Smith v. Berryhill

          OPINION AND ORDER

          Michael McShane United States District Judge

         Plaintiff Laura Ann Smith (“Smith”) seeks judicial review of the Commissioner's decision denying her applications for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“the Act”). This court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3). Because the Commissioner's decision is based on proper legal standards and supported by substantial evidence, the decision is AFFIRMED.

         BACKGROUND

         Smith filed her application on May 15, 2012, alleging disability as of May 1, 2011. Tr. 106, 226.^[1] After the Commissioner denied the application initially and upon reconsideration, Smith requested a hearing before an administrative law judge (“ALJ”), which was held on June 24, 2014. Tr. 57-93. At the hearing, the ALJ determined that a consultative psychiatric examination was needed before a decision could be made, and following the examination, a supplemental hearing was convened on May 6, 2015. Tr. 38-52. On May 12, 2015, ALJ Riley J. Atkins issued a written decision finding Smith not disabled. Tr. 12-29. On August 12, 2016, the Appeals Council denied Smith's subsequent request for review, so the ALJ's decision became the final decision of the Commissioner. Tr. 1-3. This appeal followed.

         STANDARD OF REVIEW

         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 of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). “Substantial evidence is ‘more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine whether substantial evidence exists, I review the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989). “If the evidence can reasonably support either affirming or reversing, ‘the reviewing court may not substitute its judgment' for that of the Commissioner.” Gutierrez v. Comm'r of Soc. Sec. Admin., 740 F.3d 519, 523 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 1996)).

         DISCUSSION

         A claimant is disabled if he or she is unable to “engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C. § 423(d)(1)(A). The Social Security Administration (“SSA”) utilizes a five-step sequential evaluation to determine disability. 20 C.F.R. §§ 404.1520; 416.920 (2012). The initial burden of proof rests upon the claimant to meet the first four steps. If a claimant satisfies his or her burden with respect to the first four steps, the burden then shifts to the Commissioner for step five. 20 C.F.R. § 404.1520. At step five, the Commissioner must demonstrate the claimant is capable of making an adjustment to other work after considering the claimant's residual functional capacity (“RFC”), age, education, and work experience. Id. If the Commissioner fails to meet this burden, the claimant is considered disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the Commissioner proves the claimant is able to perform other work existing in significant numbers in the national economy, the claimant is found not disabled. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001).

         At step two, the ALJ concluded that Smith had the following severe impairments: fibromyalgia; status post bilateral knee replacement; “a condition described [as] bipolar disorder”; and anxiety. Tr. 14. Between steps three and four, the ALJ assessed Smith's RFC. He determined Smith retains the capacity to perform light work, with the following caveats: she should avoid concentrated exposure to severe workplace hazards (i.e. working around heights or around machinery with moving parts); she could sustain concentration, persistence, and pace for simple routine repetitive tasks of 1-3 steps, she might be able to engage in more complex tasks on an occasional basis, but could not sustain more complex work; she should not be required to work with the public on more than an occasional or infrequent basis; and she can engage in brief, routine interactions with coworkers and supervisors. Tr. 17. At step four, the ALJ found Smith could not perform any past relevant work. Tr. 27. At step five, based on the testimony of a vocational expert (“VE”), the ALJ concluded that Smith could perform jobs that exist in significant numbers in the national economy, including small products assembler and price marker. Tr. 28. Accordingly, the ALJ found Smith not disabled. Tr. 28-29.

         Smith contends the ALJ: (1) erroneously discredited her symptom testimony; (2) erroneously discredited the opinions of treating and examining physicians; (3) failed to incorporate the testimony of lay witnesses; and (4) failed to identify jobs consistent with Smith's RFC at step five.

         I. Credibility Analysis

         Smith argues the ALJ erred by rejecting her subjective symptom testimony. An ALJ is not “required to believe every allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).” Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.1989)). The ALJ “may consider a range of factors in assessing credibility.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014). These factors can include “ordinary techniques of credibility evaluation, ” id., as well as:

(1) whether the claimant engages in daily activities inconsistent with the alleged symptoms; (2) whether the claimant takes medication or undergoes other treatment for the symptoms; (3) whether the claimant fails to follow, without adequate explanation, a prescribed course of treatment; and (4) whether the alleged symptoms are consistent with the medical evidence.

Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir.2007). However, a negative credibility finding made solely because the claimant's symptom testimony “is not substantiated affirmatively by objective medical evidence” is legally insufficient. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Nonetheless, the ALJ's credibility finding may be upheld even if not all of the ...