United States District Court, E.D. California
ORDER & FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
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
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. 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
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
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.
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.
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).
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).
turning to plaintiff's claims, the undersigned notes the
following background facts:
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.
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.” 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.
that year, plaintiff worked as an in-home caregiver and took
care of her father until his death in April 2014. AT 98,
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.
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
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).
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, ...