Barker v. Commissioner of Social Security

• Court: District Court, S.D. California
• Decided: September 9, 2019
• Docket: 3:18-cv-01624
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 COREY BARKER, Case No.: 18cv1624-LAB (KSC)

12 Plaintiff, ORDER OVERRULING 13 v. OBJECTIONS AND ADOPTING REPORT AND 14 COMMISSIONER OF SOCIAL RECOMMENDATION; AND SECURITY, 15 Defendant. ORDER DENYING PLAINTIFF’S 16 MOTION FOR SUMMARY 17 JUDGMENT AND GRANTING DEFENDANT’S CROSS MOTION 18 FOR SUMMARY JUDGMENT 19 20 After an administrative law judge (the “ALJ”) denied his application for social 21 security disability benefits, Plaintiff Corey Barker brought this appeal. The matter 22 was referred to Magistrate Judge Karen Crawford for a report and 23 recommendation. The parties filed motions for summary judgment, and Judge 24 Crawford issued her report and recommendation (the “R&R”) on June 28, 2019. 25 Barker filed written objections, and the Defendant filed a reply. Barker was 26 represented by counsel both before the ALJ and in this Court. 27 A district court has jurisdiction to review a Magistrate Judge's report and 28 recommendation on dispositive matters. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 1 72(b). “The district judge must determine de novo any part of the magistrate judge's 2 disposition that has been properly objected to.” Id. Section 636(b)(1) similarly 3 requires that a district judge “make a de novo determination of those portions of 4 the report or specified proposed findings or recommendations to which objection 5 is made.” “A judge of the court may accept, reject, or modify, in whole or in part, 6 the findings or recommendations made by the magistrate judge.” Id. 7 This section does not require some lesser review by the district court when 8 no objections are filed. Thomas v. Arn, 474 U.S. 140, 149–50 (1985). The “statute 9 makes it clear that the district judge must review the magistrate judge's findings 10 and recommendations de novo if objection is made, but not otherwise.” United 11 States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis 12 in original). 13 Objections 14 The Court has reviewed the entire R&R, which is substantial. The R&R 15 correctly sets forth the legal standards for reviewing an administrative law judge’s 16 decision. The Court does not repeat those here, except as necessary for 17 discussion. The R&R also includes a lengthy discussion of the record, most of 18 which neither party objects to. It ultimately recommends denying Barker’s motion 19 for summary judgment and granting Defendant’s cross-motion, and affirming the 20 ALJ’s decision. Barker filed limited but specific objections, arguing that the Court 21 should reject the entire R&R and remand the matter for further administrative 22 proceedings. 23 Most of the R&R appears to be non-objectionable, and neither party objected 24 to most of its findings and discussion. To the extent neither party has objected to 25 the R&R, the Court accepts it as correct, and ADOPTS it. See § 636(b)(1); Fed. 26 R. Civ. P. 72(b). The following very limited factual background is taken from that 27 portion of the R&R. 28 / / / 1 Factual Background 2 Barker was born in 1959 and has worked in the furniture, home improvement, 3 and construction industries, and as a short-order cook. He said he had not worked 4 since his disability onset date of March 23, 2014, and filed his application for 5 disability insurance benefits on July 21, 2014. He claimed that his ability to work 6 was limited by his back pain and anxiety. His claim was denied at the initial and 7 reconsideration stages, and he requested a hearing before an administrative law 8 judge. 9 After the onset date, however, Barker collected unemployment benefits as 10 late as the first quarter of 2015. As part of the process of applying for 11 unemployment benefits, he was required to certify that he was able to work and 12 looking for employment. Barker also worked part-time for a florist after the claimed 13 disability onset date, but stopped on September 27, 2016. He reported to the ALJ 14 that he was still looking for work. 15 The relevant medical discussion begins with Barker’s visit to Dr. Ede in 16 August and September of 2013, for a psychiatric evaluation. At that time, he did 17 not appear to be in physical distress. Dr. Ede diagnosed him with panic disorder, 18 and prescribed medications. 19 The first discussed medical visit after the claimed onset date was to Dr. 20 William Bailey, for lower back pain. Dr. Bailey noted that Barker appeared to be in 21 pain and walking with difficulty. Dr. Bailey diagnosed him with a lumbar sprain and 22 strain, and prescribed treatment. 23 Barker saw a psychiatrist, Dr. Shahla Ramin, on September 30, 2014, who 24 relied only on Barker’s self-report and his own observations during the visit. Dr. 25 Ramin’s impression was that Barker was suffering from adjustment disorder with 26 depressed mood, as well as psychological and environmental problems. He found 27 no real limits on Barker’s mental or social abilities, and noted that he was able to 28 complete both simple and detailed tasks, and the activities of daily living. 1 Barker saw Dr. Moyad, an orthopedic surgeon, on October 1, 2014 for an 2 evaluation of his back problems. After an examination, Dr. Moyad diagnosed 3 Barker with (1) lumbar spondylosis and L4-5 Spondylosis with Stenosis; (2) mild 4 left leg radiculopathy; (3) right thoracic back rhomboid chronic strain; and (4) left 5 shoulder sub-acromial impingement/Bursitis. He also completed a functional 6 assessment. In his opinion, Barker in an 8-hour workday with normal breaks could 7 be expected to sit for up six hours and stand or walk for up to six hours. He opined 8 that Barker could lift and carry 20 pounds occasionally and 10 pounds frequently. 9 He also opined that Barker could be expected to climb, stoop, bend, and crouch 10 only occasionally, and that reaching with his right shoulder should be limited. 11 On November 13, 2014, Dr. Hartman conducted a consultative review of 12 records, giving great weight to the opinions of Drs. Ramin and Moyad. On this 13 basis, he concluded that Barker’s back problems were severe, and his mood 14 disorder was not severe. He noted mild restrictions and difficulties in daily living, 15 maintaining social function, and maintaining concentration, persistence, and pace. 16 He believed that one or more of Barker’s impairments can be expected to cause 17 pain and limitations, but that Barker’s own statements about the limiting effects of 18 his symptoms were not supported by the medical evidence alone. His 19 determination of Barker’s limitations were similar to those of Dr. Moyad. 20 On February 5, 2015, Dr. Khong performed a consultative review of Barker’s 21 back problems and affective mood disorder, based on the records from Drs. 22 Ramin, Moyad, Ede, and Bailey. He, too, gave great weight to the opinions of Drs. 23 Ramin and Moyad — although he noted that Dr. Moyad had a short relationship 24 with Barker. Dr. Khong essentially concurred with Dr. Hartmann’s opinion, 25 although he projected that with physical therapy, Barker would improve to the point 26 that, within about a month, he could perform past relevant work. 27 Barker was also treated by Drs. Kundu and Santoyo from October 2, 2014 28 to February of 2015. Dr. Kundu ordered physical therapy, X-rays, and lab work. 1 The X-rays showed several problems, including evidence of degenerative disc 2 disease at L3, L4, and L5; and at T6–T9. He prescribed medications and directed 3 Barker to treat his back with moist heat. 4 On November 20, 2014, Dr. Santoyo saw Barker about hypertension. No 5 back problems were reported. On January 7, 2015, Dr. Kundu saw Barker about 6 his anxiety, and Dr. Kundu addressed issues with anxiety medication. No back 7 problems were reported or observed during this visit. On January 19, 2015, a 8 registered dietician saw Barker about his hypertension, hyperlipidemia, and weight 9 management. On February 26, 2015, he had an appointment with Dr. Kundu but 10 left without being seen. 11 Barker underwent two rounds of physical therapy. During his first round of 12 treatment, January through June of 2015, he reported increased pain during this 13 period, saying he had strained his back while renovating a kitchen. He continued 14 to work on the kitchen renovation, which aggravated his pain. In spite of these 15 setbacks, however, he completed the physical therapy and reported no lower back 16 pain. He reported pain in the upper thoracic area after moving a piece of furniture, 17 the physical therapist recommended that he be discharged, since all treatment 18 goals for his lower back pain had been met. 19 During his second round of physical therapy from May to July of 2016, he 20 was working at a job that made more physical demands that he had expected. For 21 example, his back pain increased after he lifted and carried heavy furniture, 22 including counters at the flower shop where he worked. In the first two visits, his 23 gait was guarded and he reported some stiffness in his lower back. By May 25, the 24 pain and stiffness had lessened. But by June 14, he reported it had increased 25 because he had been lifting furniture. He skipped the next visit, saying he had been 26 in too much pain after lifting and carrying the counters. On June 22, his pain level 27 was low. On June 29, he again described an increase in pain because he had 28 again been lifting and moving objects at work. He missed his next appointment 1 because he had the flu, but reported that he was still working and had built a 2 retaining wall. Near the end of this round of therapy, he was advised to decrease 3 the intensity of his activities and to take a week off of work, because it was 4 aggravating his back pain. On his last visit on July 28, he reported improvement in 5 his leg pain, and no significant lower back pain. 6 The R&R discusses Barker’s treatment by several other doctors, Physician 7 Assistants, and a Nurse Practitioner through November of 2016. Neither party 8 objected to this analysis, or discussed it in any detail. Nevertheless, several points 9 bear mention. His gait, back pain, and range of motion were not consistently bad. 10 In fact, his gait was often observed to be normal and his back pain often minimal. 11 Except for Physician Assistant Randall Culler, who found a decreased range of 12 motion in forward and side flection, these other medical professionals found 13 Barker’s range of motion normal. 14 Discussion 15 Turning to those portions Barker objected to, he finds fault with the R&R’s 16 analysis of the ALJ’s decision to accept the opinion of examining physician Dr. 17 Sabourin and reject the opinions of Dr. Moyad, an examining physician; and Drs. 18 Khong and Hartman, non-examining physicians. He argues that the ALJ’s 19 discussion of record evidence was faulty in several particulars, and that the 20 decision to credit Dr. Sabourin’s opinion was erroneous in light of the record. 21 Assuming Dr. Sabourin’s opinion is rejected, the ALJ made an alternative finding 22 which could support denial of benefits. The ALJ found that Barker was able to do 23 work in the national economy in accordance with Medical-Vocational guidelines. 24 Barker argues that this finding is contradicted by the record. Finally, the ALJ 25 mentioned Barker’s work as a short-order cook, and Barker argues this should not 26 have been treated as substantial gainful employment (SGA) because it was too 27 long ago, and he did not earn enough at that job for it to qualify as SGA. The 28 objections focus solely on Barker’s back pain and its causes, and his ability to lift 1 and carry objects; he does not argue that the ALJ erred with regard to findings 2 based on his mental health, mobility issues, or other limitations or conditions. 3 The Court’s rulings on Barker’s objections are, in large part, driven by the 4 standard of review. “The ALJ is responsible for determining credibility, resolving 5 conflicts in medical testimony, and resolving ambiguities.” Vazquez v. Astrue, 572 6 F.3d 586, 591 (9th Cir. 2009). If the evidence is susceptible to more than one 7 rational interpretation, the Court must affirm the ALJ’s decision. Id. The ALJ’s 8 findings must be supported by substantial evidence. Schneider v. Comm’r of Soc. 9 Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000). This need not amount to a 10 preponderance, however. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 11 Barker’s objections largely argue that the ALJ should have drawn a different 12 conclusion from the evidence, and that the ALJ should have rejected examining 13 physician’s Dr. Sabourin’s findings in favor of the opinions of examining physician 14 Dr. Moyad, and the two non-examining physicians whose opinions are largely 15 based on Dr. Moyad’s notes. But the ALJ was permitted to, and did, resolve 16 conflicts between these two examining physicians’ opinions based on the record. 17 Furthermore, the ALJ was permitted to, and did, resolve substantial conflicts such 18 as conflicts between Barker’s activities, limitations, and symptoms as reported by 19 various sources: Barker to both the ALJ and to the medical professionals who 20 treated or examined him, Barker’s mother to the ALJ, and medical professionals 21 as reflected in notes and records. The fact that Barker can point to evidence that 22 might have led to a different conclusion does not mean the ALJ’s conclusion was 23 unsupported by substantial evidence. See Tommasetti v. Astrue, 533 F.3d 1035, 24 1038 (9th Cir. 2008). 25 Barker’s objections seize on the fact that he had a degenerative disc 26 condition and other spinal problems as proof that his condition was actually getting 27 substantially worse, and characterize Dr. Sabourin’s and the ALJ’s conclusions as 28 irrational in light of this. Specifically, he suggests that the ALJ must have found he 1 recovered from his degenerative disc disease. But he does not show that a 2 degenerative condition is necessarily severe or disabling. The question is not 3 whether his condition is getting worse; it is whether his condition has degenerated 4 to the point that he is disabled. Barker particularly disagrees with the R&R’s 5 observation that the ALJ could give Dr. Sabourin’s opinion more weight because 6 (among other things), it was more recent. If, as Barker contends, his condition 7 could only get worse, this was reasonable, because the most recent opinion should 8 reflect the greatest limitations and for that reason is likely to be the most probative. 9 See Delegans v. Colvin, 584 Fed. Appx. 328, 331 (9th Cir. 2014); Stone v. Heckler, 10 761 F.2d 530, 532 (9th Cir. 1985). In fact, the opinions of Drs. Moyad, Khong, and 11 Hartman were more limited. This merely represents a conflict, however; it does not 12 show that Dr. Sabourin’s opinion had to be rejected. The ALJ reasonably 13 concluded, for a number of other reasons supported by the record, that Dr. 14 Sabourin’s opinion should be given greater weight. 15 The ALJ’s finding that Barker’s medical records frequently showed mild or 16 no symptoms is not an example of reliance on “a few isolated instances of 17 improvement” to find a claimant not disabled. See Garrison v. Colvin, 759 F.3d 18 995, 1017 (9th Cir. 2014). Rather, the records over a period of time do reflect 19 conservative treatment (such as pain management and physical therapy rather 20 than surgery), and frequent findings of mild or no symptoms. It is also worth noting 21 that Dr. Khong believed that with physical therapy, Barker could soon recover to 22 the point where he could do work he had done in the past. 23 The ALJ also emphasized Barker’s relatively active lifestyle after the onset 24 date, which included employment, vigorous and challenging activities, and a wide 25 range of daily activities. The ALJ found this inconsistent with the opinions of Drs. 26 Moyad, Khong, and Hartman. In fairness, it is rather unusual to see a disability 27 claimant so active. In addition to relatively sedentary activities such as watching 28 television, reading, paying bills, and handling money, Barker was able to take care 1 of himself and his mother, who has Alzheimer’s. He performed chores such as 2 vacuuming, doing laundry, cooking, shopping, feeding and walking the dog, and 3 doing yard work. He could and did drive. As late as November of 2016, he regularly 4 drove from Fontana, California where he lived to visit his parents in Santee, which 5 is a substantial distance. He also traveled by walking, riding in a car, and riding a 6 bicycle. He engaged in hobbies such as hiking and fishing. 7 Barker reported that in September of 2014, he was painting his parents’ 8 house. In February of 2015, he renovated a kitchen. He fell out of a tree in March 9 of 2015 while trying to cut off a branch. He moved and lifted furniture in June of 10 2015. In May of 2016, he started a new job that he found physically challenging. 11 In June of 2016, he said he had to carry counters and other heavy objects at work. 12 In July of 2016, he built a retaining wall. The ALJ relied on all these activities— 13 which Barker himself reported and does not contest—as evidence that he was not 14 as limited as of Drs. Moyad, Khong, and Hartman believed he was. 15 Barker now objects that there was no evidence the furniture he carried was 16 50 pounds or more, and suggests that these activities were all isolated and he had 17 to rest and recuperate between them. The record does not bear this out. For 18 example, during his first round of physical therapy, he reported on February 10, 19 13, and 19 that he had been working on the kitchen renovation, which aggravated 20 his lower back pain. This reasonably suggests that he was engaged in an ongoing 21 and physically demanding project over the course of days. 22 During his second round of physical therapy in 2016, he reported engaging 23 in physically demanding activity at his new job. On June 14, he said he had been 24 lifting and carrying heavy furniture. He skipped the next visit, saying he said he 25 had been lifting and carrying heavy counters. But on June 22, he said his pain level 26 was low. Then on June 29, he said his back pain increased because he had been 27 lifting and moving heavy objects at work. He skipped the next appointment, saying 28 he had the flu, but reported that he was still working and built a retaining wall. 1 Whatever the exact weight of the furniture, counters, other heavy objects, and 2 materials he was using to build the retaining wall, it is clear he consistently 3 performing rather physically challenging tasks. This is entirely consistent with the 4 ALJ’s findings. 5 For unclear reasons, Barker also objects that the R&R should have 6 determined whether his work as a short-order cook—which he performed from 7 February 2001 to March 2003 and again December 2005 to March 2007— 8 amounted to substantial gainful activity, given that his reported earnings were 9 $5944.53 for 2001 and $2977.50 for 2007. He claims that it is “mathematically 10 impossible” for either of these to have been enough to amount to substantial 11 gainful activity, because the monthly average was too low. The earnings record to 12 which Barker cites, however, is clearly incomplete. For 2006, it reports no income 13 at all, even though he was employed the whole year. The ALJ resolved this 14 apparent contradiction by pointing out that for virtually his entire career Barker has 15 worked “under the table,” meaning his reported income has for many years been 16 lower than his actual income. The ALJ accepted record evidence showing that 17 Barker had earned $10 per hour and worked 40-hour weeks during his second 18 stint as a short-order cook, which is enough to amount to substantial gainful 19 activity. (AR at 30–31, 180.) 20 In any event, as Defendant’s response points out, Barker appears to have 21 waived this objection. And even if he had not, any error here was harmless. The 22 ALJ treated Barker’s former work as a short order cook as past relevant work to 23 which Barker could return, and cited 20 C.F.R. 416.965. Also, short order cook 24 was one of several jobs in the national economy that the vocational expert found 25 Barker could perform. 26 The Court has considered Barker’s objections, even if not discussed in detail 27 in this order, and has reviewed de novo all portions of the R&R to which Barker 28 has objected. Having done so, the Court OVERRULES his objections, and 1 ||ADOPTS the R&R. Barker’s motion for summary judgment is DENIED and 2 || Defendant’s cross motion for summary judgment is GRANTED. 3 The ALJ’s decision is supported by substantial evidence and is free from 4 ||reversible legal error. See Schneider v. Comm’r of Soc. Sec. Admin., 223 F.3d 5 ||968, 973 (9th Cir. 2000). The ALJ’s decision is AFFIRMED. The Clerk shall enter 6 judgment for Defendant and against Plaintiff. 7 IT IS SO ORDERED. 8 Dated: September 9, 2019 9 [ Mid 4. Bog nl 10 Hon. Latry Alan Burns 14 Chief United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28