De Guzman v. Astrue

343 F. App'x 201
Court of Appeals for the Ninth Circuit·Decided August 18, 2009·No. No. 08-35496·Published·Cited by 6 cases

Opinions

MEMORANDUM *

Leticia De Guzman appeals the district court’s decision upholding the Social Security Administration (“SSA”) Commissioner’s denial of her application for disability insurance and supplemental social security income benefits. Because the parties are familiar with the facts of this case, we recount them here only as necessary.

De Guzman contends that the administrative law judge (“ALJ”) erred in making an adverse credibility determination and rejecting the opinions of three of her doctors. We review the district court’s order affirming the Commissioner’s denial of benefits de novo to determine whether such denial “was supported by substantial evidence and a correct application of the law.” Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir.1995). “Where evidence is susceptible to more than one rational interpretation, it is the ALJ’s conclusion that must be upheld.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.2005).

I

De Guzman challenges the ALJ’s conclusion that she was not entirely credible because of inconsistencies between her reported activities and her alleged limitations, as well as a lack of objective medical evidence to corroborate her symptoms.

A

De Guzman reported wildly varying activity levels over the course of several months that were inconsistent with her claims of chronic, debilitating pain. On January 27, 2003, Dr. Luis Wainstein performed a disability evaluation. She told him that she had experienced “abdominal pain ever since 1995 when she underwent abdominal surgery,” as well as daily headaches that “started shortly after her abdominal surgery.” Nevertheless, she could still work as a hotel housekeeper, “walk 4-5 blocks going to downtown Seattle ... without discomfort,” “clean the bathroom and use[ ] the vacuum cleaner in the apartment,” and wash dishes. When he asked her how she was able to work despite her pain, she told him that “lately this has been getting worse.” However, Dr. Wainstein could not determine a medical explanation for the “aggravation of her symptoms.” Shortly after this visit, De [204] Guzman had a chest x-ray and CT scan with unremarkable findings.

After her first disability claim was denied, her symptoms suddenly took a turn for the worse. She filed a request for reconsideration on March 26, 2003, asserting that she was “always very sick” and could not work “due to the pain I always feel in my head, stomach, and chest.” She claimed that she could not “do any house chores because of pain and fatigue” and was “homebound,” “staying] in bed all day because of pain” in her stomach, head, and chest. Three months later, in June 2003, she acknowledged in her daily activities questionnaire that since the onset of her alleged disability, she did light housework such as a “little dusting and sweeping” and used public transportation to go out with her husband.1

A claimant’s “prior statements inconsistent with [her] claim of pain ... may be properly taken into account in determining whether or not [her] claim of disabling pain should be believed.” Fair v. Bowen, 885 F.2d 597, 604 n. 5 (9th Cir.1989). It is certainly true that “[s]ymptoms may vary in their intensity, persistence, and functional effects, or may worsen or improve with time, and this may explain why the individual does not always allege the same intensity, persistence, or functional effects of his or her symptoms.” Soc. Sec. Rul. 96-7p. Hence, the ALJ may look to the case record to find “explanations for any variations in the individual’s statements about symptoms and their effects.” Id. Here there was no objective medical evidence to account for De Guzman’s fluctuating activity levels over this six-month period. While the lack of such evidence is “only one factor that the adjudicator must consider in assessing an individual’s credibility,” id., the record as a whole supports the ALJ’s conclusion that she was not entirely credible.

When she first applied for disability benefits in 2002,2 she alleged post-operative stomach pain and claimed that she “became unable to work because of [her] disabling condition on December 1, 2002.” However, she admittedly continued working as a hotel housekeeper until January 29, 2003. According to the ALJ, that De Guzman continued to work despite her “alleged continued difficulties” was “[m]ost damaging to [her] credibility.” The ALJ properly relied upon discrepancies in her 2002 application in making his adverse credibility determination. See Soc. Sec. Rul. 96-7p (noting that in assessing credibility, the ALJ “must also look at statements the individual made to SSA at each prior step of the administrative review process and in connection with any concurrent claim or, when available, prior claims for disability benefits”).

B

In making the adverse credibility determination, the ALJ also cited De Guzman’s routine and conservative treatment as well as “absent or only mild objective findings and observation of no major difficulties with functioning during the bulk of her examinations.”

[205] Although it is true that De Guzman had major surgery to treat her cervical condition, she herself was “very pleased with her increasing mobility, her lack of pain, and her lack of falls,” and she now admits that “the surgery was successful.” Dr. Johnston observed that she recovered “amazingly well” from the operation, with reduced neck pain that was “mild” and “well controlled with Tylenol.” Her films showed normal spinal alignment, and her doctors were “quite happy” with her outcome.

During her post-operative follow-up visits, she denied having dizziness or light-headedness except at one visit, when she said she had experienced dizziness on and off. However, it had resolved itself by the next visit. She did not report any dizziness to her doctors subsequent to September 2004, though in May 2005 she testified at the first hearing that she still experienced dizziness brought on “[w]hen I get up and also when I clean, like cleaning the bathroom.” Though she testified both in May 2005 and December 2006 that she took daily naps, she attributed them to fatigue rather than dizziness.

She still occasionally reported having headaches associated with a bony mass on her left frontal bone, which was removed in December 2005. By January 2006, she was “doing well” and “[djenying any pain,” though her head and neck pain had apparently returned by the time of her second hearing in December 2006.

Although De Guzman reported a history of leg weakness, knee pain, balance issues, and a history of falling, her x-rays were normal, and her treating physician, Dr. Christine Johnston, noted that her “current constellation of symptoms is not necessarily consistent with any clear neurological process.” After her third fall in March 2004, De Guzman visited the emergency room and “asked [the doctor] to assess [her] for [a] walker.” The doctor complied with this request, and she was fitted with a walker at this time.

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De Guzman v. Astrue, 343 F. App'x 201 (9th Cir. 2009).

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