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Frierson v. Berryhill

United States District Court, D. Hawaii

September 8, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Kevin S.C. Chang, United States Magistrate Judge

         Plaintiff Macrina Jean Frierson (“Plaintiff”) appeals the Administrative Law Judge's (“ALJ”) determination that she is not disabled. She asks this Court to reverse the ALJ's decision and find her disabled as of March 25, 2012. Oral arguments were held on September 6, 2017. Danielle Beaver, Esq., appeared on behalf of Plaintiff. Special Assistant U.S. Attorney Asim Modi appeared by telephone and Assistant U.S. Attorney Edric Ching appeared on behalf of Defendant Nancy Berryhill (“Commissioner”).

         After careful consideration of the parties' submissions, the record, the applicable law, and the arguments of counsel, the Court HEREBY AFFIRMS the ALJ's Decision for the reasons set forth below.


         On March 14, 2012, Plaintiff filed an application for Disability Insurance Benefits (“DIB”), alleging a disability onset date of March 25, 2012.[1] The Social Security Administration (“SSA”) denied her application.

         On August 11, 2014, the ALJ convened a hearing.

         On October 31, 2014, the ALJ issued her Decision, finding and concluding as follows:

• Plaintiff meets the insured status requirements of the Social Security Act through June 30, 2015. Administrative Record (“AR”) at 17.
• Plaintiff has not engaged in substantial gainful activity since March 25, 2012. Id.
• Plaintiff's severe impairments include degenerative disc disease of the lumbar spine and diabetes mellitus. Id. at 18.
• Plaintiff does not have an impairment or combination of impairments that meet or medically equal the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526). Id. at 19.
• Plaintiff has the residual functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b)
except that she is able to lift and/or carry 20 pounds occasionally and 10 pounds frequently; stand and/or walk 6 hours in an 8-hour day with customary breaks; sit 6 hours in an 8-hour day with customary breaks; she would need to alternate positions between sitting and standing at 1-hour intervals for 1-5 minutes at the workstation; occasionally kneel, stoop, crawl, and crouch; occasionally climb ramps and stairs; never climb ladders, ropes, or scaffolds; she would have no restrictions on the use of the upper extremities for fine or gross manipulations or reaching in any direction; she would need to avoid unprotected height and dangerous moving machinery; she would be able to sustain concentration and attention, persistence and pace in two hour blocks of time to complete a normal workday; she would be able to interact and respond appropriately to coworkers, supervisors, and the general public; and she would be able to understand remember and carry out both detailed and complex tasks.


• Plaintiff is capable of performing past relevant work as an administrative clerk, and such work does not require her to perform work-related activities precluded by her residual functional capacity. Id. at 23.
• Plaintiff has not been under a disability. Id. at 24.

         On December 17, 2014, Plaintiff filed a Request for Review of Hearing Decision/Order. Id. at 7. The ALJ's Decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's Request on May 17, 2016. Id. at 1-6.


         The decision of the Commissioner must be affirmed if it is supported by substantial evidence and the Commissioner applied the correct legal standards. Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003). “Substantial evidence means more than a mere scintilla, but less than a preponderance. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Trevizo v. Berryhill, 862 F.3d 987, 996 (9th Cir. 2017) (citation and quotation omitted); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). To determine whether there is substantial evidence to support the ALJ's decision, a court “must consider the entire record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion, and may not affirm simply by isolating a specific quantum of supporting evidence.” Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)). If the record, considered as a whole, can reasonably support either affirming or reversing the ALJ's decision, the decision must be affirmed. Hiler v. Astrue, 687 F.3d 1209, 1211 (9th Cir. 2012); Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (“Where evidence is susceptible to more than one rational interpretation, the ALJ's decision should be upheld.”); Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992) (“If the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.”); see also Burch, 400 F.3d at 679. The ALJ, as the finder of fact, is responsible for weighing the evidence, resolving conflicts and ambiguities, and determining credibility. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).


         Plaintiff appeals the ALJ's determination that she is not disabled.[2] She argues that she is unable to perform her past relevant work and asks this Court to find her disabled with an onset date of March 25, 2012.

         To be eligible for disability insurance benefits, a claimant must demonstrate that he 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). In addition, it may only be determined that a claimant is under a disability “if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). Only disabilities existing before the date last insured establish entitlement to disability insurance benefits. Sam v. Astrue, 550 F.3d 808, 810 (9th Cir. 2008) (citing Vincent v. Heckler, 739 F.2d 1393, 1394 (9th Cir. 1984) (per curiam)).

         A five-step analysis is employed in evaluating disability claims.

In step one, the ALJ determines whether a claimant is currently engaged in substantial gainful activity. If so, the claimant is not disabled. If not, the ALJ proceeds to step two and evaluates whether the claimant has a medically severe impairment or combination of impairments. If not, the claimant is not disabled. If so, the ALJ proceeds to step three and considers whether the impairment or combination of impairments meets or equals a listed impairment under 20 C.F.R. pt. 404, subpt. P, App. 1. If so, the claimant is automatically presumed disabled. If not, the ALJ proceeds to step four and assesses whether the claimant is capable of performing her past relevant work. If so, the claimant is not disabled. If not, the ALJ proceeds to step five and examines whether the claimant has the residual functional capacity (“RFC”) to perform any other substantial gainful activity in the national economy. If so, the claimant is not disabled. If not, the claimant is disabled.

Burch, 400 F.3d at 679; 20 C.F.R. § 404.1520. It is the claimant's burden to prove a disability in steps one through four of the analysis. Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). “However, if a claimant establishes an inability to continue [his] past work, the burden shifts to the Commissioner in step five to show that the claimant can perform other substantial gainful work.” Id. (citation omitted).

         In conducting the relevant analysis, and as applicable to the instant appeal, the ALJ found that Plaintiff is able to perform past relevant work as an administrative clerk and that she is not disabled. AR at 23-24. Plaintiff contends that it was an abuse of discretion for the ALJ to express medical opinions unsupported by the evidence and outside her area of expertise in concluding that Plaintiff's condition was not disabling. Plaintiff additionally submits that the facts relied upon by the ALJ do not support her determination that Plaintiff was not credible.

         A. Credibility Determination

         Plaintiff challenges the ALJ's conclusion that she was not fully credible. “Credibility determinations are the province of the ALJ.” Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989); Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (citations and quotations omitted) (“[Q]uestions of credibility and resolutions of conflicts in the testimony are functions solely of the Secretary.”); Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007). When the ALJ makes specific findings justifying a decision to disbelieve an allegation of excess pain, and those findings are supported by substantial evidence in the record, it is not the Court's role to second-guess that decision. Fair, 885 F.2d at 604. The Ninth Circuit has established a two-step analysis for determining the extent to which a claimant's symptom testimony must be credited:

First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged. In this analysis, the claimant is not required to show that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of the symptom. Nor must a claimant produce objective medical evidence of the pain or fatigue itself, or the severity thereof.
If the claimant satisfies the first step of this analysis, and there is no evidence of malingering, the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so. This is not an easy requirement to meet: The clear and convincing standard is the most demanding required in Social Security cases.

Trevizo, 862 F.3d at 1000 (quoting Garrison, 759 F.3d at 1014-15); Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (identifying two-step analysis in assessing the credibility of a claimant's testimony regarding the subjective pain or intensity of symptoms); Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009); Lingenfelter, 504 F.3d at 1036. That said, the ALJ need not “‘believe every allegation of disabling pain, or else disability benefits would be for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).'” Molina, 674 F.3d at 1112 (quoting Fair, 885 F.2d at 603).

         Credibility determinations must be made with sufficiently specific findings to allow the court to conclude that the ALJ did not arbitrarily discredit a claimant's testimony. Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (citing Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991) (en banc)). The following factors are relevant in reviewing an ALJ's credibility findings, and are also required by the SSA:

(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, 504 F.3d at 1040; Orn, 495 F.3d at 636 (quoting Fair, 885 F.2d at 603) (ALJs may consider the following factors in weighing a claimant's credibility: “reputation for truthfulness, inconsistencies in testimony or between testimony and conduct, daily activities, and ‘unexplained, or inadequately explained, failure ...

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