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Katie G. v. Berryhill

United States District Court, S.D. California

July 3, 2019

KATIE G., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Hon. Jill L. Burkhardt United States Magistrate Judge.

         This Report and Recommendation is submitted to the Honorable Janis L. Sammartino, United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1(c) of the United States District Court for the Southern District of California.

         On April 25, 2018, Plaintiff Katie G. (“Plaintiff”) filed a Complaint pursuant to 42 U.S.C. § 405(g) seeking judicial review of a decision by the Commissioner of Social Security denying her applications for a period of disability and disability insurance benefits and for Supplemental Security Income benefits (“SSI”). (ECF No. 1.)

         Now pending before the Court and ready for decision is the parties' Joint Motion for Judicial Review of Final Decision of the Commissioner of Social Security. (ECF No. 13.) For the reasons set forth herein, the Court RECOMMENDS that Judgment be entered REVERSING the decision of the Commissioner denying benefits and REMANDING the matter to the Commissioner for further administrative action consistent with this decision.


         On June 30, 2014, Plaintiff filed applications for a period of disability and disability insurance benefits and SSI under Titles II and XVI, respectively, of the Social Security Act, alleging disability since August 13, 2013. (Certified Administrative Record [“AR”] 268-74, 275-80.) After her applications were denied initially and upon reconsideration (AR 170-74, 180-86), Plaintiff requested an administrative hearing before an administrative law judge (“ALJ”) (AR 178-79). An administrative hearing was held on July 7, 2016 and a supplemental hearing was held on November 9, 2016. (AR 28-55, 56-92.) Plaintiff appeared at the initial hearing with counsel, and testimony was taken from her and a vocational expert (“VE”). (AR 56-92.) Plaintiff also appeared at the supplemental hearing with the same counsel and testimony was taken from her, a different VE, and a medical expert. (AR 28-55.)

         As reflected in his March 1, 2017 hearing decision, the ALJ found that Plaintiff had not been under a disability, as defined in the Social Security Act, from her alleged onset date through the date of the decision. (AR 6-27.) The ALJ's decision became the final decision of the Commissioner on February 26, 2018, when the Appeals Council denied Plaintiff's request for review. (AR 1-5.) This timely civil action followed.


         In rendering his decision, the ALJ followed the Commissioner's five-step sequential evaluation process. See 20 C.F.R. §§ 404.1520, 416.920. At Step One, the ALJ found that Plaintiff had not engaged in substantial gainful activity since August 13, 2013, her alleged onset date. (AR 11.)

         At Step Two, the ALJ found that Plaintiff had the following severe impairments: cervical and lumbar degenerative disc disease (DDD) and related conditions, and osteoarthritis of the knee and hip. (AR 11.)

         At Step Three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the impairments listed in the Commissioner's Listing of Impairments. (AR 13.)

         Next, the ALJ determined that Plaintiff had the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b). (AR 13.) Specifically, the ALJ determined:

[C]laimant could lift and/or carry ten pounds frequently, twenty pounds occasionally; 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 can occasionally climb ramps and stairs, balance, stoop, kneel, crouch and crawl; she is not to climb ladders, ropes or scaffolds; and she is to avoid all exposure to hazards such as unprotected heights and moving machinery.

(AR 13.)

         At Step Four, the ALJ determined that Plaintiff was capable of performing past relevant work as an information clerk, customer services representative, and sales attendant. (AR 18-19.) Based on the VE's testimony, the ALJ determined that Plaintiff remained capable of performing this past relevant work “as actually performed.” (AR 18-19.)

         Alternatively, the ALJ made a determination at Step Five. Based on the VE's testimony that a hypothetical person with Plaintiff's vocational profile and RFC could perform the requirements of representative occupations such as a survey worker that existed in significant numbers in the national economy, the ALJ found that Plaintiff was not disabled. (AR 19-20.)


         As reflected in the Joint Motion for Judicial Review of Final Decision of the Commissioner of Social Security, the disputed issues that Plaintiff is raising as the grounds for reversal are:

1. Whether the ALJ provided legally sufficient reasons to reject Plaintiff's testimony about her pain and symptoms.
2. Whether the ALJ's decision to reject the opinions of Dr. Avery and Dr. Paniccia was justified by specific and legitimate reasons supported by substantial evidence.

(ECF No. 13 at 12.)


         Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether the Commissioner's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means “more than a mere scintilla” but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401 (1971); Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 401. This Court must review the record as a whole and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, the Commissioner's decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).

         V. DISCUSSION

         A. The ALJ's Adverse Credibility Determination

         In her motion, Plaintiff contends that the ALJ failed to make a proper adverse credibility determination with respect to Plaintiff's subjective symptom testimony. (ECF No. 13 at 12-24.)

         1. Plaintiff's Testimony

         a. Disability Reports (July, October, and December 2014)

         In a Disability Report dated July 2, 2014, Plaintiff states that she is unable to work due to chronic neck pain, carpal tunnel syndrome, back pain, major depression, and arthritis in her neck, back, and knees. (AR 325-34.) She also states the following:

Can't take meds-She has colitis-Stomach can't handle meds because of old ulcers in her - Low thyroid Has chronic neck pain which causes numbness down her arms right hand surgery for carpel tunnel 1/2011 broke leg put 11 screws and plate in leg due to her right leg injuries she has compensated and now has injuries on her left leg uses a cane to walk sometimes has to use crutches doing physical therapy unable to bend over ruptured discs sitting 10-15 min then legs going numb walk - 2 blocks standing - 15 min causes back and legs to be in pain comfortable position is laying down - has to lay down at least 5-6 times a day has mood swings and very irritable due to pain and depression[.]

(AR 334; see also AR 340, 357.)

         In a Disability Report dated October 3, 2014, Plaintiff provides the following upDated:

[Plaintiff is] unable to sleep from stress and pain all night long, always worried and depressed about money, has pain using the phone holding the phone or using a headset causes pain in shoulders and neck pain will be a 2 out of 10 from using the phone or tilting her head, shoulder pains, arm pains, stomach hurts f[ro]m colitis and IBS are both extreme from stress, muscle pain in arms and legs, wrists and hands both have pain, hips are both painful and sore since injury on right shin has been hurting due to having to put most of her weight on that side, sometimes she feels it's going to break, feet hurt and swell with walking, standing and even sitting, burning pains and numbness in legs and feet, she cannot pay attention like she used to her mind wonders, she is also uptight stressed and depressed all the time, hypothyroidism causes her to feel tired all the time. Spondylosis sciatica pinched nerves on her back cause a lot of pain, walks slow because of pain.

(AR 361.)

         Plaintiff also reports the following changes to her daily activities:

[Plaintiff] now has problems with right leg now because of compensation of the left leg, she has a pinched nerve in her neck from the before, she has carpal tunnel on her hands, she still has numbness and tingling, she has difficulty sleeping, she can't lift heavy items, before she was able to lift 2-3 lbs and now she can't even do that, even if she gains a little bit of weight her legs start feeling the stress, she can't sit for too long, she has numbness going down the legs if she sits too long, she can't squat, and her back gets really bad, to get in the shower she has difficulty, hips cause a lot of pain, can't cook because she can't stand long enough. When her stress is bad, her colitis acts up. Sometimes she feels dizzy and has to sit down. When pain gets really sharp she can't do anything, she is afraid that it will break. She has a shower chair to help out. Headaches from stress or neck discs from neck injury since 1993, stress could cause the pain from grinding teeth pain runs a 6 out of 10.

(AR 361.)

         In a Disability Report dated December 18, 2014, Plaintiff provides the following upDated:

Client has back and neck pain, her carpal tunnel affects her ability to grasp items, she is unable to opens jars. She cannot lift or even fold clothes. This is another reason why she cannot even use the computer. Has tingling and numbness that stem from her shoulder that radiate down to her finger tips. Due to neck pain she is unable to lean forward or look down. Feels more stressed and depressed due to her current situation. Feels hopeless especially with combination of pain that she feels.

(AR 366.)

         In addition, Plaintiff adds the following upDated:

Due to her condition she experiences numbness and pain in her lumbar area that radiate from her lower back to bilateral legs. She cannot sit for more than 10-15 min, otherwise her legs start going numb. She is unable to walk uphill, she can walk for about 5 minutes before she is in extreme pain. Her muscle tense and the pain that radiates down her legs are intolerable. Pain in hip area only allows her to stand for no more than 10 minutes. Very moody and emotional due to her current situation. She is depressed and is short tempered. Feels like [illegible] up and wants to just give up. She cries from the pain that she feels physically and emotionally. [Illegible] time sleeping at night, pain in her legs, lumbar, cervical area, as well as, the stress and anxiety from these conditions prevent her from getting sleep.

(AR 366-67.)

         Plaintiff also reports the following changes to her daily activities:

It takes client 30-40 minutes to take a shower. It has taken her longer to get dressed because she feels unbalanced and is afraid to fall. Experiences pain when putting her clothes on. Putting on her pants causes stress and pain that stem from below her knee downward, as well as, lower back and hip. She cannot cook herself meals due to the carpal tunnel that prevents her from chopping food and her inability to stand for long periods. She relies heavily on instant foods. When going to the grocery store she needs assistance from other such as her roommate or her nephew. When she is out of groceries she waits until someone can go with her, otherwise she cannot do it on her own.
Client has not been able to increase her activities. She is not able to enjoy going to the movies because she cannot sit for long periods of time. She isolates herself because she cannot engage in activities that she use[d] to enjoy doing, for example walking at the swap meet. She tries to save her strength for appointments such as physical therapy.

(AR 371.)

         b. Function Report-Adult (July 14, 2014)

         In a “Function Report-Adult, ” completed by Plaintiff's case manager and signed by Plaintiff on July 14, 2014, Plaintiff claims that her illnesses, injuries, and/or conditions limit her ability to work in the following ways:

Chronic neck pain gives headaches, can't turn head, causes stress and depression. Pain in mouth from grinding teeth. Carpal tunnel cannot use hands a lot of writing or typing, any repetative hand movements gives shooting pains in hand, drops items. Trouble sleeping. Depression causes crying spells, cries from pain and financial stress. Crys frequently. Feels down on life and always stressed. Arthritis causes pain. Bad memory from her accident, forgets daily things she should know. Back and [remainder cut off].

(AR 347.)

         In the Function Report, Plaintiff describes her daily activities from the time she wakes up until the time she goes to bed as follows: “wakes up, eats breakfast, trys to clean a little, then has to relax [and] watch tv cause after movement pain will increase as the day goes on, eats lunch and dinner - goes to bed.” (AR 348.) Plaintiff also claims the following: Before the onset of her illnesses, injuries, and/or conditions, Plaintiff was able to work, read, watch television, pay attention/focus, be active and social, volunteer, and go to the park. (AR 348, 351.) Now, Plaintiff's daily hobbies and interests include watching television and napping. (AR 351.) Plaintiff cannot sleep because she is in too much pain. (AR 348.) She also finds ...

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