Cristina Sanchez Lopez v. Kilolo Kijakazi

• Court: District Court, C.D. California
• Decided: August 25, 2022
• Docket: 5:21-cv-01147
• Status: Unknown

Opinion

Case 5:21-cv-01147-GJS Document 23 Filed 08/25/22 Page 1 of 9 Page ID #:1879

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

11 CRISTINA L.,1 Case No. 5:21-cv-01147-GJS

12 Plaintiff

13 v. MEMORANDUM OPINION AND ORDER 14 KILOLO KIJAKAZI, Acting Commissioner of Social Security, 15 Defendant. 16

17 18 I. PROCEDURAL HISTORY 19 Plaintiff Cristina L. (“Plaintiff”) filed a complaint seeking review of the 20 decision of the Commissioner of Social Security denying her applications for 21 Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). 22 The parties filed consents to proceed before the undersigned United States 23 Magistrate Judge [Dkts. 11 and 12] and briefs addressing disputed issues in the case 24 [Dkt. 20 (“Pltf. Br.”), Dkt. 21 (“Def. Br.”)], and Dkt. 22 (Pltf.’s Reply)]. The Court 25 has taken the parties’ briefing under submission without oral argument. For the 26

27 1 In the interest of privacy, this Order uses only the first name and the initial of the last name 28 of the non-governmental party. Case 5:21-cv-01147-GJS Document 23 Filed 08/25/22 Page 2 of 9 Page ID #:1880

1 reasons discussed below, the Court finds that this matter should be affirmed. 2 3 II. ADMINISTRATIVE DECISION UNDER REVIEW 4 Plaintiff filed applications for SSI and DIB, alleging disability as of 5 September 1, 2016. [Dkt. 15, Administrative Record (“AR”) 245-246.] Plaintiff’s 6 applications were denied at the initial level of review and on reconsideration. [AR 7 15, 79-92.] On February 4, 2021, a hearing was held before Administrative Law 8 Judge Henry Kramzyk (“the ALJ”). [AR 15-29.] On March 18, 2021, the ALJ 9 issued an unfavorable decision. [AR 16-25.] 10 The ALJ applied the five-step sequential evaluation process to find Plaintiff 11 not disabled. See 20 C.F.R. § 416.920(b)-(g)(1). At step one, the ALJ found that 12 Plaintiff had not engaged in substantial gainful activity since the alleged onset date. 13 [AR 18.] At step two, the ALJ found that Plaintiff suffered from severe 14 impairments including lumbar degenerative disc disease, degenerative joint disease 15 of the knees, carpal tunnel syndrome, and obesity. [AR 17.] At step three, the ALJ 16 determined that Plaintiff did not have an impairment or combination of impairments 17 that meets or medically equals the severity of one of the impairments listed in 18 Appendix I of the Regulations, (“the Listings”). [AR 19]; see 20 C.F.R. Pt. 404, 19 Subpt. P, App. 1. Next, the ALJ found that Plaintiff had the residual functional 20 capacity (“RFC”) to perform light work (20 C.F.R. § 404.1567, with the following 21 limitations: she can lift, carry, push, and pull 20 pounds occasionally 22 and 10 pounds frequently. She can sit for 6 hours in an 23 eight-hour workday and stand and/or walk for 4 hours in an eight-hour workday. She can frequently push and pull 24 with both lower extremities. She can occasionally climb 25 ramps and stairs. She can never climb ladders, ropes, or scaffolds. She can occasionally balance and stoop. She can 26 never crouch, kneel, or crawl. She can frequently handle 27 and finger with both hands. She can frequently push and pull with both upper extremities. She must avoid 28 2 Case 5:21-cv-01147-GJS Document 23 Filed 08/25/22 Page 3 of 9 Page ID #:1881

concentrated exposure to extreme cold and extreme heat. 1 She must avoid concentrated exposure to humidity. She 2 must avoid concentrated exposure to fumes, odors, dusts, gases, and pulmonary irritants. She must avoid 3 concentrated exposure to vibration. She must avoid 4 concentrated exposure to hazards such as dangerous machinery and unprotected heights. 5

6 [AR 21.] At step four, the ALJ found that Plaintiff was unable to perform any past 7 relevant work. [AR 26.] At step five, the ALJ determined that Plaintiff could 8 perform jobs existing in significant numbers in the national economy, including 9 representative occupations such as day worker, fast food worker, and fast-food 10 worker/cleaner based on Plaintiff’s RFC, age (44 years at time of application), 11 limited education, and work experience. [AR 27.] 12 The Appeals Council denied review of the ALJ’s decision on May 21, 2021. 13 [AR 1-6.] This action followed. 14

15 III. GOVERNING STANDARD 16 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 17 determine if: (1) the Commissioner’s findings are supported by substantial 18 evidence; and (2) the Commissioner used correct legal standards. Carmickle v. 19 Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 20 499 F.3d 1071, 1074 (9th Cir. 2007). Substantial evidence is “such relevant 21 evidence as a reasonable mind might accept as adequate to support a conclusion.” 22 Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citation and quotations 23 omitted); see also Hoopai, 499 F.3d at 1074. 24 IV. DISCUSSION 25 Plaintiff asserts that the ALJ failed to state sufficient reasons for discounting 26 her subjective symptom statements about her hand pain and lack of sensation. 27 [Pltf.’s Br. at 4-8.] 28 3 Case 5:21-cv-01147-GJS Document 23 Filed 08/25/22 Page 4 of 9 Page ID #:1882

1 At the administrative hearing, Plaintiff testified that she stopped working 2 following carpal tunnel surgery on both of her hands. [AR 58.] She also suffers 3 from a heart problem, chronic asthma, allergies, knee pain, back pain, kidney 4 disfunction, and depression. [AR 58-59.] Due to Plaintiff’s many impairments, she 5 experiences pain all over her entire body that limits her ability to sleep at night. 6 [AR 60.] Plaintiff testified she can lift or carry a gallon of milk/water; she can walk 7 for 10 minutes before needing to take a break; and she can stand for 20 minutes 8 before needing to sit down. [AR 60-62.] 9 With respect to her daily activities, Plaintiff testified that she uses her hands 10 to do “light stuff” including cooking, washing the dishes, and grocery shopping. 11 [AR 62.] Plaintiff takes public transportation, and she is able to shower and dress 12 herself daily. [AR 63.] Plaintiff also sends texts to her family using her 13 smartphone. When her hands get tired from texting or washing the dishes, she 14 stops. [AR 65-66.] 15 Because there is no allegation of malingering and the ALJ found that 16 “claimant’s medically determinable impairments could reasonably be expected to 17 cause some of the alleged symptoms” [AR 22], the ALJ’s reasons for discounting a 18 claimant’s testimony must be clear and convincing. Lingenfelter v. Astrue, 504 F.3d 19 1028, 1036 (9th Cir. 2007). Even if “the ALJ provided one or more invalid reasons 20 for disbelieving a claimant’s testimony,” if he “also provided valid reasons that were 21 supported by the record,” the ALJ’s error “is harmless so long as there remains 22 substantial evidence supporting the ALJ’s decision and the error does not negate the 23 validity of the ALJ’s ultimate conclusion.” Molina v. Astrue, 674 F.3d 1104, 1115 24 (9th Cir. 2012) (internal quotation omitted). 25 Here, the ALJ gave two clear reasons to reject Plaintiff’s credibility: (1) 26 inconsistencies between Plaintiff’s testimony and her daily activities; and (2) 27 inconsistencies between the objective medical evidence and Plaintiff’s allegations of 28 severe limitations and pain. The Court takes each in turn. 4 Case 5:21-cv-01147-GJS Document 23 Filed 08/25/22 Page 5 of 9 Page ID #:1883

1 1. Inconsistencies Between Plaintiff’s Testimony and Her Daily 2 Activities 3 First, the ALJ found that Plaintiff’s reported daily activities are not consistent 4 with her allegations of subjective symptoms and pain. [AR 26-27.] The ALJ’s 5 conclusion here is supported by substantial evidence. Plaintiff’s daily activities bear 6 on her credibility if the level of activity is inconsistent with her claimed limitations. 7 See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). Thus, an ALJ may rely 8 on a Plaintiff’s daily activities to support an adverse credibility determination only 9 when those activities either “contradict [the plaintiff’s] other testimony,” or “meet 10 the threshold for transferable work skills”; i.e., where she “is able to spend a 11 substantial part of . . . her day performing household chores or other activities that 12 are transferable to a work setting.” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 13 2007). However, a claimant need not be “utterly incapacitated to be eligible for 14 benefits, and many home activities may not be easily transferable to a work 15 environment where it might be impossible to rest periodically or take medication.” 16 Id.; see Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). The Ninth Circuit has 17 “repeatedly asserted that the mere fact that a plaintiff has carried on certain daily 18 activities, such as grocery shopping, driving a car, or limited walking for exercise, 19 does not in any way detract from her credibility as to her overall disability.” 20 Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001). 21 Here, Plaintiff testified that she has trouble grasping items [AR 62] but that 22 she can lift and carry a gallon of water; she has no dishwasher and instead washes 23 dishes by hand; and when she grocery shops she leans on a cart to support her 24 weight. [AR 62-63.] The ALJ, noting this testimony, found that Plaintiff “cooks, 25 does the dishes, uses public transportation, attends support groups, attends church, 26 and watches television.” [AR 24.] The ALJ concluded that these described 27 activities diminished Plaintiff’s allegations regarding her symptoms because “those 28 allegations are greater than expected in light of the record and in light of [Plaintiff’s] 5 Case 5:21-cv-01147-GJS Document 23 Filed 08/25/22 Page 6 of 9 Page ID #:1884

1 own statements.” [AR 24.] Plaintiff argues that the ALJ failed to explain how these 2 daily activities contradict her testimony about her lack of “hand strength, mobility, 3 [or] sensation.” [Pltf.’s Br. at 7.] Further, Plaintiff argues that while she is able to 4 perform activities around the house, “she performs these activities at her own pace.” 5 [Pltf.’s Br. at 7.] 6 Despite Plaintiff’s argument to the contrary, it was reasonable for the ALJ to 7 conclude that Plaintiff’s admitted daily activities are inconsistent with her testimony 8 regarding her hand limitations. The ALJ properly cited several examples identifying 9 inconsistencies between Plaintiff’s testimony and the activities she engaged in. See 10 Burkett v. Berryhill, 732 F. App’x 547, 552 (9th Cir. 2018) (finding ALJ did not err 11 in relying on claimant’s activities where “ALJ cited examples in the record 12 illustrating inconsistencies between [claimant’s] testimony concerning the limiting 13 effects of her symptoms and her activities”). For example, the ALJ noted that 14 Plaintiff “testified that she has difficulty using her hands and has trouble grasping,” 15 but that Plaintiff also testified that “she can lift a gallon of milk” (AR 22) weighing 16 approximately “eight or nine pounds.” [AR 61.] The ALJ’s reasoning here is not 17 arbitrary, but rather compelling. Plaintiff testified that her hand impairments 18 prevent her from working. [AR 58.] Yet, she offered ample testimony that she 19 performs fine manipulation using her hands and that she regularly grasps with her 20 hands during her daily routine. As Plaintiff testified, she has no problems gripping 21 plates to wash dishes (AR 66), she leans on a cart, presumably using her hands, to 22 grocery shop (AR 62-63), and she uses her “smartphone” to send texts to family and 23 friends. [AR 65.] 24 Although Plaintiff argues in her brief that she does these activities “at her own 25 pace,” there was little in the record to indicate the speed of that pace. When asked 26 at the hearing by her attorney about the difficulty she experiences when using her 27 hands, Plaintiff’s answers were largely non-responsive. Plaintiff’s questioning by 28 her attorney was as follows: 6 Case 5:21-cv-01147-GJS Document 23 Filed 08/25/22 Page 7 of 9 Page ID #:1885

1 [Q]: Okay. You mentioned that you washed dishes, do you, is 2 that do you have any problems washing dishes? 3 [A]: With the plates, no, but when it comes to the pans and 4 stuff, yeah, it’s not as, I mean the dip. 5 [Q]: Because you have difficulty gripping? 6 [A]: Yes. 7 Q]: Okay. And you, you just talked about using your phone. 8 Do you have trouble using your fingers still or [are] your 9 fingers all better now after the surgeries? 10 [A]: The fingers like I’ll be holding the way that I hold the 11 phone, you know, just, or that with the pen. 12 [Q]: What, what do you mean, you have trouble using the pen? 13 [A]: No, my, I mean I have my phone, I’m able to dial and look 14 up what I need, but when my hands get tired, I stop. 15 [Q]: Okay. Do your hands get tired when you use them like 16 you’re washing the dishes? 17 [A]: Yes. 18 [AR 66.] 19 There is nothing in the record to suggest how long Plaintiff uses her phone or 20 washes dishes before her hands get tired and she is unable to use them. Plaintiff did 21 not indicate that she needs to take frequent breaks when doing these activities. Nor 22 did Plaintiff state that she needs help to conduct these activities, that she reserves 23 these activities for her “good days,” or that she does these activities infrequently. 24 To the contrary, according to the above testimony, Plaintiff likens her ability to use 25 her phone to her ability to wash dishes—an activity she completes with only limited 26 difficulty. [AR 66.] Such unclear statements from Plaintiff are insufficient to 27 overcome the rational conclusion that Plaintiff’s activities suggest abilities 28 inconsistent with the extreme limitations she alleges. See Revels v. Berryhill, 874 7 Case 5:21-cv-01147-GJS Document 23 Filed 08/25/22 Page 8 of 9 Page ID #:1886

1 F.3d 648, 667-68 (9th Cir. 2017) (ALJ erred in finding disparity between claimant’s 2 reported daily activities and symptom testimony where the ALJ failed to 3 acknowledge the claimant’s explanation consistent with her symptom testimony that 4 she could complete only some tasks in a single day and regularly needed to take 5 breaks). 6 Thus, the ALJ’s reliance on Plaintiff’s ability to do activities like wash dishes 7 or cook, even if not indicative by itself of an ability to work, is inconsistent with 8 Plaintiff’s claimed limitations regarding her hand limitations. See Molina, 674 F.3d 9 at 1113 (“Even when those activities suggest some difficulty in functioning, they 10 may be grounds for discrediting the claimant’s testimony to the extent they 11 contradict claims of a totally debilitating impairment.”); Valentine v. Comm’r of 12 Soc. Sec., 574 F.3d 685, 693 (9th Cir. 299) (although daily activities did not show 13 that the Plaintiff could work, “it did suggest that Valentine’s later claims about the 14 severity of his limitations were exaggerated.”). Accordingly, this first reason 15 proffered by the ALJ is properly supported by the evidence and constitutes a clear 16 and convincing reason for rejecting Plaintiff’s symptom testimony. See Reddick v. 17 Chater, 157 F.3d 715, 722 (9th Cir. 1998) (finding that if a Plaintiff’s level of 18 activities is inconsistent with her claimed limitations then the activities of daily 19 living have a bearing on the Plaintiff’s credibility). The Court’s analysis could end 20 here. 21 2. Inconsistency with the Objective Medical Evidence 22 Second, the ALJ discounted Plaintiff’s testimony because it conflicted with 23 the medical evidence in the record. [AR 23.] This too was a factor the ALJ was 24 permitted to consider when assessing Plaintiff’s credibility. Burch v. Barnhart, 400 25 F.3d 676, 681 (9th Cir. 2005). (“Although lack of medical evidence cannot form the 26 sole basis for discounting pain testimony, it is a factor that the ALJ can consider in 27 his credibility analysis.”). As the ALJ highlighted in his opinion, following carpel 28 tunnel surgery in both hands, examinations showed that Plaintiff had 5/5 grip 8 Cage 5:21-cv-01147-GJS Document 23 Filed 08/25/22 Page9of9 Page ID #:1887

1 || strength in both hands. [AR 23, 1538, 1590.] Additionally, the two medical experts 2 || who reviewed the records documenting Plaintiff's hand complaints and treatment, 3 || concluded that despite her impairment, she could still handle and finger on a 4 || frequent basis. [AR 25, 89, 103, 121, 139.] Finding this portion of the evidence 5 || agreeable, the ALJ ultimately found that the relevant medical evidence in the file 6 || demonstrated that Plaintiff's ability to “frequently handle and finger with both 7 || hands” is inconsistent with Plaintiff's statements regarding the degree of limiting 8 || effects of her symptoms. [AR 21, 23-25.] Thus, the ALJ properly found that 9 || Plaintiff's testimony was inconsistent with the medical evidence. 10 In sum, the ALJ gave at least one or more clear and convincing reason for 11 || finding Plaintiff's testimony less than fully credible that was supported by 12 || substantial evidence from the record. Accordingly, the ALJ’s adverse credibility 13 || determination was not made in error. 14 15 Vv. CONCLUSION 16 For all of the foregoing reasons, IT IS ORDERED that the decision of the 17 || Commissioner finding Plaintiff not disabled is AFFIRMED. 18 19 IT IS ORDERED. 20 21 || DATED: August 25, 2022 ] 22 73 GAIL F STANDISH UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28