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Radovska v. Saul

United States District Court, E.D. California

January 13, 2020

RAYISA RADOVSKA, Plaintiff,
v.
ANDREW SAUL, Commissioner of Social Security, Defendant.

          ORDER & FINDINGS AND RECOMMENDATIONS

          CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE

         Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (“Commissioner”) denying an application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act (“Act”). For the reasons discussed below, the undersigned Magistrate Judge will recommend that plaintiff's motion for summary judgment's be granted and the Commissioner's cross-motion for summary judgment be denied.

         BACKGROUND

         Plaintiff, born in 1962, applied on March 24, 2015 for SSI, alleging disability beginning April 2, 2014. Administrative Transcript (“AT”) 16, 249. Plaintiff alleged she was unable to work due to back pain with history of spine trauma fracture, degenerative disc disease, depression, insomnia, anxiety, headaches, chest pains, and right hand numbness. AT 110-111. In a decision dated September 8, 2017, the ALJ determined that plaintiff was not disabled.[1] AT 16-23. The ALJ made the following findings (citations to 20 C.F.R. omitted):

1. The claimant has not engaged in substantial gainful activity since March 24, 2015, the application date.
2. The claimant has the following severe impairments: migraine, depressive disorder and posttraumatic stress disorder.
3. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.
4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant cannot work at heights or around moving machinery, cannot climb ladders, ropes or scaffolds, can understand, remember and carry out detailed and simple job tasks and instructions and interact appropriately with others.
5. The claimant is capable of performing past relevant work as a home attendant. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity.
6. The claimant has not been under a disability, as defined in the Social Security Act, since March 24, 2015, the date the application was filed.

AT 18-23.

         ISSUES PRESENTED

         Plaintiff argues that the ALJ committed the following errors in finding plaintiff not disabled: (1) The residual functional capacity is not supported by substantial evidence; (2) The ALJ improperly discounted plaintiff's subjective symptom testimony; and (3) the ALJ improperly discounted third-party lay witness testimony.

         LEGAL STANDARDS

         The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). “The court will uphold the ALJ's conclusion when the evidence is susceptible to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).

         The record as a whole must be considered, Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986), and both the evidence that supports and the evidence that detracts from the ALJ's conclusion weighed. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the ALJ's decision simply by isolating a specific quantum of supporting evidence. Id.; see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or if there is conflicting evidence supporting a finding of either disability or nondisability, the finding of the ALJ is conclusive, see Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied in weighing the evidence. See Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).

         ANALYSIS

         Before turning to plaintiff's claims, the undersigned notes the following background facts:

         Plaintiff came to the United States in 2004, after working for nine years as a bookkeeper and cashier for a construction company in the Ukraine. AT 97-98, 244. In 2008, a California State administrative law judge found plaintiff disabled as of September 2007, based on chronic headaches and ongoing depression, and eligible for the Cash Assistance Program for Immigrants (CAPI). AT 343-353.

         At plaintiff's June 2017 hearing on her disability application, she testified that she suffered a stroke “eight years ago, ” or 2009. AT 98. In December 2010, treating physician Dr. Susan Andrews filled out a medical certification form for plaintiff's naturalization application, stating that plaintiff had “posttraumatic stress disorder and traumatic brain injury after a stroke in 2006.”[2] AT 576-577. Based on this certification, plaintiff obtained an exception to the English and civics testing requirements for naturalization “because of physical or developmental disability or mental impairment.” AT 575-579. Plaintiff became a naturalized citizen in 2011. AT 244.

         Beginning that year, plaintiff worked as an in-home caregiver and took care of her father until his death in April 2014. AT 98, 270-271.

         A. Credibility

         Plaintiff asserts that the ALJ improperly discounted her subjective symptom allegations. Specifically, the ALJ discounted plaintiff's allegations of “functionally limiting headaches” and “impaired psychological functioning.” AT 22.

         The ALJ determines whether a disability applicant is credible, and the court defers to the ALJ's discretion if the ALJ used the proper process and provided proper reasons. See, e.g., Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1995). If credibility is critical, the ALJ must make an explicit credibility finding. Albalos v. Sullivan, 907 F.2d 871, 873-74 (9th Cir. 1990); Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990) (requiring explicit credibility finding to be supported by “a specific, cogent reason for the disbelief”).

         In evaluating whether subjective complaints are credible, the ALJ should first consider objective medical evidence and then consider other factors. Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc). If there is objective medical evidence of an impairment, the ALJ then may consider the nature of the symptoms alleged, including aggravating factors, medication, treatment and functional restrictions. See id. at 345-47. The ALJ also may consider: (1) the applicant's reputation for truthfulness, prior inconsistent statements or other inconsistent testimony, (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment, and (3) the applicant's daily activities. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996); see generally SSR 96-7P, 61 FR 34483-01; SSR 95-5P, 60 FR 55406-01; SSR 88-13. Work records, physician and third party testimony about nature, severity and effect of symptoms, and inconsistencies between testimony and conduct also may be relevant. Light v. Social Security Administration, 119 F.3d 789, 792 (9th Cir. 1997). A failure to seek treatment for an allegedly debilitating medical problem may be a valid consideration by the ALJ in determining whether the alleged associated pain is not a significant nonexertional impairment. See Flaten v. Secretary of HHS, 44 F.3d 1453, 1464 (9th Cir. 1995). The ALJ may rely, in part, on his or her own observations, see Quang Van Han v. Bowen, 882 F.2d 1453, 1458 (9th Cir. 1989), which cannot substitute for medical diagnosis. Marcia v. Sullivan, 900 F.2d 172, 177 n.6 (9th Cir. 1990). “Without affirmative evidence showing that the claimant is malingering, the Commissioner's reasons for rejecting the claimant's testimony must be clear and convincing.” Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999).

         At the June 2017 hearing, plaintiff testified that she got two or three hours of sleep a night and suffered daily headaches. AT 99. She testified that medication helped with the severity of her headaches, which were brought on by noise and worry and were “there all the time.” AT 99-100. Plaintiff testified that she had to lie down multiple times a day, every day, due to her headaches. AT 100-101. Plaintiff further testified that medication helped with her depression, but that she still got upset “frequently” and had weekly panic attacks that lasted up to six hours. AT 103. Plaintiff also testified that she had problems with memory and concentration, such as forgetting where she put things in the house. AT 105-106; see AT 22 (ALJ's summary of plaintiff's subjective symptoms, ...


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