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Molina v. Colvin

United States District Court, D. Oregon

March 10, 2017

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


          THOMAS M. COFFIN, United States Magistrate Judge

         Plaintiff Elvira Medina Molina seeks judicial review of the Commissioner's decision denying her application for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act. This court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3). All parties have consented to allow a Magistrate Judge to enter final orders and judgments in this case in accordance with Fed.R.Civ.P. 73 and 28 U.S.C. § 636(c). Because the Commissioner's decision is based on proper legal standards and supported by substantial evidence, the Commissioner's decision is AFFIRMED.


         Plaintiff protectively filed an application for DIB and SSI on December 5, 2011. Tr. 208-14, 215-24, 234. Plaintiff was insured under Title II through September 30, 2013. Tr. 234. Following a denial of benefits, plaintiff requested a hearing before an administrative law judge ("ALJ"). On July 25, 2014, an ALJ determined plaintiff was not disabled. Tr. 10-26. Plaintiff appealed that decision to the Appeals Council. On November 20, 2015, the Appeals Council declined to grant plaintiffs request for review, resulting in the ALJ's decision becoming the final order of the Agency. Tr. 1-5. This appeal followed.


         The reviewing court shall affirm the Commissioner's decision if the decision is based on proper legal standards and the legal findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations omitted). In reviewing the Commissioner's alleged errors, this court must weigh "both the evidence that supports and detracts from the [Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

         When the evidence before the ALJ is subject to more than one rational interpretation, we must defer to the ALJ's conclusion. Batson, 359 F.3d at 1198 (citing Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995)). A reviewing court, however, "cannot affirm the Commissioner's decision on a ground that the Administration did not invoke in making its decision." Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (citation omitted). Finally, a court may not reverse an ALJ's decision on account of an error that is harmless. Id. at 1055-56. "[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination." Shinseki v. Sanders, 556 U.S. 396, 409 (2009).


         Plaintiffs argues that the ALJ erred by improperly: (1) rejecting her testimony; (2) rejecting the opinions of her treating nurse and chiropractor; (3) rejecting lay witness testimony; and (4) finding that she could return to her past relevant work at step four of the sequential analysis. Pl.'s Br. 9-20. I. Plaintiffs Testimony The ALJ found plaintiffs subjective symptom statements "not entirely credible" because "the objective evidence, when considered as a whole, is not consistent with [plaintiffs] allegations of disabling pain." Tr. 22. The ALJ made several findings in support of her conclusion.

         First, the ALJ found that plaintiffs statements that "she is unable to work due to her back, neck, and hip" pain were inconsistent with her "mild" and "normal" medical diagnoses relating to her neck and back pain and lower extremities. Id. The ALJ specifically noted that in August 2012, a cervical spine x-ray revealed "mild" degenerative disk disease and a "mild" degree of neutral foraminal narrowing at plaintiffs C-C6 vertebra. Id. The ALJ also noted that plaintiffs lumbar spine x-rays from the same time period revealed "mild" dextroconvex scoliosis. Id. The ALJ noted that in September 2012, plaintiff reported no lower extremity weakness and during this visit, as well as during a return visit in December 2012, an examination of her back revealed "normal" results with "normal" reflexes, gait, and strength. Id. The ALJ noted plaintiffs MRI results from February 2013 that revealed some disk bulging, but only "mild" narrowing of the neutral foramina. Id. at 23. Finally, the ALJ noted one of plaintiffs MRIs from December 2013 that "showed [her] lumbar spine was felt to be unremarkable other than mild dural ectasia, " and a report from April 2014, where plaintiff "reported her body-wide aches were improved" and "reported they were sometimes bad at night, but she walked and they got better." Id.

         The ALJ next found plaintiffs subjective symptom statements not credible because her treatment was "minimal and essentially routine and conservative." Id. The ALJ specifically noted that there is no evidence that plaintiff has taken any narcotic based or over the counter pain medication "in spite of the allegations of quite limiting pain." Id. The ALJ also noted "significant gaps in [plaintiffs] history of treatment, " including "not receiving treatment for almost a full year after her alleged onset date, " not seeking counseling for her mental impairment until October 2013, "despite being referred to counseling over six months earlier, " and findings from her counselor that once she began counseling, she had made "some progress." Id.

         In addition to referencing inconsistencies between plaintiffs subjective symptom statements, the treatment she sought, and the objective findings in the medical records, the ALJ also noted that plaintiffs reported activities of daily living ("ADL's") "are not limited to the extent one would expect, given her complaints of disabling symptoms and limitations." The ALJ also noted that plaintiff provided inconsistent statements regarding her ADL's at various times. Id. The ALJ specifically noted that plaintiff is "functionally independent concerning her personal care needs" and can grocery shop and walk the six blocks to the store, go out alone and use public transportation, prepare meals, do laundry, dishes, and light cleaning, and help attend to her children. Id. The ALJ also noted that despite initially denying babysitting her grandchildren at the hearing, plaintiff later admitted that she picks up her seven-year-old granddaughter from school and watches her for about two hours at times until her parents pick her up Id.

         The ALJ noted that in addition to these inconsistent statements, "the record suggests even greater involvement" by plaintiff in caring for her grandchildren, such as reports from January, February, and March 2014, where plaintiff reported that her grandchildren, ages 7 and 11, live with her and she feeds and cares for them because the children's parents were "not caring for them." Id. The ALJ also noted that in April 2014, plaintiff reported she cared for her grandchildren "the majority of the time because she does not work." Id. The ALJ noted that the Dictionary of Occupational Titles[1] ("DOT") "defines the job of a child care worker (DOT 301.677-010) as a medium unskilled job" and found that although plaintiffs child care tasks may not rise to this medium level of exertion, "they do suggest she should be able to perform some sedentary work activity." Id.

         The ALJ also noted internal inconsistency in plaintiffs statements regarding her ability to travel. Id. Specifically, the ALJ noted that although plaintiff "initially denied traveling since her alleged onset date, " after further questioning at the hearing, she admitted taking trips to Mexico and California. Id. at 22-23. The ALJ found that "although traveling and a disability are not mutually exclusive, [plaintiffs] decision to go on these trips tends to support a finding that she could do some sedentary unskilled work activity." Id.

         Finally, in addition to noting inconsistencies between plaintiffs symptom statements and the medical records and her ADL's, and the internal inconsistencies in the statements plaintiff made regarding her ability to travel and care for her grandchildren, the ALJ also noted that plaintiff "stopped working due to a business-related layoff when the company relocated rather than because of her allegedly disabling impairments." Id.

         Plaintiff argues that the ALJ failed to articulate a clear and convincing reason, supported by substantial evidence, for rejecting her subjective symptom statements concerning the extent and severity of her impairments and also challenged several of the reasons proffered by the ALJ for finding her not credible. Pl.'s Br. 13-16.

         First, plaintiff argues that she is unable to take NSAID medications due to her chronic kidney disease and because many narcotic pain medications contain NSAIDs, her inability to "take certain pain medications as a result of one of her other impairments is not an indication that her pain is not as severe as alleged." Id. at 14.

         Second, plaintiff argues that her conservative treatment for her back was not a valid reason to discredit her symptom statements because: (1) conservative treatment is what her doctors recommended; (2) her spinal condition cannot be repaired with surgery; and (3) she had gaps in her medical treatment because she could not afford treatment without insurance, which she did not obtain until 2014. Id.

         Third, plaintiff argues that her ADL's as cited by the ALJ were not inconsistent with her statements that she is unable to sit, stand, walk, or lift well enough to make it through a typical work day. Id. Plaintiff states that the ALJ's assertion to the contrary was improper because her ADL's, such as watching her grandchildren were not comparable to performing full-time work because her grandchildren were in school most of the day and when they came home from school, they were largely self-sufficient. Id. Plaintiff further asserts that caring for her grandchildren "as described in the record, involved nothing more than making dinner for a 7 and 11 year old and making sure they went to bed on time, " Pl.'s Reply Br. 3, and "making dinner was not something [she] did on a regular basis, " but instead was something she did only when their parents are out of the house. Pl.'s Br. 14.

         Finally, plaintiff argues that although she "left her most recent job because the company moved out of state rather than because of her impairments, " "she was in so much pain while she was still doing that job that she missed 2 days of work each week" and "was able to keep her job for as long as she did only because the employer didn't want to go to the trouble of ...

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