Pham v. Berryhill

Cross MOTION for Summary Judgment

S.D. Cal.May 12, 2017

1 Notice of MSJ; 3:15-cv-02107-BAS-DHB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LAURA E. DUFFY United States Attorney DEBORAH LEE STACHEL Regional Chief Counsel, Region IX Social Security Administration MICHAEL K. MARRIOTT, CSBN 280890 Special Assistant United States Attorney 160 Spear Street, Suite 800 San Francisco, California 94105 Telephone: (415) 977-8985 Facsimile: (415) 744-0134 E-Mail: Michael.Marriott@ssa.gov Attorneys for Defendant UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA SAN DIEGO DIVISION ROSIE D. PHAM, ) ) Case No. 3:15-cv-02107-BAS-DHB Plaintiff, ) ) NOTICE OF CROSS MOTION AND vs. ) CROSS MOTION FOR SUMMARY ) JUDGMENT AND OPPOSITION TO NANCY A. BERRYHILL, ) PLAINTIFF’S MOTION FOR SUMMARY Acting Commissioner of ) JUDGMENT Social Security, ) ) Defendant ) ____________________________) Case 3:15-cv-02107-BAS-DHB Document 30 Filed 05/12/17 PageID.522 Page 1 of 2 2 Notice of MSJ; 3:15-cv-02107-BAS-DHB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO: PLAINTIFF AND HER ATTORNEY OF RECORD Steven G. Rosales Law Offices of Lawrence D. Rohlfing 12631 East Imperial Highway, Suite C-115 Santa Fe Springs, CA 90670 PLEASE TAKE NOTICE that Defendant, Nancy A. Berryhill, Acting Commissioner of Social Security, through his attorneys of record, Laura E. Duffy, United States Attorney, Thomas C. Stahl, Assistant U.S. Attorney, Chief, Civil Division, and Michael K. Marriott, Special Assistant United States Attorney, will bring on her Cross-Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. This motion is based upon the accompanying memorandum of points and authorities and the files and records of this case. Respectfully submitted, Date: May 12, 2017 LAURA E. DUFFY United States Attorney DEBORAH LEE STACHEL Regional Chief Counsel, Region IX Social Security Administration By: /s/ Michael K. Marriott MICHAEL K. MARRIOTT Special Assistant U.S. Attorney Attorneys for Defendant Nancy A. Berryhill Acting Commissioner of Social Security Case 3:15-cv-02107-BAS-DHB Document 30 Filed 05/12/17 PageID.523 Page 2 of 2 1 Points and Authorities; 3:15-cv-02107-BAS-DHB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LAURA E. DUFFY United States Attorney DEBORAH LEE STACHEL Regional Chief Counsel, Region IX Social Security Administration MICHAEL K. MARRIOTT, CSBN 280890 Special Assistant United States Attorney 160 Spear Street, Suite 800 San Francisco, California 94105 Telephone: (415) 977-8985 Facsimile: (415) 744-0134 E-Mail: Michael.Marriott@ssa.gov Attorneys for Defendant UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA SAN DIEGO DIVISION ROSIE D. PHAM, ) ) Case No. 3:15-cv-02107-BAS-DHB Plaintiff, ) ) MEMORANDUM OF POINTS AND vs. ) AUTHORITIES IN SUPPORT OF ) DEFENDANT’S MOTION FOR NANCY A. BERRYHILL, ) SUMMARY JUDGMENT AND Acting Commissioner of ) OPPOSITION TO PLAINTIFF’S MOTION Social Security, ) FOR SUMMARY JUDGMENT ) Defendant ) ____________________________) Case 3:15-cv-02107-BAS-DHB Document 30-1 Filed 05/12/17 PageID.524 Page 1 of 12 2 Points and Authorities; 3:15-cv-02107-BAS-DHB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. STATEMENT OF THE CASE On May 10, 2011, Plaintiff applied for Title II Disability Insurance Benefits and Title XVI Supplemental Security Income payments, alleging in both applications disability beginning March 1, 2011 (AR 148-57, 158-66). The agency denied Plaintiff’s applications both initially and upon reconsideration (AR 78-83, 86-91). Plaintiff then requested and attended a hearing before an administrative law judge (ALJ) (AR 23-40). On June 13, 2014, the ALJ found that Plaintiff remained capable of performing her past relevant work as a cashier, and therefore was not disabled within meaning of the Social Security Act (AR 10-17). On July 23, 2015, the Appeals Council denied review of the ALJ’s decision, making that decision the final decision of the Commissioner (AR 1-8). On September 22, 2015, Plaintiff commenced this action pursuant to 42 U.S.C. §§ 405(g), 1383(c). II. STATEMENT OF FACTS The Commissioner submits that the ALJ sufficiently summarized the evidence of record (AR 10-17). Where specific facts serve to illustrate or illuminate an issue, they are discussed in the Argument section below. III. ALJ’S FINDINGS In making his findings, the ALJ conducted the five-step sequential analysis set forth in 20 C.F.R. § 404.1520 (Title II) and 20 C.F.R. § 416.920 (Title XVI). First, the ALJ found that Plaintiff met the insured status requirement through September 30, 2016, and had not engaged in substantial gainful activity since the alleged onset date of March 1, 2011 (AR 12) (step one). The ALJ then determined that Plaintiff had the severe impairments of left pontine mass status post craniectomy and debulking surgery (AR 12) (step two). However, none of her Case 3:15-cv-02107-BAS-DHB Document 30-1 Filed 05/12/17 PageID.525 Page 2 of 12 3 Points and Authorities; 3:15-cv-02107-BAS-DHB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 impairments or combination thereof met or medically equaled any listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1 (step three) (AR 13). The ALJ determined that Plaintiff retained the residual functional capacity (RFC) to perform the full range of medium work as defined in 20 C.F.R. § 404.1567(c) and 416.967(c) (AR 13). Applying this RFC, the ALJ found that Plaintiff remained capable of performing her past relevant work as a cashier (AR 16) (step four). The ALJ concluded that Plaintiff was therefore not disabled within meaning of the Social Security Act (AR 17). IV. ISSUES The general issue before this Court is whether the final decision of the Commissioner is supported by substantial evidence and free of reversible legal error. The Commissioner addresses specific contentions raised by Plaintiff in the Argument section below. V. STANDARD OF REVIEW Pursuant to 42 U.S.C. § 405(g), the Commissioner’s findings “as to any fact, if supported by substantial evidence, shall be conclusive.” Accordingly, the district court “properly affirms the Commissioner’s decision denying benefits if it is supported by substantial evidence and based on the application of correct legal standards.” Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) (citation omitted). Substantial evidence is more than a scintilla but less than a preponderance. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). It is relevant evidence a reasonable person might accept as adequate to support a conclusion considering the record as a whole. Id. “Where evidence is susceptible to more than one rational interpretation, it is the ALJ’s conclusion that must be Case 3:15-cv-02107-BAS-DHB Document 30-1 Filed 05/12/17 PageID.526 Page 3 of 12 4 Points and Authorities; 3:15-cv-02107-BAS-DHB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 upheld.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995)). VI. ARGUMENT A. Substantial Evidence Supports the ALJ’s Adverse Credibility Finding The ALJ appropriately found Plaintiff’s testimony not fully credible. Congress expressly prohibits granting disability benefits based on a claimant’s subjective complaints. See 42 U.S.C. § 423(d)(5)(A) (“An individual’s statement as to pain or other symptoms shall not alone be conclusive evidence of disability”); 20 C.F.R. §§ 404.1529(a), 416.929(a) (an ALJ will consider all of a claimant’s statements about symptoms including pain, but statements about pain or other symptoms “will not alone establish” claimant’s disability). “An ALJ cannot be required to believe every allegation of [disability], or else disability benefits would be available for the asking, a result plainly contrary to [the Social Security Act].” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). An ALJ is, however, required to make specific credibility findings. See Social Security Ruling (SSR) 96-7p (credibility finding “must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual’s statements and the reasons for that weight”). An ALJ’s credibility finding must be properly supported by the record and sufficiently specific to ensure a reviewing court that the ALJ did not “arbitrarily discredit” a claimant’s subjective testimony. Thomas v. Barnhart, 278 F.3d 948, 958 (9th Cir. 2002) (citation omitted); Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991) (en banc).1 1 The Ninth Circuit has sometimes employed a “clear and convincing reasons” standard when reviewing an ALJ’s decision to discredit a claimant’s allegations. See, e.g., Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014); Chaudhry v. Case 3:15-cv-02107-BAS-DHB Document 30-1 Filed 05/12/17 PageID.527 Page 4 of 12 5 Points and Authorities; 3:15-cv-02107-BAS-DHB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The ALJ concluded that Plaintiff’s “allegations concerning the intensity, persistence, and limiting effects of her symptoms are less than full credible” (AR 14). The ALJ first pointed out that “although the medical record showed evidence of brain tumor, many of claimant’s symptoms subsided after surgery” (AR 14). Indeed, in the spring of 2011, Plaintiff went to the hospital complaining of nausea, vomiting, and exhibiting some slurred speech (AR 253). On May 13, 2011, Plaintiff underwent successful surgery to debulk the tumorous mass (AR 263-66), tolerating the procedure well and was stable for home discharge after nine days (AR 254). After the procedure, Plaintiff had very little treatment records and minimal documented abnormalities, supporting the ALJ’s finding that the brain surgery procedure was successful in resolving her impairment. Fundamentally, “[i]mpairments that can be controlled effectively with medication are not disabling for the purpose of determining eligibility for SSI benefits.” Warre v. Comm’r of Soc. Sec., 439 F.3d 1001, 1006 (9th Cir. 2006). The resolution of Plaintiff’s brain tumor through successful surgery is especially probative when the records shows that, prior to this condition, she was “a previously healthy” individual who only began to have symptoms no earlier Astrue, 688 F.3d 661, 670-71 (9th Cir. 2012). The Commissioner maintains that this standard is inconsistent with the deferential substantial evidence standard set forth in 42 U.S.C. § 405(g) and with agency regulations and rulings specifying the rationale its adjudicators should provide in support of their findings. See, e.g., Social Security Ruling 96-7p. Nevertheless, the Commissioner acknowledges that the clear and convincing reasons standard is part of this Circuit’s law and that the district courts are bound to follow Circuit precedent. Because the ALJ’s reasons suffice under any standard, this disagreement need not be resolved in this case, and the Commissioner states her objection to preserve the issue for any future appeal. Case 3:15-cv-02107-BAS-DHB Document 30-1 Filed 05/12/17 PageID.528 Page 5 of 12 6 Points and Authorities; 3:15-cv-02107-BAS-DHB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 than February 2011 (AR 286). With her successful surgery in May 2011, Plaintiff did not come close to meeting the durational requirement for a disabling impairment. See 42 U.S.C. § 423(d)(1)(A) (defining disability as the “inability to engage in any substantial gainful activity . . . which has lasted or can be expected to last for a continuous period of not less than 12 months”). Notably, Plaintiff did not allege any other disabling medical conditions in her application (AR 204). The ALJ reasonably found Plaintiff’s credibility diminished because the medical evidence showed the successful resolution of her impairment (AR 14). See Celaya v. Halter, 332 F.3d 1177, 1181 (9th Cir. 2003) (pain complaints properly rejected where the ALJ “reasonably noted” evidence that pain had come under control). Plaintiff’s credibility is further diminished because she “had not required significant treatment since the surgery” (AR 14). See AR 373-76, 400-02 (sparse treatment records ending February 25, 2012, with each visit noted on a largely preprinted half-page form). There appear to be no treatment records whatsoever after February 2012, despite the ALJ holding the administrative hearing and issuing his decision in May and June of 2014, respectively (AR 17, 23). At the administrative hearing, Plaintiff, through her attorney representative, informed the ALJ that there was additional exhibits or evidence to submit (AR 26). This gap of more than two years with no medical treatment strongly supports the ALJ’s finding that Plaintiff’s surgery was successful and significantly undercuts Plaintiff’s allegations of continuing disabling symptoms. See Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (ALJ may consider an unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment). Case 3:15-cv-02107-BAS-DHB Document 30-1 Filed 05/12/17 PageID.529 Page 6 of 12 7 Points and Authorities; 3:15-cv-02107-BAS-DHB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The ALJ also pointed out that Plaintiff “admitted she was able to perform activities that were within the residual functional capacity” (AR 14). Specifically, Plaintiff “admitted she was able to cook, garden, and do laundry . . . pick up clothe and sweep the floor” (AR 14). See AR 225-26 (Exertion Questionnaire). See Thomas, 278 F.3d at 958-59 (“The ALJ also found that [the claimant] was able to perform various household chores such as cooking, laundry, washing dishes, and shopping,” which suggested the ability to perform some work activity). Finally, the ALJ also reasoned that the “medical record does not support the severity of symptoms alleged by the claimant” (AR 14). Plaintiff underwent a consultative examination with Dr. Philip Wirganowicz, who found almost no abnormalities upon examination except alleged weakness “associated with giving away that appears volitional in nature” (AR 396). The doctor felt that Plaintiff could perform medium work activity (AR 396). This conclusion is shared by State agency physician Dr. R. Jacobs (AR 58-59). These medical opinions further support the ALJ’s adverse credibility finding. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008) (“In addition, the medical evidence, including Dr. Eather’s report and Dr. Neville’s report—which both found [claimant] could perform a limited range of work—support the ALJ’s credibility determination”). Plaintiff disagrees with the ALJ’s adverse credibility findings, but such mere disagreement does not negate the rationality of the ALJ’s conclusions and cannot create reversible legal error. See Batson v. Comm’r of Soc. Sec., 359 F.3d 1190, 1196 (9th Cir. 2004) (“When evidence reasonably supports either confirming or reversing the ALJ’s decision, we may not substitute our judgment for that of the ALJ”). As explained above, the ALJ provided sufficient reasons supported by Case 3:15-cv-02107-BAS-DHB Document 30-1 Filed 05/12/17 PageID.530 Page 7 of 12 8 Points and Authorities; 3:15-cv-02107-BAS-DHB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 substantial evidence explaining his adverse credibility findings adequate to ensure that he did not “arbitrarily discredit” Plaintiff’s complaints. Thomas, 278 F.3d at 958. Plaintiff’s argument is without merit. B. Should this Court find Reversible Legal Error, Remand for Further Administrative Proceedings is the Only Appropriate Remedy Plaintiff ask this Court to credit her testimony as a matter of law. Pl.’s MSJ at 12-13. Applying the credit as true rule and remanding for immediate payment of benefits is not an appropriate remedy based on the facts of this case. Should the Court find that the ALJ’s decision was not supported by substantial evidence, the proper remedy is a remand for further administrative proceedings. As Plaintiff notes, Ninth Circuit case law allows courts in some circumstances to credit evidence as “true” and award benefits based on that evidence if it finds that the agency did not properly evaluate that evidence in the first instance. As a matter of record, the Commissioner disagrees with the credit-as-true rule. See Vasquez v. Astrue, 572 F.3d 586, 601 (9th Cir. 2009) (amended opinion) (O’Scannlain, J., dissenting). But, regardless of its validity, the Ninth Circuit has clarified that the credit-as-true rule only justifies an award of benefits in narrow circumstances. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098-1100 (9th Cir. 2014). Treichler holds that the “ordinary remand rule”––providing that remand for further proceedings is “the proper course, except in rare circumstances,” when the court does not affirm the agency’s decision––applies to Social Security cases. Id. at 1098-1110. Treichler further clarifies that the credit-as-true rule does not permit courts to simply “credit” evidence the ALJ did not properly address and award Case 3:15-cv-02107-BAS-DHB Document 30-1 Filed 05/12/17 PageID.531 Page 8 of 12 9 Points and Authorities; 3:15-cv-02107-BAS-DHB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 benefits without first assessing whether further administrative proceedings would be useful and whether there are outstanding issues that must be resolved before a finding of disability may ensue. Id. at 1105; see also id. at 1101 (“Administrative proceedings are generally useful where the record has not been fully developed, there is a need to resolve conflicts and ambiguities, or the presentation of further evidence may well prove enlightening in light of the passage of time.” (internal quotation marks, citations, brackets, and ellipsis omitted)). The Ninth Circuit has further clarified that courts must “remand for further proceedings when, even though all conditions of the credit-as-true rule are satisfied, an evaluation of the record as a whole creates serious doubt that a claimant is, in fact, disabled.” Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014); see also Burrell v. Colvin, 775 F.3d 1133, 1140-42 (9th Cir. 2014). Here, Plaintiff only raises a challenge to the ALJ’s credibility determination, but concedes the ALJ’s evaluation of the medical evidence. This alone creates “serious doubt” that Plaintiff is actually disabled. Without supporting medical evidence, Plaintiff would be left with only her subjective allegations, which Congress has held to be insufficient basis for a finding of disability. 42 U.S.C. § 423(d)(5)(A) (“An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Commissioner of Social Security may require”). Only sufficient evidence of actual disability justifies an award of benefits—a standard that is emphatically not met on this record. Strauss v. Comm’r of the Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011) (“A claimant is not entitled to benefits under the statute unless the claimant is, in fact, disabled, no matter how egregious the ALJ’s errors may be”). Case 3:15-cv-02107-BAS-DHB Document 30-1 Filed 05/12/17 PageID.532 Page 9 of 12 10 Points and Authorities; 3:15-cv-02107-BAS-DHB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Moreover, Plaintiff had no treatment records from March 2012 through the date of the ALJ’s decision June 13, 2014—a period of more than two years. Plaintiff has completely failed to satisfy her burden of proof of providing medical evidence showing actual disability. See Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995) (“claimant bears the burden of proving she is disabled” and “must produce complete and detailed objective medical reports of her condition from licensed medical professionals”). This is more “serious doubt” that makes remand for payment of benefits a complete improper remedy. VII. CONCLUSION The Commissioner respectfully requests that this Court uphold the Commissioner’s final decision, as it is supported by substantial evidence and free of reversible legal error. 42 U.S.C. § 405(g). Respectfully submitted, Date: May 12, 2017 LAURA E. DUFFY United States Attorney By: /s/ Michael K. Marriott MICHAEL K. MARRIOTT Special Assistant U.S. Attorney Attorneys for Defendant Nancy A. Berryhill Acting Commissioner of Social Security Of Counsel Jeffrey Chen Assistant Regional Counsel Social Security Administration Case 3:15-cv-02107-BAS-DHB Document 30-1 Filed 05/12/17 PageID.533 Page 10 of 12 11 Points and Authorities; 3:15-cv-02107-BAS-DHB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ROSIE D. PHAM, ) Case No. 3:15-cv-02107-BAS-DHB ) Plaintiff, ) ) CERTIFICATE OF SERVICE v. ) BY ELECTRONIC FILING ) NANCY A. BERRYHILL, ) Acting Commissioner of Social Security, ) ) Defendant. ) ____________________________________) IT IS HEREBY CERTIFIED THAT: I, the undersigned, am a citizen of the United States and am at least eighteen years of age. My business address is 160 Spear Street, Suite 800, San Francisco, California 94105. I am not a party to the above-entitled action. I have caused service of: NOTICE OF MOTION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT on the following parties by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which electronically notifies them: Steven G. Rosales Law Offices of Lawrence D. Rohlfing 12631 East Imperial Highway Case 3:15-cv-02107-BAS-DHB Document 30-1 Filed 05/12/17 PageID.534 Page 11 of 12 12 Points and Authorities; 3:15-cv-02107-BAS-DHB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Suite C-115 Santa Fe Springs, CA 90670 (562)868-5886 Fax: (562)868-5491 Email: staven.rosales@rohlfinglaw.com I declare under penalty of perjury that the foregoing is true and correct. Executed on May 12, 2017 /s/ Michael K. Marriott______ MICHAEL K. MARRIOTT Special Assistant U.S. Attorney E-Mail: Michael.Marriott@ssa.gov Case 3:15-cv-02107-BAS-DHB Document 30-1 Filed 05/12/17 PageID.535 Page 12 of 12