if it is “inconsequential to the ultimate nondisability determination, ” or if “the agency's path may reasonably be discerned, even if the agency explains its decision with less than ideal clarity.” Brown-Hunter, 806 F.3d at 492 (citation omitted).

         III. DISCUSSION

         Plaintiff contends that the ALJ: (1) failed to articulate specific and legitimate reasons for rejecting Plaintiff's credibility and (2) erred in concluding that Plaintiff could perform her past relevant work. As set forth below, the Court affirms the Commissioner's decision.

         A. The ALJ properly assessed Plaintiff's credibility.

         Where a disability claimant produces objective medical evidence of an underlying impairment that could reasonably be expected to produce the pain or other symptoms alleged, and there is no evidence of malingering, the ALJ must provide “‘specific, clear and convincing reasons for' rejecting the claimant's testimony regarding the severity of the claimant's symptoms.” Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (citation omitted); Lingenfelter, 504 F.3d at 1036; Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); see also 20 C.F.R. §§ 404.1529(a), 416.929(a). “In reaching a credibility determination, an ALJ may weigh inconsistencies between the claimant's testimony and his or her conduct, daily activities, and work record, among other factors.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009). The ALJ's credibility findings “must be sufficiently specific to allow a reviewing court to conclude that the [ALJ] rejected [the] claimant's testimony on permissible grounds and did not arbitrarily discredit the claimant's testimony.” Moisa, 367 F.3d at 885 (citation omitted). However, if the ALJ's assessment of the claimant's testimony is reasonable and is supported by substantial evidence, it is not the court's role to “second-guess” it. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).

         During the administrative hearing, Plaintiff testified that she worked as a storage facility manager until approximately August 2012, when she was let go because she could no longer do the work. (AR 40-41.) She explained that she could no longer work because she had severe pain throughout her whole body and was taking “a lot of medication.” (AR 41.) She stated that she took medication for her symptoms, “but none of them seem[] to work, ” although she indicated that the Ambien helped. (AR 42, 45, 47.) She also used massagers, TENS, or transcutaneous electrical nerve stimulation, units, a back brace, heating pads, and a cane. (AR 40, 42, 44-45.) She reported that she drives once a month; tries to keep up with house cleaning, but it is difficult; does not do any grocery shopping; uses the microwave for cooking; and does her own laundry. (AR 39.) She also indicated that it takes her three hours to shower and get dressed because of the pain. (AR 56.) Plaintiff indicated that she could sit or stand for 10-15 minutes before it would become painful and she would need to adjust. (AR 40.) She also explained that sitting and driving are difficult because her legs went numb. (AR 50, 54.) She explained that she could walk as far as her residence to the car and had ...


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