Lippucci v. Berryhill

• Court: District Court, S.D. California
• Decided: March 2, 2020
• Docket: 3:19-cv-00705
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GIAVANNA L., Case No.: 3:19-cv-00705-RNB

12 Plaintiff, MEMORANDUM OPINION AND 13 v. ORDER REGARDING CROSS- MOTIONS FOR SUMMARY 14 ANDREW SAUL, Commissioner of JUDGMENT Social Security,1 15 Defendant. (ECF Nos. 16, 17) 16

17 18 On April 16, 2019, plaintiff filed a Complaint pursuant to 42 U.S.C. § 405(g) seeking 19 judicial review of a decision by the Commissioner of Social Security denying her 20 applications for a period of disability and disability insurance benefits, and for 21 Supplemental Security Income (“SSI”). The operative complaint is the First Amended 22 Complaint filed by plaintiff on July 8, 2019. (See ECF No. 7.) Now pending before the 23 Court and ready for decision are the parties’ cross-motions for summary judgment.2 For 24 25 26 1 Andrew Saul is hereby substituted as the defendant in this case per Fed. R. Civ. P. 27 25(d).

28 1 the reasons set forth herein, plaintiff’s motion for summary judgment is DENIED and the 2 Commissioner’s cross-motion for summary judgment is GRANTED. 3 4 PROCEDURAL BACKGROUND 5 On June 9, 2015, plaintiff filed applications for a period of disability and disability 6 insurance benefits and for SSI, alleging disability commencing December 31, 2012. 7 (Certified Administrative Record [“AR”]) 224-25, 226-31.) Her applications were denied 8 initially and upon reconsideration. (AR 169-73, 176-80.) 9 On May 18, 2016, plaintiff requested a hearing before an administrative law judge 10 (“ALJ”). (AR 381-82.) The hearing was held on March 1, 2018. Plaintiff appeared with 11 counsel, and testimony was taken from her, a medical expert (“ME”), and a vocational 12 expert (“VE”). (See AR 52-100.) The ALJ issued a decision on April 10, 2018, finding 13 that plaintiff was not disabled for purposes of her benefits applications. (AR 15-26.) 14 Thereafter, on April 28, 2018, plaintiff requested review of the decision by the 15 Appeals Council. (AR 223.) The ALJ’s decision became the final decision of the 16 Commissioner on February 13, 2019, when the Appeals Council denied plaintiff’s request 17 for review. (AR 1-6.) This timely civil action followed. 18 19 SUMMARY OF THE ALJ’S FINDINGS 20 In rendering his decision, the ALJ initially determined that plaintiff met the insured 21 status requirements of the Social Security Act through December 31, 2016. (AR 18.) The 22 ALJ proceeded to follow the Commissioner’s five-step sequential evaluation process. See 23 20 C.F.R. §§ 404.1520, 416.920.3 24 25 26 3 Unless otherwise indicated, all references herein to the Commissioner’s regulations 27 are to the regulations in effect at the time of the ALJ’s decision. Hereafter, the Court will only be citing the regulations applicable to disability insurance benefits applications 28 1 At step one, the ALJ found that plaintiff had not engaged in substantial gainful 2 activity since December 31, 2012, the alleged onset date. (AR 18.) 3 At step two, the ALJ found that plaintiff had the following severe impairments: 4 “Crohn’s disease of the small bowel and colon; interstitial cystitis; obesity; anxiety NOS; 5 and depression NOS.” (AR 18.) 6 At step three, the ALJ found that plaintiff did not have an impairment or combination 7 of impairments that met or medically equaled the severity of one of the impairments listed 8 in the Commissioner’s Listing of Impairments. (AR 19.) 9 Next, the ALJ determined that plaintiff had the residual functional capacity (“RFC”) 10 to perform light work as defined in the Commissioner’s regulations, subject to certain non- 11 exertional limitations. (AR 20.) Specifically, the ALJ found: 12 “[S]he can lift and carry 20 pounds occasionally and 10 pounds frequently; and can stand and/or walk for 6 hours out of an 8-hour workday, and sit for 6 13 hours out of an 8-hour workday, with normal breaks; must avoid concentrated 14 exposure to extreme cold and extreme heat; must avoid concentrated exposure to fumes, odors, dusts, gases, poor ventilation, and other pulmonary irritants; 15 must have ready access to restroom facilities, meaning being able to get to a 16 restroom from the work area in less than three minutes; can understand, remember, and carry out simple instructions for simple repetitive tasks; with 17 no high stress work, but can tolerate simple decision making and few 18 workplace changes.” (Id.)

20 For purposes of his step four determination, the ALJ adduced and accepted the VE’s 21 testimony that a hypothetical person with plaintiff’s vocational profile and RFC would not 22 be able to perform and sustain any of plaintiff’s past relevant work. Accordingly, the ALJ 23 found that plaintiff was unable to perform any of her past relevant work. (AR 24.) 24 The ALJ then proceeded to step five of the sequential evaluation process. Based on 25 the VE’s testimony that a hypothetical person with plaintiff’s vocational profile and RFC 26 could perform the requirements of representative occupations that existed in significant 27 numbers in the national economy such as photo copy machine operator, sales attendant, 28 housekeeping cleaner, the ALJ found that plaintiff had not been under a disability at any 1 time from December 31, 2012 (the alleged onset date) through the date of his decision. 2 (AR 25-26.) 3 Accordingly, the ALJ concluded that plaintiff was not disabled. (AR 26.) 4 5 PLAINTIFF’S CLAIMS OF ERROR 6 1. The ALJ impermissibly rejected plaintiff’s subjective symptom testimony. 7 2. The ALJ failed to reject the lay witness testimonial evidence. 8 9 STANDARD OF REVIEW 10 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 11 determine whether the Commissioner’s findings are supported by substantial evidence and 12 whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 13 (9th Cir. 1991). Substantial evidence means “more than a mere scintilla” but less than a 14 preponderance. Richardson v. Perales, 402 U.S. 389, 401 (1971); Desrosiers v. Sec’y of 15 Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is 16 “such relevant evidence as a reasonable mind might accept as adequate to support a 17 conclusion.” Richardson, 402 U.S. at 401. The Court must review the record as a whole 18 and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529- 19 30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, 20 the Commissioner’s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 21 (9th Cir. 1984). 22 23 DISCUSSION 24 A. Reversal is not warranted based on the ALJ’s alleged failure to make a proper 25 adverse credibility determination. 26 Plaintiff’s first claim of error is directed to the ALJ’s adverse credibility 27 determination with respect to plaintiff’s administrative hearing testimony concerning her 28 need for frequent bathroom breaks as a result of her severe Crohn’s disease and interstitial 1 cystitis. (See ECF No. 16-1 at 5-11.) Plaintiff testified that she stopped working back in 2 2012 because the nature of her impairments would have her going to the bathroom for a 3 long periods of time up to 45 minutes; that she would have to be in the bathroom for 15-45 4 minutes each time; and that at best she goes to the bathroom 2-3 times a day and at worst 5 5-6 times a day. (See AR 62, 76, 84-87.) 6 As a preliminary matter, the Court does not construe the ALJ’s RFC determination 7 as a complete rejection of plaintiff’s testimony concerning her need for frequent bathroom 8 breaks. In the Court’s view, the ALJ adequately accommodated plaintiff’s testimony 9 regarding the frequency of the bathroom breaks she needed to take as a result of her Crohn’s 10 disease and interstitial cystitis by specifying that (a) plaintiff be entitled to take normal 11 breaks; and (b) plaintiff “must have ready access to restroom facilities, meaning being able 12 to get to a restroom from the work area in less than three minutes.” In addition, inasmuch 13 as plaintiff had testified that the frequency of the bathroom breaks she had to take was tied 14 to how stressed out she was (see AR 97), the ALJ further accommodated plaintiff’s 15 testimony regarding the frequency of the bathroom breaks she needed to take by specifying 16 that (a) the work not be “high stress”; and (b) the work be limited to “simple repetitive 17 tasks,” “simple decision making,” and “few workplace changes.” In his hypothetical to the 18 VE, the ALJ posited an individual who was going to be off task from the job duties for 19 bathroom breaks for 15 minutes twice a day in addition to the normal 15-minute morning 20 and afternoon breaks and the typical half-lunch break. (See AR 93.) In other words, a total 21 of five extended bathroom breaks each workday. The VE testified that the three jobs he 22 had identified would still be available. (See AR 93-94.) 23 However, in the Court’s view, the ALJ’s RFC determination and ultimate finding 24 that plaintiff’s impairments were not of disabling severity did constitute an implicit 25 rejection of plaintiff testimony regarding the duration of the bathroom breaks she needed 26 to take as a result of her Crohn’s disease. The VE testified that no employer would tolerate 27 a hypothetical individual who had to go into the restroom for 15-45 minutes throughout the 28 1 workday and who was effectively off task or away from their station 25% of the time. (See 2 AR 94.) 3 The law is well established in this Circuit that, where the claimant has produced 4 objective medical evidence of an impairment or impairments which could reasonably be 5 expected to produce some degree of pain and/or other symptoms, and the record is devoid 6 of any affirmative evidence of malingering, the ALJ may reject the claimant’s testimony 7 regarding the severity of the claimant’s pain and/or other symptoms only if the ALJ makes 8 specific findings stating specific, clear and convincing reasons for doing so. See, e.g., 9 Brown-Hunter v. Colvin, 806 F.3d 487, 492-93 (9th Cir. 2015); Burrell v. Colvin, 775 F.3d 10 1133, 1136-37 (9th Cir. 2014); Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 11 Here, one of the ALJ’s findings was that plaintiff’s medically determinable 12 impairments could reasonably be expected to cause the alleged symptoms; however, 13 plaintiff’s statements concerning the intensity, persistence and limiting effects of these 14 symptoms were “not entirely consistent with the medical evidence and other evidence in 15 the record for the reasons explained in this decision.” (See AR 21.) 16 Since the Commissioner has not argued that the record here contains any evidence 17 of malingering, the Court will apply the “clear and convincing” standard to the ALJ’s 18 adverse credibility determination. 19 Plaintiff would have the Court invoke the rule that “the Commissioner may not 20 discredit the claimant’s testimony as to the severity of symptoms merely because they are 21 unsupported by objective medical evidence.” Reddick v. Chater, 157 F.3d 715, 722 (9th 22 Cir. 1998) (citing Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc)). 23 However, it appears to the Court from the ALJ’s decision that the ALJ had two other 24 reasons for not crediting plaintiff’s testimony regarding the disabling severity of her 25 Crohn’s symptoms (which encompassed her testimony regarding the duration of her 26 bathroom breaks). 27 The ALJ’s primary reason was that plaintiff’s Crohn’s disease was being well 28 managed with appropriate medical treatment. (See AR 21-22, 24.) By way of example, 1 the ALJ cited evidence that plaintiff’s treating gastroenterologist had noted on multiple 2 occasions throughout the relevant time period that, when she was compliant with her 3 prescribed medication, plaintiff’s Crohn’s disease had resolved or was stable or was in 4 remission and/or that plaintiff was doing well overall and/or that her related symptoms had 5 resolved or were in remission. (See AR 500, 504, 766, 786, 828, 832, 834, 856, 858.) 6 Plaintiff herself had reported several times to her treating physicians that her Crohn’s 7 disease was under control and/or that her related symptoms were minimal in nature. (See 8 AR 477, 651, 832, 858.) One time when plaintiff did report that her symptoms had flared 9 up since her prior visit, she had been noncompliant with her medication and special diet. 10 (See AR 669-70.) 11 The Court finds that this reason for not crediting plaintiff’s testimony regarding the 12 severity of her Crohn’s symptoms was supported by the substantial evidence of record. See 13 Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (reiterating that substantial evidence 14 “means—and means only—‘such relevant evidence as a reasonable mind might accept as 15 adequate to support a conclusion’”). The Court further finds that this reason constituted a 16 legally sufficient reason for not crediting plaintiff’s testimony regarding the severity of her 17 Crohn’s symptoms under both the Commissioner’s regulations and Ninth Circuit case law. 18 See 20 C.F.R. § 404.1529(c)(3)(iv)-(v); Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 19 1001, 1006 (9th Cir. 2006) (stating that “[i]mpairments that can be controlled effectively 20 with medication are not disabling for purposes of determining eligibility for [social 21 security] benefits”); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599-600 (9th 22 Cir. 1999) (ALJ may properly base adverse credibility determination on treating 23 physician’s report that claimant’s symptoms had improved with the use of medication). 24 The ALJ also cited another reason in support of his adverse credibility 25 determination: 26 “The claimant has not generally received the type of medical treatment one would expect for a totally disabled individual. The claimant’s course of 27 treatment since her alleged disability onset date has generally reflected a 28 conservative approach. She has not required emergency room or hospital 1 treatment for flare-ups or exacerbations of her symptoms. She has had no gastrointestinal surgeries.” (AR 22.) 2

3 While it appears from plaintiff’s medical records that plaintiff was hospitalized on 4 one occasion with a small bowel obstruction, it further appears that plaintiff had 5 discontinued her Crohn’s medication prior to that incident. (See AR 437.) In any event, 6 the Court concurs with the ALJ’s characterization of plaintiff’s medical treatment for her 7 Crohn’s disease as relatively conservative. See Lee v. Astrue, 695 F. Supp. 2d 1033, 1039- 8 40 (C.D. Cal. 2010) (characterizing treatment of Crohn’s disease with medication as 9 conservative). Moreover, the Court finds that this reason for not crediting plaintiff’s 10 testimony regarding the severity of her Crohn’s symptoms also constituted a legally 11 sufficient reason on which the ALJ could properly rely. See Parra v. Astrue, 481 F.3d 742, 12 751 (9th Cir. 2007) (“We have previously indicated that evidence of ‘conservative 13 treatment’ is sufficient to discount a claimant’s testimony regarding severity of an 14 impairment.”) (citing Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir.1995)); see also 15 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (ALJ may draw adverse 16 inference against claimant’s credibility from fact claimant did not seek an aggressive 17 treatment program). 18 Finally, since the ALJ was not basing his adverse credibility determination solely on 19 the lack of objective evidence to support plaintiff’s testimony regarding the severity of her 20 Crohn’s symptoms, it was not improper for the ALJ to also rely on that reason. Plaintiff 21 has not cited any objective findings in her medical records that her Crohn’s disease caused 22 a need for bathroom breaks for 15-45 minutes throughout the day. See Nyman v. Heckler, 23 779 F.2d 528, 531 (9th Cir. 1985) (noting that “a claimant’s self-serving statements may 24 be disregarded to the extent they are unsupported by objective findings”). 25 The Court therefore finds that reversal is not warranted based on the ALJ’s alleged 26 failure to make a proper adverse credibility determination. 27 28 1 B. Reversal is not warranted based on the ALJ’s failure to properly consider the 2 lay witness testimonial evidence. 3 Plaintiff second claim of error is directed to the ALJ’s apparent failure to even 4 consider the written testimonial evidence provided by plaintiff’s mother. (AR 281-88.) As 5 summarized by plaintiff, plaintiff’s mother averred in pertinent part that plaintiff lives with 6 her; that plaintiff has to make frequent trips to the bathroom; that plaintiff’s sleep is 7 interrupted by the frequent trips to the bathroom; that plaintiff has panic attacks and poor 8 endurance for household tasks; and that plaintiff tires easily. (See ECF No. 16-1 at 12.) 9 The law is well-established in this Circuit that lay witness testimony as to how a 10 claimant’s symptoms affect the claimant’s ability to work is competent evidence and 11 cannot be disregarded without providing specific reasons germane to the testimony 12 rejected. See, e.g., Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996); Dodrill v. 13 Shalala, 12 F.3d 915, 919 (9th Cir. 1993). 14 Here, the ALJ failed to mention the mother’s testimonial evidence, let alone provide 15 any specific reasons germane to the mother’s testimonial evidence for rejecting it. The 16 Commissioner does not dispute that the ALJ erred, but rather maintains that the error was 17 harmless because plaintiff’s mother’s statements were duplicative of plaintiff’s own claims 18 and because plaintiff’s mother did not assert that plaintiff had functional limitations beyond 19 plaintiff’s RFC. (See ECF No. 17-1 at 9-10.) 20 The Court notes that, in her Reply Brief, plaintiff did not address either of the 21 Commissioner’s contentions. The Court concurs with the Commissioner that plaintiff’s 22 mother’s statements were duplicative of plaintiff’s own claims of functional limitations, 23 including frequent trips to the bathroom (see AR 84-85), panic attacks (see AR 81-82), 24 sleep disturbance and fatigue (see AR 295), and limited ability to perform household chores 25 (see AR 296-98). The ALJ addressed these claims of plaintiff in connection with his 26 determination of plaintiff’s RFC. (See AR 21-24.) Indeed, as discussed above, the only 27 part of the ALJ’s adverse credibility determination being challenged by plaintiff is the 28 ALJ’s failure to credit plaintiff’s testimony concerning her need for frequent bathroom 1 breaks. The Court has found that the ALJ’s RFC determination adequately accommodated 2 || plaintiff's testimony regarding the frequency of the bathroom breaks plaintiff needed to 3 ||take. Plaintiff's mother did not say anything about the duration of plaintiff's bathroom 4 ||breaks and the Court has found that the ALJ did not err in failing to credit □□□□□□□□□□□ 5 || testimony concerning that issue. 6 In Molina v. Astrue, 674 F.3d 1104, 1122 (9th Cir. 2012), the Ninth Circuit held that 7 ALJ’s failure to provide specific reasons for rejecting lay testimony was harmless error 8 ||where the lay witness testimony did not describe any more limitations than those the 9 claimant herself had described, which the ALJ had validly rejected. See also, e.g., Vivian 10 || v. Saul, 780 F. App’x 526, 527 (9th Cir. 2019) (holding that ALJ’s error in failing to provide 11 |}germane reasons for discounting lay witness evidence was harmless for same reason); 12 || Shuey v. Astrue, 480 Fed. Appx. 439, 441 (9th Cir. 2012) (same). In accordance with this 13 law authority, the Court concurs with the Commissioner that the ALJ’s failure to 14 || properly consider the mother’s lay witness testimonial evidence was harmless error. 15 16 CONCLUSION AND ORDER 17 For the foregoing reasons, plaintiff's motion for summary judgment is DENIED, 18 Commissioner’s cross-motion for summary judgment is GRANTED, and it is hereby 19 |} ORDERED that Judgment be entered affirming the decision of the Commissioner and 20 || dismissing this action with prejudice.

22 Dated: March 2, 2020 NW Wy 23 ROBERTN.BLOCK. 24 United States Magistrate Judge 25 26 27 28