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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

10 11 ) DESTENE MARIE MCMINN, ) Case No. EDCV 19-01063-JEM 12 ) Plaintiff, ) 13 ) MEMORANDUM OPINION AND ORDER v. ) AFFIRMING DECISION OF THE 14 ) COMMISSIONER OF SOCIAL SECURITY

ANDREW M. SAUL, )

15 Commissioner of Social Security, ) ) 16 Defendant. ) ) 17 18 PROCEEDINGS 19 On June 1, 2019, Destene Marie McMinn (“Plaintiff” or “Claimant”) filed a complaint 20 seeking review of the decision by the Commissioner of Social Security (“Commissioner”) 21 denying Plaintiff’s applications for Social Security Disability Insurance benefits and 22 Supplemental Security Income benefits. (Dkt. 1.) The Commissioner filed an Answer on 23 September 26, 2019. (Dkt. 16.) On April 2, 2020, the parties filed a Joint Stipulation (“JS”). 24 (Dkt. 22.) The matter is now ready for decision. 25 Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before this 26 Magistrate Judge. After reviewing the pleadings, transcripts, and administrative record (“AR”), 27 the Court concludes that the Commissioner’s decision must be affirmed and this case 28 1 BACKGROUND 2 Plaintiff is a 52 year-old female who applied for Social Security Disability Insurance 3 benefits on July 1, 2015, and Supplemental Security Income benefits on September 28, 2015, 4 alleging disability beginning December 10, 2013. (AR 15.) The ALJ determined that Plaintiff 5 has not engaged in substantial gainful activity since December 10, 2013, the alleged onset 6 date. (AR 17.) 7 Plaintiff’s claims were denied initially on January 20, 2016, and on reconsideration on 8 March 21, 2016. (AR 15.) Plaintiff filed a timely request for hearing on April 27, 2016. (AR 9 15.) On February 27, 2018, the Administrative Law Judge (“ALJ”) Luke A. Brennan held a 10 video hearing from Albuquerque, New Mexico. (AR 15.) Plaintiff appeared and testified in 11 Moreno Valley, California, and was represented by counsel. (AR 15.) Vocational expert (“VE”) 12 Sonia L. Peterson also appeared and testified at the hearing via telephone. (AR 15.) 13 The ALJ issued an unfavorable decision on June 21, 2018. (AR 15-28.) The Appeals 14 Council denied review on April 9, 2019. (AR 1-3.)

DISPUTED ISSUES

15 16 As reflected in the Joint Stipulation, Plaintiff raises only the following disputed issue as 17 ground for reversal and remand: 18 1. Whether the ALJ properly considered McMinn’s testimony.

STANDARD OF REVIEW

19 20 Under 42 U.S.C. § 405(g), this Court reviews the ALJ’s decision to determine whether 21 the ALJ’s findings are supported by substantial evidence and free of legal error. Smolen v. 22 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); see also DeLorme v. Sullivan, 924 F.2d 841, 846 23 (9th Cir. 1991) (ALJ’s disability determination must be supported by substantial evidence and 24 based on the proper legal standards). 25 Substantial evidence means “‘more than a mere scintilla,’ but less than a 26 preponderance.” Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting Richardson v. 27 Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is “such relevant evidence as a 28 1 reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 2 401 (internal quotation marks and citation omitted). 3 This Court must review the record as a whole and consider adverse as well as 4 supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Where 5 evidence is susceptible to more than one rational interpretation, the ALJ’s decision must be 6 upheld. Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). 7 “However, a reviewing court must consider the entire record as a whole and may not affirm 8 simply by isolating a ‘specific quantum of supporting evidence.’” Robbins, 466 F.3d at 882 9 (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)); see also Orn v. Astrue, 495 10 F.3d 625, 630 (9th Cir. 2007).

THE SEQUENTIAL EVALUATION

11 12 The Social Security Act defines disability as the “inability to engage in any substantial 13 gainful activity by reason of any medically determinable physical or mental impairment which 14 can be expected to result in death or . . . can be expected to last for a continuous period of not 15 less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Commissioner has 16 established a five-step sequential process to determine whether a claimant is disabled. 20 17 C.F.R. §§ 404.1520, 416.920. 18 The first step is to determine whether the claimant is presently engaging in substantial 19 gainful activity. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). If the claimant is engaging 20 in substantial gainful activity, disability benefits will be denied. Bowen v. Yuckert, 482 U.S. 137, 21 140 (1987). Second, the ALJ must determine whether the claimant has a severe impairment or 22 combination of impairments. Parra, 481 F.3d at 746. An impairment is not severe if it does not 23 significantly limit the claimant’s ability to work. Smolen, 80 F.3d at 1290. Third, the ALJ must 24 determine whether the impairment is listed, or equivalent to an impairment listed, in 20 C.F.R. 25 Pt. 404, Subpt. P, Appendix I of the regulations. Parra, 481 F.3d at 746. If the impairment 26 meets or equals one of the listed impairments, the claimant is presumptively disabled. Bowen, 27 482 U.S. at 141. Fourth, the ALJ must determine whether the impairment prevents the 28 claimant from doing past relevant work. Pinto v. Massanari, 249 F.3d 840, 844-45 (9th Cir. 1 2001). Before making the step four determination, the ALJ first must determine the claimant’s 2 residual functional capacity (“RFC”). 20 C.F.R. § 416.920(e). The RFC is “the most [one] can 3 still do despite [his or her] limitations” and represents an assessment “based on all the relevant 4 evidence.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The RFC must consider all of the 5 claimant’s impairments, including those that are not severe. 20 C.F.R. §§ 416.920(e), 6 416.945(a)(2); Social Security Ruling (“SSR”) 96-8p. 7 If the claimant cannot perform his or her past relevant work or has no past relevant work, 8 the ALJ proceeds to the fifth step and must determine whether the impairment prevents the 9 claimant from performing any other substantial gainful activity. Moore v. Apfel, 216 F.3d 864, 10 869 (9th Cir. 2000). The claimant bears the burden of proving steps one through four, 11 consistent with the general rule that at all times the burden is on the claimant to establish his or 12 her entitlement to benefits. Parra, 481 F.3d at 746. Once this prima facie case is established 13 by the claimant, the burden shifts to the Commissioner to show that the claimant may perform 14 other gainful activity. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). To support 15 a finding that a claimant is not disabled at step five, the Commissioner must provide evidence 16 demonstrating that other work exists in significant numbers in the national economy that the 17 claimant can do, given his or her RFC, age, education, and work experience. 20 C.F.R. 18 § 416.912(g). If the Commissioner cannot meet this burden, then the claimant is disabled and 19 entitled to benefits. Id.

THE ALJ DECISION

20 21 In this case, the ALJ determined at step one of the sequential process that Plaintiff has 22 not engaged in substantial gainful activity since December 10, 2013, the alleged onset date. 23 (AR 15.) 24 At step two, the ALJ determined that Plaintiff has the following medically determinable 25 severe impairments: degenerative disc disease of the cervical spine status post fusion, 26 degenerative disc disease of the lumbar spine, and status post right shoulder surgery. (AR 18- 27 20.) 28 1 At step three, the ALJ determined that Plaintiff does not have an impairment or 2 combination of impairments that meets or medically equals the severity of one of the listed 3 impairments. (AR 20.) 4 The ALJ then found that Plaintiff has the RFC to perform a light work as defined in 20 5 CFR §§ 404.1567(b) and 416.967(b) with the following limitations: 6 Claimant can lift and carry twenty pounds occasionally and ten pounds frequently. 7 Claimant can stand or walk for six hours in an eight-hour workday, and she can sit 8 for six hours in an eight-hour workday. Claimant can never climb ladders, ropes, 9 or scaffolds, but she can occasionally climb ramps and stairs. Claimant can 10 occasionally kneel, balance, stoop, crouch, and crawl, and she can frequently 11 reach in any direction with the bilateral upper extremities. 12 (AR 20-26.) In determining the above RFC, the ALJ made a determination that Plaintiff’s 13 subjective symptom allegations were “not entirely consistent” with the medical evidence and 14 other evidence of record. (AR 22.) 15 At step four, the ALJ found that Plaintiff is not able to perform her past relevant work as 16 an administrative clerk. (AR 26.) The ALJ, however, also found at step five that, considering 17 Claimant’s age, education, work experience, and RFC, there are jobs that exist in significant 18 numbers in the national economy that Claimant can perform, including the jobs of office helper, 19 photocopy machine operator, and price marker. (AR 26-27.) 20 Consequently, the ALJ found that Claimant is not disabled within the meaning of the 21 Social Security Act. (AR 27-28.)

DISCUSSION

22 23 The ALJ decision must be affirmed. The ALJ’s RFC is supported by substantial 24 evidence.

I. THE ALJ PROPERLY DISCOUNTED PLAINTIFF’S

25 SUBJECTIVE SYMPTOM ALLEGATIONS 26 Plaintiff contends that the ALJ erred in discounting Plaintiff’s subjective symptom 27 allegations. The Court disagrees. 28 1 A. Relevant Federal Law 2 The ALJ’s RFC is not a medical determination but an administrative finding or legal 3 decision reserved to the Commissioner based on consideration of all the relevant evidence, 4 including medical evidence, lay witnesses, and subjective symptoms. See SSR 96-5p; 20 5 C.F.R. § 1527(e). In determining a claimant’s RFC, an ALJ must consider all relevant evidence 6 in the record, including medical records, lay evidence, and the effects of symptoms, including 7 pain reasonably attributable to the medical condition. Robbins, 446 F.3d at 883. 8 The test for deciding whether to accept a claimant’s subjective symptom testimony turns 9 on whether the claimant produces medical evidence of an impairment that reasonably could be 10 expected to produce the pain or other symptoms alleged. Bunnell v. Sullivan, 947 F.2d 341, 11 346 (9th Cir. 1991); see also Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998); Smolen, 80 12 F.3d at 1281-82 esp. n.2. The Commissioner may not discredit a claimant’s testimony on the 13 severity of symptoms merely because they are unsupported by objective medical evidence. 14 Reddick, 157 F.3d at 722; Bunnell, 947 F.2d at 343, 345. If the ALJ finds the claimant’s pain 15 testimony not credible, the ALJ “must specifically make findings which support this conclusion.” 16 Bunnell, 947 F.2d at 345. The ALJ must set forth “findings sufficiently specific to permit the 17 court to conclude that the ALJ did not arbitrarily discredit claimant’s testimony.” Thomas v. 18 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002); see also Rollins v. Massanari, 261 F.3d 853, 857 19 (9th Cir. 2001); Bunnell, 947 F.2d at 345-46. Unless there is evidence of malingering, the ALJ 20 can reject the claimant’s testimony about the severity of a claimant’s symptoms only by offering 21 “specific, clear and convincing reasons for doing so.” Smolen, 80 F.3d at 1283-84; see also 22 Reddick, 157 F.3d at 722. The ALJ must identify what testimony is not credible and what 23 evidence discredits the testimony. Reddick, 157 F.3d at 722; Smolen, 80 F.3d at 1284. B. Analysis 24 25 Plaintiff alleges she suffers from depressive disorder, anxiety, obsessive-compulsive 26 disorder, degenerative disc disease of the lumbar spine, and status post right shoulder surgery. 27 (AR 22.) As a result, Plaintiff alleges she experiences pain, does not handle stress well, and 28 cannot work. (AR 22.) The ALJ did find that Plaintiff had the medically determinable severe 1 impairments of degenerative disc disease of the cervical spine status post fusion, degenerative 2 disc disease of the lumbar spine, and status post right shoulder surgery. (AR 18.) 3 Notwithstanding these impairments, the ALJ assessed Plaintiff with a reduced range of light 4 work RFC (AR 20-26) and determined that she could perform work in the national economy. 5 (AR 26-27.) Consequently, the ALJ concluded Plaintiff was not disabled from the alleged onset 6 date of December 10, 2013 (AR 15), through the date of decision on June 21, 2018. (AR 27- 7 28.) 8 In determining Plaintiff’s RFC, the ALJ concluded that Plaintiff’s medically determinable 9 impairments reasonably could be expected to cause the alleged symptoms. (AR 22.) The ALJ, 10 however, also found that Plaintiff’s statements regarding the intensity, persistence, and limiting 11 effects of these symptoms are “not entirely consistent” with the medical evidence and other 12 evidence of record. (AR 22.) Because the ALJ did not make any finding of malingering, he 13 was required to provide clear and convincing reasons supported by substantial evidence for 14 discounting Plaintiff’s subjective symptom allegations. Smolen, 80 F.3d at 1283-84; 15 Tommasetti v. Astrue, 533 F.3d 1035, 1039-40 (9th Cir. 2008). The ALJ did so. 16 1. Objective Medical Evidence 17 The ALJ found that Plaintiff’s subjective symptom allegations were inconsistent with the 18 objective medical evidence. (AR 22, 26.) An ALJ is permitted to consider whether there is a 19 lack of medical evidence to corroborate a claimant’s alleged symptoms so long as it is not the 20 only reason for discounting a claimant’s subjective symptom allegations. Burch v. Barnhart, 21 400 F.3d 676, 680-81 (9th Cir. 2005). Plaintiff underwent spinal fusion surgery in 2008 and 22 right shoulder arthroplasty surgery in August 2014. She improved after both surgeries, 23 “markedly” in the case of her shoulder. Plaintiff, however, does not discuss or even 24 acknowledge her improvement in her symptoms and limitations. In February 2015, Plaintiff had 25 normal coordination and ambulated with normal heel to toe gait, demonstrating no discomfort. 26 (AR 23.) Although her neck had areas of tenderness, her neck range of motion was eighty 27 percent and her upper extremity range of motion was ninety percent of normal. (AR 23.) Her 1 had ninety degrees of internal and external rotation, forty five degrees of abduction and fifty 2 degrees of extension. (AR 23.) 3 In June 2015, Plaintiff’s gait was normal and her cervical spine was tender to palpation. 4 (AR 23.) in August 2015, she complained of right shoulder pain, but her right upper extremity 5 strength was normal and it was not tender to palpation. (AR 23.) In October 2015, an MRI 6 showed mild narrowing of both neural foramina. (AR 24.) In December 2015, Plaintiff had 7 normal shoulder pain symptoms. (AR 24.) 8 In March 2016, Plaintiff’s neck range of motion was eighty percent of normal and her 9 shoulder range of motion was ninety percent of normal. (AR 24.) In August 2016, an MRI of 10 the cervical spine showed mild to moderate narrowing of the left neural foramen. (AR 24.) In 11 July 2017, an MRI of the right shoulder showed no abnormality. (AR 24.) In September 2017, 12 Plaintiff’s neck range of motion was eighty percent of normal and her shoulder range of motion 13 was ninety percent of normal, with negative straight leg raising, intact sensation, and 5/5 14 strength. (AR 24.) 15 State agency reviewing physicians Dr. G. Spellman and Dr. S. Lee both assessed 16 Plaintiff with a reduced range of light work RFC. (AR 24, 80-81, 95-96.) They opined Plaintiff 17 could lift and carry 20 pounds occasionally and 10 pounds frequently. (AR 24.) They further 18 opined that Plaintiff could occasionally climb ramps and stairs. (AR 24.) Dr. Lee opined 19 Plaintiff could perform limited overhead reaching with the right upper extremity. (AR 24.) 20 There is no medical opinion in the record from a treating physician assessing functional 21 limitations greater than the RFC assessed by Dr. Spellman and Dr. Lee, and by the ALJ. 22 Plaintiff does not discuss or address any of the above medical evidence or medical opinion 23 evidence, in particular the evidence of improvement. Plaintiff’s only argument is that her 24 surgeries were non-conservative modes of treatment, but this assertion does not speak to her 25 functional limitations post-surgery and certainly does not establish disability in the face of so 26 much medical evidence to the contrary. The ALJ’s RFC regarding Plaintiff’s musculoskeletal 27 impairments and limitations is supported by substantial evidence. 1 As to Plaintiff’s alleged mental impairments, the ALJ determined that Plaintiff had no 2 more than mild limitations in functioning. (AR 18-19.) The ALJ found Plaintiff’s mental 3 limitations were nonsevere. (AR 19.) The ALJ’s findings were supported by two State agency 4 physicians, Dr. K. Loomis and Dr. B. Moura, who opined Plaintiff had overall mild limitations in 5 social functioning and in maintaining concentration, persistence, and pace. (AR 25, 79, 93, 6 872.) Again, Plaintiff does not address or acknowledge the ALJ’s assessment of Plaintiff’s 7 mental health limitations and symptoms or the opinions of the State agency physicians. The 8 ALJ’s nonsevere mental impairment assessment is supported by substantial evidence. 9 2. Inconsistent Daily Activities 10 The ALJ also found that Plaintiff’s daily activities are inconsistent with her alleged 11 disabling limitations (AR 22, 26), which is a legitimate consideration in evaluating subjective 12 symptom allegations. Bunnell, 947 F.2d at 345-46. Here, Plaintiff washes laundry, cleans 13 counters, drives, shops, pays bills, attends to her personal hygiene, and prepares simple 14 meals. (AR 22.) Plaintiff contends that these activities do not mean she can work a full time 15 job, but they do indicate her symptoms are not as severe as alleged. See Valentine v. Comm’r, 16 574 F.3d 685, 694 (9th Cir. 2009). 17 * * * 18 Plaintiff disagrees with the ALJ’s evaluation of the medical and other evidence of record, 19 but it is the ALJ’s responsibility to resolve conflicts in the medical evidence and ambiguities in 20 the record. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Where the ALJ’s 21 interpretation of the record is reasonable, as it is here, it should not be second-guessed. 22 Rollins, 261 F.3d at 857; Thomas, 278 F.3d at 954 (“Where the evidence is susceptible to 23 more than one rational interpretation, one of which supports the ALJ’s decision, the ALJ’s 24 conclusion must be upheld.”). 25 The ALJ discounted Plaintiff’s subjective symptom allegations for clear and convincing 26 reasons supported by substantial evidence. 27 * * * The ALJ’s RFC is supported by substantial evidence. 1 * * * 2 The ALJ’s nondisability determination is supported by substantial evidence and free of 3 legal error. 4 ORDER 5 IT IS HEREBY ORDERED that Judgment be entered affirming the decision of the 6 Commissioner of Social Security and dismissing this case with prejudice. 7 8 DATED: July 10, 2020 /s/ John E. McDermott

JOHN E. MCDERMOTT

9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27