DONNA M. RYU, Magistrate Judge.
Pro se Plaintiff Cindy A. Nelson moves for summary judgment to reverse the Commissioner of the Social Security Administration's (the "Commissioner's") final administrative decision, which found Nelson not disabled and therefore denied her application for benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. The Commissioner cross-moves to affirm. For the reasons stated below, the court denies Plaintiff's motion and grants the Commissioner's motion.
Plaintiff filed an application for Social Security disability insurance benefits on June 24, 2009, alleging a disability onset date of March 9, 2002. (A.R. 108-114.) Plaintiff last met the insured status requirements of the Social Security Act on March 31, 2007 ("date last insured"). (A.R. 117.) After her application was denied, Plaintiff filed a request for a hearing before an Administrative Law Judge (ALJ). (A.R. 60-68, 72-73.)
After the May 5, 2011 hearing, ALJ Denzel R. Busick issued a decision finding Plaintiff not disabled. (A.R. 21-28.) The ALJ determined that through the date last insured, Plaintiff was "status post two-level disc replacement at C5-C6 and C6-C7 on July 18, 2005." (A.R. 24.) The ALJ found that as of the date last insured (March 31, 2007), Plaintiff had the following residual functional capacity (RFC):
(A.R. 24.) He also found that Plaintiff's testimony as to symptoms and severity of pain, as well as resulting limitations as of March 31, 2007 "was "exaggerated, generally not credible, and not substantially supported" by the evidence in the record. (A.R. 24.) The ALJ concluded that as of March 31, 2007, Plaintiff was capable of performing her past relevant work as a library clerk or a payroll clerk, and concluded that Plaintiff was "not under a disability" as of that date. (A.R. 24.)
Plaintiff filed a request for review of the hearing on July 28, 2011 (A.R. 72-73), which the Appeals Council denied on January 2, 2013. (A.R. 6-10.) The ALJ's decision therefore became the final decision of the Commissioner. Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1231 (9th Cir. 2011). Plaintiff then filed suit in this court pursuant to 42 U.S.C. § 405(g).
The record contains the following information. Plaintiff was born in 1967. (A.R. 108.) On March 9, 2002, she suffered an injury while snowboarding, hitting her head on the snow. (A.R. 37.) She made it unassisted down to the bottom of the hill but was still complaining of headaches a few days later. (A.R 37.) Her doctor diagnosed a concussion. She continued to experience pain, dizziness, and nausea, and states that she was essentially incapacitated. One year later, after an x-ray, doctors determined she had suffered a broken neck in the fall. (A.R. 37-38.) In July 2005, she had what she described as a "neck replacement," which was a 2-level disc replacement at C5-C6 and C6-C7. (A.R. 38, 385-95.) One year after the surgery, she reported that she "actually felt better than she had for several years." (A.R. 430.) In July 2006, Plaintiff fell and hit her head while ice-skating, (A.R. 413-16), although a CT scan of her head and neck were "quite reassuring" and she was diagnosed with a "closed head injury." (A.R. 416.) In December 2006, Plaintiff reported "significant improvement" in her symptoms since her 2005 surgery. (A.R. 520.) In July 2007, based on examination results and Plaintiff's reports, her treating physician released her to full activities. (A.R. 462.)
At the hearing, Plaintiff testified that she continued to experience dizziness with accompanying nausea that varies according to her pain on a daily basis. (A.R. 38-39.) She has about seven to ten days per month where she is "least dizzy," during which she is able to go grocery shopping after taking Dramamine. (A.R. 39-40.) She typically "lays on ice" first thing in the morning, as well as following an activity such as grocery shopping. (A.R. 38, 40.) When she is experiencing the least amount of dizziness, she is able to cook and do some limited housecleaning but can only stand for 15-20 minutes at a time before needing to sit down. (A.R. 41.) She can tolerate working on a computer for a limited amount of time, but is sensitive to light and sound so tries to keep computer and television watching to a minimum because it makes her sick. (A.R. 41.) Loud noise, including the television, background noise, loud voices, doors banging, and ringing telephones make her dizziness worse. (A.R. 42.) Every couple of weeks she experiences a day where the dizziness is so acute that she is only able to get up to use the bathroom, which condition could last for a week or two. At her most dizzy, she is unable to do any physical activity, eat, read, or talk to people. (A.R. 43-44.) Plaintiff testified that this cycle of dizziness has remained constant since her injury in 2002. (A.R. 44.)
Plaintiff also testified about constant pain in her neck and her left eye all the way down her left side, as well as in the base of her head. She has had "a constant headache since [she] broke [her] neck." (A.R. 44.) She doesn't look up or down a lot, instead trying to keep her head stable, as it hurts if she has to look to the left, which triggers more dizziness. (A.R. 45.) Plaintiff also experiences left shoulder pain "all the time," up into her neck and head. (A.R. 45.) She can use her left shoulder but tries not to use it for lifting "anything much" or she will "feel it for days." (A.R. 46.) She can lift a half gallon of milk with her left hand, but not a gallon. (A.R. 46.) She also has swelling and pain on her left hip and leg, with sciatica pain down the back of her leg, with numbness in two toes on her left foot. (A.R. 47.) If she goes for a walk, she "pay[s] for it" and has to lay on ice. (A.R. 47.) Her neck, shoulder, and hip pain began when she broke her neck and have remained constant since then. (A.R. 48.)
In 2005, she believed she was getting better and took a job working at the checkout counter at a liquor store. However, as part of her job duties, she had to lift and shelve bottles which made her sick, so she quit. (A.R. 49.) Plaintiff's physical limitations affect her ability to concentrate and focus, as she is unable to concentrate, focus, or remember things when she is in pain. (A.R. 50.) She testified that she is taking Amitriptyline, an antidepressant; Dramamine and Phenergan to treat motion sickness; and takes Vicodin and Soma, a muscle relaxer, as "back-ups." (A.R. 54.)
In her motion, Plaintiff states that she has "physical issues w/psychological factors affecting [her] physical condition that the [ALJ] did not consider," and describes the chronic pain, nausea, and dizziness that she experiences, consistent with her testimony at the hearing. (Pl.'s Mot. 2.) She lists symptoms not mentioned by the ALJ, including "double vision, vomiting, nausea, chronic headache w/migraine tend[encies], neck pain, earaches, balance off, left arm pain, sound sensitive, light sensitive, feel best lying down." (Pl.'s Mot. 9.) She also lists her treatment and diagnoses from 2002 through 2012. (See generally Pl.'s Mot.) Essentially, Plaintiff makes two challenges to the ALJ's decision. She challenges: (1) the ALJ's determination that she could return to her past relevant work; and (2) his decision to discount her testimony.
Pursuant to 42 U.S.C. § 405(g), this court has the authority to review a decision by the Commissioner denying a claimant disability benefits. The ALJ's underlying determination "will be disturbed only if it is not supported by substantial evidence or it is based on legal error." Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (internal quotation marks omitted). "Substantial evidence" is evidence within the record that could lead a reasonable mind to accept a conclusion regarding disability status. See Richardson v. Perales, 402 U.S. 389, 401 (1971). It is "more than a mere scintilla" but less than a preponderance. Id. When performing this analysis, the court must "consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence." Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citation and quotation marks omitted).
If the evidence reasonably could support two conclusions, the court "may not substitute its judgment for that of the Commissioner" and must affirm the decision. Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997) (citation omitted). The ALJ is responsible for determining credibility and resolving conflicts in medical testimony, resolving ambiguities, and drawing inferences logically flowing from the evidence. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984); Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982); Vincent ex. rel. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984). "Finally, the court will not reverse an ALJ's decision for harmless error, which exists when it is clear from the record that the ALJ's error was inconsequential to the ultimate nondisability determination." Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citations and internal quotation marks omitted).
Plaintiff challenges the ALJ's determination that she could return to her past relevant work as a library clerk and payroll clerk as not supported by substantial evidence. Plaintiff lists the symptoms she currently experiences, and claims that the ALJ did not take them into consideration in determining that she could perform her past work.
"In determining the ultimate issue of disability, [Plaintiff] bears the burden of proving she is disabled." Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). In determining a claimant's RFC at step four of the sequential analysis, an ALJ must consider "all of the relevant medical and other evidence" in the record, 20 C.F.R. §§ 404.1545(a)(3), 404.1546(c), and must consider all of the claimant's "medically determinable impairments," including those that are not severe. 20 C.F.R. § 404.1545(a)(2); Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); see also SSR 96-8p, 1996 WL 374184, at *5 ("In assessing RFC, the adjudicator must consider limitations and restrictions imposed by all of an individual's impairments [because] limitations due to such a `not severe' impairment may prevent an individual from performing past relevant work or may narrow the range of other work that the individual may still be able to do."). The court must uphold an ALJ's RFC assessment when the ALJ has applied the proper legal standard and substantial evidence in the record as a whole supports the decision. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). In making an RFC determination, the ALJ may consider those limitations for which there is support in the record and need not consider properly rejected evidence or subjective complaints. See id. (upholding RFC determination where "the ALJ took into account those limitations for which there was record support that did not depend on [claimant's] subjective complaints.").
As a preliminary matter, it is important to note that in order to establish her entitlement to Title II benefits, Plaintiff was required to demonstrate that her disability began on or prior to March 31, 2007, her insurance expiration date (date last insured). See Johnson, 60 F.3d at 1432 ("[Claimant] must prove that she was either permanently disabled or subject to a condition which became so severe as to disable her prior to the date upon which her disability insured status expires."); see also Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998) ("Appellant's insured status expired on September 30, 1992. To be entitled to disability benefits, Appellant must establish that her disability existed on or before this date."). After a review of the entire record, the court finds that substantial evidence supports the ALJ's finding that Plaintiff failed to establish that she was disabled on or before March 31, 2007.
As the ALJ noted in his decision, Plaintiff testified that she injured herself in a snow-boarding accident in March 2002. (A.R. 25.) He determined that through her date last insured, Plaintiff was status post two-level disc replacement on July 18, 2005, a severe impairment, but that Plaintiff's testimony as to the severity of pain and dizziness she has experienced on an ongoing basis since the accident was inconsistent with the objective medical evidence and her own admissions about her symptoms prior to March 31, 2007. The ALJ carefully considered the evidence for making this determination. In particular, the ALJ discussed Plaintiff's treatment records, which for the most part show great improvement following her surgery. She was admitted for surgery on July 18, 2005, with an admitting diagnosis of degenerative disc disease of C-5, C-6, and C-7. (A.R. 388.) Her surgery involved no "complications whatsoever," with her physician noting that "[p]ost-operatively she has done extremely well." (A.R. 387.) X-ray results two days later showed there was no significant hardware subluxation or loosening, and alignment was anatomic. (A.R. 394.) In August 2005, she reported feeling weepy, depressed, and anxious, having expected to feel much better after the surgery, but many of her symptoms had not yet resolved. (A.R. 639.) Later that month, she was still having some stiffness but stated it was significantly better, (A.R. 476), and at a follow up on October 6, 2005, she again reported feeling "significantly better," and experiencing decreased spasms and headaches after a change in medications. (A.R. 452.) In addition, she had full and unrestricted range of motion of the cervical spine, and no pain or tenderness during palpation of the paraspinal muscles. (A.R. 452.) She again reported headaches, spasms, and pain in her left upper extremity in November 2005, but still had full and unrestricted range of motion of the cervical spine. (A.R. 468.)
In January 2006, Plaintiff underwent a neurologic consultation, stating that despite still having pain on the left side of her neck, she was now "70 percent better" since her 2005 surgery. (A.R. 548.) She had mildly restricted range of motion of her neck, but her rotation and flexion seemed to be normal. (A.R. 548.) The consulting physician performed a series of nerve conduction studies, the results of which were normal. He found that her neurological exam and electrical studies were normal, and stated "I really found no significant evidence of an underlying cervical radiculopathy or peripheral entrapment syndrome," recommending that she continue with her exercises. (A.R. 549-550.) On January 31, 2006, Plaintiff had full and unrestricted range of motion of the cervical spine, with no pain or tenderness during palpation of the paraspinal muscles. Her treatment provider noted that her radiographs looked excellent and that she felt "dramatically better," over 80% from her preoperative symptoms. (A.R. 466.)
Six months later, on June 1, 2006, Plaintiff again reported chronic neck pain, stating that her surgery gave her considerable relief but that she was still experiencing significant pain, taking Darvocet and Soma. (A.R. 451.) She and her husband told the physician that she had been under considerable stress with her teenage daughters. (A.R. 451.) On June 9, 2006, Plaintiff reported that she felt about 70% better post-operatively, but continued to have pain and occasional aching in her left arm. (A.R. 433.) She was given a trigger point injection which she tolerated well and was scheduled to be checked in three weeks. (A.R. 434-45.) For her recheck on July 12, 2006, she said she was overall feeling very well, "the best that she has felt in several years," and that the trigger point took her headache away with occasional, manageable shoulder pain or strain. (A.R. 432.)
On July 25, 2006, Plaintiff's treatment provider reported that she was doing "outstanding" and that the epidural steroid injection had "completely resolved" her headaches. She was instructed to follow up in one year. (A.R. 464.) However, on July 30, 2006, she visited the emergency room after she fell and hit her head while ice skating. (A.R. 413-19.) She reported nausea and vertigo with movement. (A.R. 415.) A CT scan of her head and neck were unremarkable without evidence of fracture or abnormality. (A.R. 416.) She was diagnosed with a closed head injury with left occipital contusion and cervical strain. (A.R. 416.) The hospital discharged her with prescriptions for anti-nausea medication and Percocet for pain. (A.R. 416.)
Following her ice skating accident, it appears that Plaintiff experienced a recurrence of her back and shoulder pain. The record shows that she was seen by her treatment providers four times in November 2006. On November 21, 2006, she presented with complaints of back and left shoulder pain, stating that the pain had been worse the prior two weeks and noting that she thought it was worse because of stress. (A.R. 398.) Her provider recommended massage therapy, gave her a prescription for Vicodin, and referred her to a specialist in pain management. (A.R. 398.) One week later, on November 28, 2006, she requested a refill of Vicodin, having used two weeks' worth in one week, and stated that her pain was barely being subdued. (A.R. 400). The next day, November 29, 2006, at a recheck appointment, she was given a trigger point injection. (A.R. 431.) She told her provider that she had seemed to improve following her ice skating accident, but that she had experienced pain in the previous two weeks. She felt like her arm was generally weak, with rare tingling in two fingers, but stated that those conditions predated her 2005 surgery and had been on and off for years. (A.R. 430.) She had approximately 50% of normal rotation and extensions, with stiff movements and mild tenderness. (A.R. 430.) Her physician's impression was neck pain with some intermittent nerve root irritation status post disc replacement. (A.R. 430.)
Dr. Karen C. Nelson, a physiatrist, examined Plaintiff on December 13, 2006. (A.R. 520-23.) At that time she reported significant improvement in her symptoms since the 2005 surgery. Notably, Plaintiff stated that she had experienced nausea and vertigo, but "none significantly since surgical correction," contrary to her testimony at the hearing. (A.R. 520.) She had intermittent radiating pain from her neck into the posterior and lateral upper arm but denied any specific weakness or hypersensitivity. (A.R. 520.) Plaintiff rated her average pain level at six, with three on a good day and nine or ten on a bad day. (A.R. 521.) She also stated that Darvocet, Vicodin and Soma were helpful. (A.R. 521.) Dr. Nelson assessed cervical pain that was greater on the left side, myofascial pain syndrome which was responsive to trigger point injections, tension-type headaches on the left, left upper extremity hypo and dysesthesia, nonfocal neurologic examination, and possible anxiety-depression disorder. (A.R. 522.) Dr. Nelson recommended a change of medication and prescribed Cymbalta. (A.R. 522.)
It appears that Plaintiff experienced great improvement in her condition following the consultation with Dr. Nelson. On July 25, 2007, four months after her date last insured, Plaintiff was noted to be "doing great" and stated she was "absolutely thrilled with the results of her surgery and very happy." (A.R. 462.) Her headaches had resolved, and although she felt she still had some left arm weakness, she said it was nothing more than it had been since her surgery. (A.R. 462.) She reported she was weaning herself from Cymbalta and Neurontin, with plans to discontinue them in the next month. Six views of the cervical spine showed good alignment and position of the arthroplasty device. (A.R. 462.) Based on the examination results and Plaintiff's reports, she was released to full activities, with no limitations, and was told that she may return in one year if she wanted x-rays for "peace of mind." (A.R. 462.)
The court finds that substantial evidence underlies the ALJ's finding that Plaintiff's medical records, as well as her own statements, supported a finding that she could perform her past relevant work as a library clerk and a payroll clerk as of her date last insured. As discussed above, Plaintiff was often noted to be doing well, reporting post-operative improvement of 70-80%. The record shows that Plaintiff continued to do well, with her continued improvement noted in November 2008, over a year after she was released to full activities. (A.R. 459-61.) She was noted as doing "outstanding," with full and unrestricted range of motion of the cervical spine and no pain or tenderness during palpation of the paraspinal muscles. (A.R. 459.) Plaintiff stated she had been hiking and "doing all activities as she desires" at that time. (A.R. 461.) Although treatment records from 2010 and 2011 appear to show that Plaintiff later experienced and sought treatment for chronic pain related to her neck and shoulder, (see A.R. 585-723), they postdate her date last insured by several years. Accordingly, these records, as well as Plaintiff's description of her current symptoms, do not corroborate her claim that she was disabled on or before March 31, 2007. See, e.g., Wegner v. Colvin, No. EDCV 13-0634-JPR, 2014 WL 1430955, at *13 (C.D. Cal. Apr. 14, 2014) (finding medical records which postdated plaintiff's last insured date did not support his claim that he was "totally disabled during his insured period," citing Johnson, 60 F.3d at 1432). The court finds that the ALJ did not err in determining that Plaintiff could perform a range of light work with some limitations.
Plaintiff also challenges the ALJ's decision to discount her credibility, stating that she did not exaggerate her symptoms. (See Pl.'s Mot. 9.)
In general, credibility determinations are the province of the ALJ. "It is the ALJ's role to resolve evidentiary conflicts. If there is more than one rational interpretation of the evidence, the ALJ's conclusion must be upheld." Allen v. Sec'y of Health & Human Servs., 726 F.2d 1470, 1473 (9th Cir. 1984). An ALJ is not "required to believe every allegation of disabling pain" or other nonexertional impairment. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.1989) (citing 42 U.S.C. § 423(d)(5) (A)). Nevertheless, the ALJ's credibility determinations "must be supported by specific, cogent reasons." Reddick, 157 F.3d at 722 (citation omitted). If an ALJ discredits a claimant's subjective symptom testimony, the ALJ must articulate specific reasons for doing so. Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006). In evaluating a claimant's credibility, the ALJ cannot rely on general findings, but "must specifically identify what testimony is credible and what evidence undermines the claimant's complaints." Id. at 972 (quotations omitted); see also Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (ALJ must articulate reasons that are "sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit claimant's testimony."). The ALJ may consider "ordinary techniques of credibility evaluation," including the claimant's reputation for truthfulness and inconsistencies in testimony, and may also consider a claimant's daily activities, and "unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment." Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). The determination of whether or not to accept a claimant's testimony regarding subjective symptoms requires a two-step analysis. 20 C.F.R. §§ 404.1529, 416.929; Smolen, 80 F.3d at 1281 (citations omitted). First, the ALJ must determine whether or not there is a medically determinable impairment that reasonably could be expected to cause the claimant's symptoms. 20 C.F.R. §§ 404.1529(b), 416.929(b); Smolen, 80 F.3d at 1281-82. Once a claimant produces medical evidence of an underlying impairment, the ALJ may not discredit the claimant's testimony as to the severity of symptoms "based solely on a lack of objective medical evidence to fully corroborate the alleged severity of" the symptoms. Bunnell v. Sullivan, 947 F.2d 341, 343, 346-47 (9th Cir. 1991) (en banc) (citations omitted). Absent affirmative evidence that the claimant is malingering,
Here, the ALJ noted that through her date last insured, Plaintiff was status post two-level disc replacement on July 18, 2005, a severe impairment, but that Plaintiff's "testimony as to the severity of pain and dizziness she has reportedly experienced on an ongoing basis since the snowboard accident in 2002 [was] not consistent with medical evidence and her own admissions in [the] record proximate to" to March 31, 2007. (A.R. 25.) Elsewhere in his opinion, he noted that Plaintiff's "testimony as to [her] symptoms, including pain in the degree of severity present" as of March 31, 2007 "with resultant limitations, was exaggerated, generally not credible, and not substantially supported" by the evidence in the record. (A.R. 24.)
The ALJ carefully considered the evidence for making this determination. As discussed above, Plaintiff's medical records reveal that she often reported to her treating physicians that she was doing quite well. (See, e.g., A.R. 430 (11/29/06, "She actually felt better than she had for several years"); 432 (7/21/06, "This is the best that she has felt in several years"); 461 (11/17/08 ("The patient is doing outstanding at this time . . . [s]he is doing all activities as she desires at this time"); 464 (7/25/06, "The patient is doing outstanding . . . [headaches] are completely resolved at this time").) In addition, although Plaintiff testified that her disabling pain and dizziness were "constant" since her snowboarding accident, (A.R. 44, 48), from 2006-2008, she was able to rollerblade three times per week, ice skate, exercise daily, and hike. (A.R. 415-16, 433, 461-62.) In 2008, she reported doing all activities as desired. (A.R. 461.) See Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) ("In reaching a credibility determination, an ALJ may weigh inconsistencies between the claimant's testimony and his or her conduct, daily activities, and work record, among other factors."). The ALJ also noted that Plaintiff's testimony about the constancy of her dizziness since the 2002 accident was contradicted by her report to Dr. Nelson that while she had initially experienced nausea and vertigo following the accident, she had had "none significantly since surgical correction." (A.R. 26, 520.)
The ALJ considered all of the above factors in concluding that Plaintiff's testimony was not credible. The court finds that the ALJ provided clear and convincing reasons for his decision, which were supported by substantial evidence.
For the above reasons, the court denies Plaintiff's motion for summary judgment and grants the Commissioner's motion for summary judgment.
