WILLIAM Q. HAYES, District Judge.
The matter before the Court is the Report and Recommendation (ECF No. 18) issued by United States Magistrate Judge Karen S. Crawford, recommending that the motion for summary judgment (ECF No. 13) filed by Plaintiff be denied and that the cross-motion for summary judgment (ECF No. 14) filed by Defendant be granted.
On January 18, 2012, Plaintiff filed an application for Social Security Income Benefits ("SSI"), alleging disability beginning on August 1, 2011. (ECF No. 10-5 at 2-11). On February 3, 2012, Plaintiff's application was denied. (ECF No. 10-4 at 2). On April 24, 2012, Plaintiff's request for SSI was denied on reconsideration. Id. at 10.
On June 25, 2012, Plaintiff requested an administrative hearing before an Administrative Law Judge ("ALJ"). Id. at 15. A hearing was held on August 12, 2013. (ECF No. 10-2 at 47-56). Plaintiff testified at the hearing, as did Molly Catzil, a vocational expert. Id. at 55-57. On August 30, 2013, the ALJ found that:
(ECF No. 10-2 at 29-30).
On September 9, 2013, Plaintiff submitted a request for review of the ALJ's decision with the Appeals Council. (ECF No. 10-2 at 17-22). The Appeals Council then denied Plaintiff's request for review, and the ALJ's decision became the final decision of the Commissioner of Social Security ("Commissioner"). Id. at 4-6.
On March 6, 2015, Plaintiff commenced this action for judicial review of the Commissioner's final decision pursuant to 42 U.S.C. § 405(g). (ECF No. 1).
On August 31, 2015, Plaintiff filed a Motion for Summary Judgment. (ECF No. 13). On October 2, 2015, Defendant filed a Cross-Motion for Summary Judgment, (ECF No. 14), and an Opposition to Plaintiff's Motion for Summary Judgment. (ECF No. 15). On October 15, 2015, Plaintiff filed a Reply in support of her Motion for Summary Judgment. (ECF No. 17).
On June 6, 2016, the Magistrate Judge issued a Report and Recommendation. (ECF No. 18). The Magistrate Judge stated in part,
Id. at 27. The Magistrate Judge recommended that Plaintiff's Motion for Summary Judgment be denied and Defendant's Cross-Motion for Summary Judgment be granted.
On June 20, 2016, Plaintiff filed objections to the Report and Recommendation. (ECF No. 19). Plaintiff objects to the Magistrate Judge's conclusions that the ALJ did not err in finding that Plaintiff is not illiterate or unable to communicate in English, and that Plaintiff's testimony is not credible. Id. at 3. Plaintiff contends that this Court should credit Bahoo's testimony as true and reverse and award benefits to Bahoo or, in the alternative, remand this matter for further administrative proceedings. Id. at 10-11.
The duties of the district court in connection with a report and recommendation of a magistrate judge are set forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b). The district court must "make a de novo determination of those portions of the report ... to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b). The district court need not review de novo those portions of a report and recommendation to which neither party objects. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005); U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc).
When an applicant's claim for disability benefits under the Social Security Act has been denied, she may seek judicial review of the Commissioner's decision. See 42 U.S.C. § 405(g). Where, as in this case, "the Appeals Council denies a request for review of an ALJ's decision, the decision of the ALJ represents the final decision of the Commissioner." Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 n.1 (9th Cir. 2004) (citing 20 C.F.R. § 404.981). A reviewing court will reverse the ALJ's decision only if "it is based upon legal error or is not supported by substantial evidence." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citation omitted). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion" and is "more than a mere scintilla but less than a preponderance." Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (citation omitted). "If the record would support more than one rational interpretation, we defer to the ALJ's decision." Bayliss, 427 F.3d at 1214 n.1 (citation omitted).
Plaintiff does not dispute the ALJ's residual functional capacity assessment concluding that she is restricted to sedentary work but argues that she should be considered "disabled" under the Vocational Guidelines because she is (1) illiterate and/or unable to communicate in English and (2) unskilled or has no past relevant work history. Additionally, Plaintiff contends that her testimony regarding her medical condition should be found credible.
In the written opinion dated August 30, 2013, the ALJ stated,
(ECF No. 10-2 at 28-29).
In the Report and Recommendation, the Magistrate Judge concluded that "[substantial evidence in the Administrative Record supports the ALJ's conclusion that plaintiff has limited proficiency but is not illiterate or unable to communicate in English." (ECF No. 18 at 27). The Magistrate Judge explained,
Id. at 21-23.
Addressing Plaintiff's arguments in support of her Motion for Summary Judgment, the Magistrate Judge explained,
Id. at 26-27.
Plaintiff objects to the Magistrate Judge's conclusion that the ALJ did not err in finding that Plaintiff is not illiterate in or unable to communicate in English. (ECF No. 19 at 3). Specifically, Plaintiff objects to the Magistrate Judge's reliance on several documents, including the Disability Report titled, Form SSA — 336-7 and the Disability Report titled Form SSA — 3368, as evidence that Plaintiff is not illiterate and unable to communicate in English because those documents are inconclusive. Plaintiff objects to the Magistrate Judge's use of the Work History Report as evidence because it is not clear that Bahoo filled out the form herself.
Plaintiff objects to the Magistrate Judge's use of the medical records that do not include notations indicating Plaintiff's inability to communicate in the English language because medical records should not be used as conclusive evidence for disability determinations. Plaintiff further contends that Plaintiff's education from another country and the fact that she took courses to become a certified babysitter and work at a daycare should not be indicative of her ability to communicate in English because a foreign education is generally not indicative of the ability to communicate in English and "there is nothing inherent in the taking of courses; attaining a babysitter license; and babysitting children that necessarily required the ability to communicate or read/write in the English language." Id. at 7.
This Court has reviewed all of the records and the Report and Recommendation and concludes that the evidence supports the ALJ's finding that Plaintiff is not illiterate in or unable to communicate in English. The Disability Report titled, Form SSA — 336-7, which was completed as a result of a face-to-face interview between plaintiff and an interviewer, indicated that Plaintiff did not have trouble reading, understanding, talking, and answering in English. In the Disability Report titled, Form SSA — 3368, the Plaintiff indicated that she can speak and understand English. The Work History Report was completed by hand and signed by Plaintiff provides evidence that Plaintiff has communication skills in English. In that Report, the responses were written in simple English using the first person which supports the conclusion that Plaintiff filled out the form herself and has the ability to read, write, and understand basic English. Plaintiff's prior experience as a certified babysitter and her work at a daycare also supports the ALJ's conclusion that Plaintiff has some communication skills in English. The ALJ did not commit legal error when she considered the fact that Plaintiff took courses to become a certified babysitter. SSA regulations require the ALJ to consider information about the claimant's "formal or informal education [she] may have through [her] previous work, community projects, hobbies, and any other activities which might help [her] work." 20 C.F.R. § 416.964(b)(6).
Given the two Disability Reports, the Work History Report, the notations in the medical records, Plaintiff's prior foreign education, and Plaintiff's prior work experience, the Magistrate Judge correctly concluded that the ALJ's finding that Plaintiff is not illiterate in or unable to communicate in English was supported by sufficient evidence.
Plaintiff objects to the Magistrate Judge's conclusion that the ALJ did not err in finding that Plaintiff's testimony regarding her medical condition is not credible. Plaintiff contends that "the alleged lack of support from the medical evidence cannot be the sole basis for rejection of a claimant's testimony." (ECF No. 19 at 10). Plaintiff contends that the "ALJ failed to articulate clear and convincing reasons for rejecting Basima Bahoo's testimony." Id.
Congress expressly prohibits granting disability benefits based solely on subjective complaints. 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 404.1529(a) (explaining that "statements about your pain or other symptoms will not alone establish that you are disabled..."). The ALJ is also prohibited from rejecting or discrediting claims of excess pain testimony based solely on the lack of objective medical support in the record. See Light v. Social Security Administration, 119 F.3d 789, 792 (9th Cir. 1997). In this case, Plaintiff's testimony about increased and excessive pain was in conflict with medical records that describe "mild improvement." (ECF No. 18 at 18). Plaintiff's records do not indicate any signs of worsening conditions nor any signs to collaborate Plaintiff's testimony that she could not "lift and carry more than one pound." Id. at 19. Plaintiff's testimony concerning her worsening conditions conflicts with medical records, which state that the Plaintiff "did well post-surgically," is "overall doing well," and has "decreased use of narcotics." Id. Based on the record, the Court concludes that the Magistrate Judge correctly concluded that the ALJ met her burden of providing clear and convincing reasons of rejecting Plaintiff's testimony based on credibility.
After a de novo review of those portions of the Report and Recommendation to which Plaintiff objected, and after a review of the ALJ's decision and the Administrative Record, the Court finds that the Magistrate Judge correctly evaluated the facts and correctly applied the controlling law in this case. The Court concludes that the ALJ's decision is supported by substantial evidence and is free of legal error.
