Bert Hicks v. Andrew Saul

• Court: District Court, C.D. California
• Decided: July 6, 2021
• Docket: 2:20-cv-04922
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

11 BERT H.,1 Case No. 2:20-cv-04922-GJS

12 Plaintiff

13 v. MEMORANDUM OPINION AND ORDER 14 ANDREW M. SAUL, Commissioner of Social Security, 15 Defendant. 16

17 18 I. PROCEDURAL HISTORY 19 Plaintiff Bert H. (“Plaintiff”) filed a complaint seeking review of the decision 20 of the Commissioner of Social Security denying his applications for Disability 21 Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). The parties 22 filed consents to proceed before the undersigned United States Magistrate Judge 23 [Dkts. 5 and 11] and briefs addressing disputed issues in the case [Dkt. 18 (“Pl. 24 Br.”) and Dkt. 21 (“Def. Br.”).] The matter is now ready for decision. For the 25 reasons discussed below, the Court finds that this matter should be affirmed. 26

27 1 In the interest of privacy, this Order uses only the first name and the initial of the last name of the non-governmental party. 28 1 II. ADMINISTRATIVE DECISION UNDER REVIEW 2 On April 19, 2016, Plaintiff filed his applications for SSI and DIB alleging 3 disability based on a variety of issues including a history of above-knee left leg 4 amputation stemming from a motorcycle accident in 2000 and a total right knee 5 replacement in 2016. [Dkt. 15, Administrative Record (“AR”).] Plaintiff’s 6 applications were denied initially, on reconsideration, and after a hearing before 7 Administrative Law Judge (“ALJ”) Ben Willner. [AR 1-6, 15-29.] 8 Applying the five-step sequential evaluation process, the ALJ found that 9 Plaintiff was not disabled. See 20 C.F.R. §§ 416.920(b)-(g)(1). At step one, the 10 ALJ found that Plaintiff had not engaged in substantial gainful activity since March 11 31, 2017, the alleged onset date. [AR 18.] At step two, the ALJ found that Plaintiff 12 had the following severe impairments: lower extremity amputation of the leg above 13 the knee; residual effects status-post surgery of a right knee replacement; 14 degenerative joint disease of the right knee; diabetes mellitus, Type II; and obesity. 15 [AR 18.] The ALJ determined at step three that Plaintiff did not have an impairment 16 or combination of impairments that meets or medically equals the severity of one of 17 the listed impairments. [AR 20-23.] 18 Next, the ALJ found that Plaintiff had the residual functional capacity 19 (“RFC”) to perform a limited range of sedentary work. [AR 23.] Applying this 20 RFC, the ALJ found at step four that Plaintiff could perform his past relevant work 21 as a telephone solicitor and thus he is not disabled. [AR 27.] Plaintiff sought 22 review of the ALJ’s decision, which the Appeals Council denied, making the ALJ’s 23 decision the Commissioner’s final decision. [AR 1-6.] This appeal followed. 24 III. GOVERNING STANDARD 25 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 26 determine if: (1) the Commissioner’s findings are supported by substantial evidence; 27 and (2) the Commissioner used correct legal standards. See Carmickle v. Comm’r 28 Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Brewes v. Comm’r Soc. Sec. 1 Admin., 682 F.3d 1157, 1161 (9th Cir. 2012) (internal citation omitted). 2 “Substantial evidence is more than a mere scintilla but less than a preponderance; it 3 is such relevant evidence as a reasonable mind might accept as adequate to support a 4 conclusion.” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 5 2014) (internal citations omitted). 6 The Court will uphold the Commissioner’s decision when the evidence is 7 susceptible to more than one rational interpretation. See Molina v. Astrue, 674 F.3d 8 1104, 1110 (9th Cir. 2012). However, the Court may review only the reasons stated 9 by the ALJ in his decision “and may not affirm the ALJ on a ground upon which he 10 did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court will not 11 reverse the Commissioner’s decision if it is based on harmless error, which exists if 12 the error is “inconsequential to the ultimate nondisability determination, or if despite 13 the legal error, the agency’s path may reasonably be discerned.” Brown-Hunter v. 14 Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations 15 omitted). IV. DISCUSSION 16 17 Plaintiff raises the following arguments: (1) the ALJ erred in failing to find he 18 met or equaled Listings 1.02, 1.03 or 1.05 (ambulatory joint disorders); and (2) the 19 ALJ’s finding that he could perform his past relevant work is not supported by 20 substantial evidence. [Pl. Br. at 4-8.] The Commissioner asserts that the ALJ’s 21 decision should be affirmed. [Def. Br. at 1-15.] 22 A. The ALJ Did Not Err at Step Three 23 Plaintiff first contends the ALJ erred at Step Three in failing to find he met 24 Listings 1.02, 1.03, or 1.05 alone or in combination which generally covers 25 disabilities based on major dysfunction of a joint and the inability to ambulate 26 effectively. Plaintiff argues that there is sufficient evidence to show that he meets 27 the requirements of either of these Listings because “the record as a whole 28 demonstrates that [he] had an inability to ambulate effectively before and after his 1 total right knee replacement in November 11, 2016.” (Pl. Br at 5.) According to 2 Plaintiff, the medical evidence as a whole demonstrates that (1) he requires a 3 wheelchair which undermines the ALJ’s findings that he can ambulate effectively 4 and (2) the orthopedic Consultative Examiner found that he required a wheelchair to 5 ambulate and that he cannot stand and walk. Plaintiff further alleges that even if he 6 can ambulate with a prosthetic on his left leg the record establishes that he cannot 7 ambulate effectively when considering his left-leg amputation in combination with 8 his total right-knee replacement, which amounts to two lower extremity 9 impairments. (Pl. Br. at 5.) 10 In response, Defendant argues the medical evidence supported the ALJ’s step 11 three finding because Plaintiff did not satisfy the regulatory definition of “inability 12 to ambulate effectively.” (Def.’s Br. at 4-10.) Specifically, Defendant argues that 13 the record fails to establish that Plaintiff was unable to ambulate effectively for a 14 medical reason for a 12-month period, two requirements needed to establish that 15 Plaintiff meets the purported Listings. 16 1. Legal Standard 17 At step three in the sequential process, an ALJ must consider whether a 18 claimant’s conditions meet or equal any of the impairments outlined in the Listing 19 of Impairments. 20 C.F.R. § 404.1520(a)(4)(iii). The listings describe impairments 20 that “would prevent an adult, regardless of his age, education, or work experience, 21 from performing any gainful activity.” Sullivan v. Zebley, 493 U.S. 521, 530, 110 S. 22 Ct. 885, 107 L. Ed. 2d 967 (1990). If a claimant’s “impairment meets or equals one 23 of the listed impairments, the claimant is conclusively presumed to be disabled.” 24 Bowen v. Yuckert, 482 U.S. 137, 141, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987); see 25 also 20 C.F.R. § 404.1520(d). The claimant bears the burden of establishing a 26 prima facie case of disability under the listings. See Thomas v. Barnhart, 278 F.3d 27 947, 955 (9th Cir. 2002); see also 20 C.F.R. § 404.1520(a)(4)(iii). 28 1 An impairment meets a listing when all the medical criteria required of that 2 listing is satisfied. 20 C.F.R. § 404.1525(c)(3); Tackett v. Apfel, 180 F.3d 1094, 3 1099 (9th Cir. 1999) (“To meet a listed impairment, a claimant must establish that 4 he or she meets each characteristic of a listed impairment relevant to his or her 5 claim.’). “To equal a listed impairment, a claimant must establish symptoms, signs 6 and laboratory findings “at least equal in severity and duration” to the characteristics 7 of a relevant listed impairment. . . .” Id. at 1099 (quoting 20 C.F.R. § 404.1526(a)). 8 “If a claimant suffers from multiple impairments and none of them 9 individually meets or equals a listed impairment, the collective symptoms, signs and 10 laboratory findings of all of the claimant’s impairments will be evaluated to 11 determine whether they meet or equal the characteristics of any relevant listed 12 impairment.” Id. (citing 20 C.F.R. § 404.1526(a)). However, “[m]edical 13 equivalence must be based on medical findings,” and “[a] generalized assertion of 14 functional problems is not enough to establish disability at step three.’” Id. at 1100 15 (quoting 20 C.F.R. § 404.1526(a)) 16 2. Listings 1.02, 1.03 and 1.05 17 The relevant portions of Listings 1.02, 1.03 and 1.05 provide as follows:

18 1.02 Major dysfunction of a joint(s) (due to any cause): Characterized 19 by gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis, instability) and chronic joint pain and stiffness with 20 signs of limitation of motion or other abnormal motion of the affected 21 joint(s), and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected 22 joint(s). With: 23 A. Involvement of one major peripheral weight-bearing joint (i.e., hip, 24 knee, or ankle), resulting in inability to ambulate effectively, as defined 25 in 1.00B2b; 26 . . . . 27 28 1.03 Reconstructive surgery or surgical arthrodesis of a major weight- 1 1.00B2b, and return to effective ambulation did not occur, or is not 2 expected to occur, within 12 months of onset. . . . . 3

4 1.05 Amputation (due to any cause) of (B) One or both lower extremities at or above the tarsal region, with stump complications 5 resulting in medical inability to use a prosthetic device to ambulate 6 effectively, as defined in 1.00B2b, which have lasted or are expected to last for at least 12 months. 7

8 Listings 1.02, 1.03, 1.05. 9 Section 1.00(B)(2)(b), a necessary finding common to Listings 1.02, 1.03, and 10 1.05, defines “inability to ambulate effectively as follows: 11

12 (1) Definition. Inability to ambulate effectively means an extreme 13 limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously with the individual’s ability to independently initiate, 14 sustain, or complete activities. Ineffective ambulation is defined 15 generally as having insufficient lower extremity functioning (see 1.00J) to permit independent ambulation without the use of a hand-held 16 assistive device(s) that limits the functioning of both upper extremities. 17 (Listing 1.05C is an exception to this general definition because the individual has the use of only one upper extremity due to amputation of 18 a hand.) 19 (2) To ambulate effectively, individuals must be capable of sustaining a 20 reasonable walking pace over a sufficient distance to be able to carry 21 out activities of daily living. They must have the ability to travel without companion assistance to and from a place of employment or 22 school. Therefore, examples of ineffective ambulation include, but are 23 not limited to, the inability to walk without the use of a walker, two crutches or two canes, the inability to walk a block at a reasonable pace 24 on rough or uneven surfaces, the inability to use standard public 25 transportation, the inability to carry out routine ambulatory activities, such as shopping and banking, and the inability to climb a few steps at 26 a reasonable pace with the use of a single hand rail. The ability to walk 27 independently about one’s home without the use of assistive devices does not, in and of itself, constitute effective ambulation. 28 1 Listing 1.00(B)(2)(b). 2 3. Analysis 3 Here, the ALJ considered whether Plaintiff’s amputation and total knee 4 replacement met or equaled several Listings including those under 1.02, 1.03 and 5 1.05. [AR 20.] The ALJ concluded that they did not, citing reasons including that 6 Plaintiff “demonstrated the ability to ambulate effectively with the use of a 7 prosthetic device.” [AR 22.] In reaching this conclusion, the ALJ discussed the 8 inconsistencies between Plaintiff’s testimony stating that he was constricted to the 9 use of a wheelchair and essentially unable to use a prosthetic device with the record 10 evidence demonstrating that Plaintiff used a prosthetic device to ambulate. [AR 22.] 11 At the outset, the ALJ acknowledged that throughout the record Plaintiff used 12 both a wheelchair and a prosthetic device. The ALJ, however, noted that Plaintiff’s 13 intermittent use of a wheelchair was not for a medically necessary reason, but was a 14 result of Plaintiff’s incarceration. [AR 21.] The record indicates that from February 15 2014 through November 2015, Plaintiff used a wheelchair at times while he was 16 housed at Corcoran State Prison because the prison took away his prosthesis. [AR 17 24, 312.] In further considering Plaintiff’s use of a prosthesis, or lack thereof, the 18 ALJ also considered the statements of Vincente Bernabe, M.D. who performed an 19 orthopedic consultative examination in July 2016 and stated that Plaintiff “is 20 confined to a wheelchair” and “he cannot stand and walk.” [AR 366.] The ALJ 21 however discounted Dr. Bernabe’s opinion, in part, because he based his opinion on 22 Plaintiff’s statement that he did not have any prosthesis. [See AR 360 (“he does not 23 have any prosthesis”) and 366 (“does not have an above knee amputation prosthesis 24 and is confined to a wheelchair.”) The ALJ found that the subjective statement 25 provided to Dr. Bernabe by Plaintiff contradicted ample other evidence in the record 26 that Plaintiff both has and uses a prosthesis. [AR 24.] The ALJ noted that despite 27 Plaintiff’s statement to Dr. Bernabe and at the administrative hearing that he was 28 confined to a wheelchair, “the record indicates that [Plaintiff] was not medically 1 constricted to a wheelchair, and it was only upon [Plaintiff’s] request that his 2 physician ordered him a wheelchair. Similarly, by Plaintiff’s own account, he only 3 began the use of a wheelchair because his prosthetic device was stolen, and he only 4 remained in the wheelchair because he failed to have it replaced due to alleged 5 insurance issues.” [AR 24.] The ALJ also concluded that more recent evidence in 6 the record demonstrated that shortly before the administrative hearing “Dynamics 7 Orthotics & Prosthetics, Inc. fit [Plaintiff] for a customized transfermoral 8 prosthesis” and Plaintiff “reported upon his fitting that the socket fit well.” [AR 24.] 9 While Plaintiff challenges the above findings, Plaintiff’s arguments fail for 10 several reasons. First, Plaintiff points to a 2016 medical record to argue that he was 11 unable to ambulate effectively using his left-leg prosthesis once he had surgery on 12 his right knee. Specifically, Plaintiff contends that the record demonstrates that 13 “one month after his right knee replacement” he fell while trying to pull on his left- 14 leg prosthesis. [AR 565.] However, Plaintiff does not discuss how his most recent 15 medical records, many of which were addressed by the ALJ, show an inability to 16 ambulate effectively. Although the 2016 medical record identified by Plaintiff notes 17 that he opened his surgical wound when he fell in 2016 (AR 565 and 617), more 18 recently, Plaintiff noted that his right knee felt stable and his physician 19 recommended that he “try to use a prosthesis on the left leg” in February 2017. [AR 20 721]. On March 20, 2017, he was seen at the hospital for abdominal pains, but his 21 physical examination was otherwise unremarkable: he had a normal range of 22 motion, no tenderness in his extremities, and his “right total knee replacement 23 wound appeared to be clean, dry and intact,” and his “left above-the-knee 24 amputation also appeared to be a ‘well healed wound.’” [AR 436, 486, 830, and 25 844.] 26 The ALJ evaluated this evidence, noting Plaintiff’s former challenges with the 27 use of his prosthetic device, but ultimately relied on the evidence demonstrating that 28 “immediately prior to the hearing [Plaintiff] was fitted for customized transfemoral 1 prosthesis without any further difficulties reported.” [AR 21.] The record further 2 indicated that the reason Plaintiff underwent total knee replacement surgery in 3 November 2016 was “for the purpose of walking with a prosthesis on his left leg.” 4 [AR 686.] Following that surgery and subsequent physical therapy, care providers 5 fitted Plaintiff for bilateral orthopedic shoes in early 2018 demonstrating that he had 6 continued to walk using both his right knee and his prosthesis on his left leg 7 following his 2016 surgery. [AR 1031.] Thus, the isolated evidence presented by 8 Plaintiff fails to demonstrate that his brief problems walking with his prosthesis after 9 knee surgery resulted in an extreme limitation that lasted consistently for twelve 10 months. See Connors v. Colvin, 656 Fed.Appx. 808, 810 (9th Cir. 2016) 11 (unpublished) (in the context of the rheumatoid arthritis listing, which references § 12 1.00B.2.b definition of “inability to ambulate effectively”: “Because [claimant’s] 13 walker was prescribed for ‘periodic use’ and because [claimant] claims to need the 14 walker only ‘at times,’ she cannot show an ‘extreme limitation of the ability to 15 walk’”). 16 Second, the Court is not persuaded by the crux of Plaintiff’s latter argument 17 that the ALJ should have adopted Dr. Bernabe’s opinion and/or Plaintiff’s self- 18 reports that he is incapable of ambulating without a wheelchair. To warrant a 19 finding of disability at Step Three of the sequential disability evaluation process, the 20 impairment “must result from anatomical, physiological, or psychological 21 abnormalities which can be shown by medically acceptable clinical and laboratory 22 diagnostic techniques.” 20 C.F.R. § 404.1508. Furthermore, it must be established 23 by medical evidence “consisting of signs, symptoms, and laboratory findings.” 20 24 C.F.R. § 404.1508; see also Social Security Ruling (“SSR”) 96-8p, 1996 SSR 25 LEXIS 5, *3-4, 1996 WL 374184, at *2 (determination that is conducted at step 26 three must be made on basis of medical factors alone). An impairment meets a listed 27 impairment “only when it manifests the specific findings described in the set of 28 medical criteria for that listed impairment.” SSR 83-19, 1983 SSR LEXIS 24, *3, 1 1983 WL 31248, at *2. 2 As set forth by the ALJ, the record lacks medical evidence demonstrating that 3 Plaintiff did not have any prosthesis and that his impairments resulted in an inability 4 to ambulate using his prosthesis. The ALJ properly rejected the only medical 5 opinion indicating that Plaintiff was confined to a wheelchair. Thus, neither Dr. 6 Bernabe’s opinion nor Plaintiff’s subjective complaints constitutes objective 7 medical evidence of an inability to ambulate effectively. See Veniale v. Colvin, 8 2014 U.S. Dist. LEXIS 39487, 2014 WL 1246135, at *2 (C.D. Cal. Mar. 24, 2014) 9 (affirming ALJ’s finding that claimant was not disabled under Listing 1.02(A) 10 where the ALJ found there was no medical evidence “to establish that [claimant’s] 11 knee osteoarthritis was sufficiently serious to require the use of a wheelchair or any 12 other assistive device”); Hamilton v. Astrue, 2010 U.S. Dist. LEXIS 99014, 2010 13 WL 3748744, at *7 (C.D. Cal. Sept. 22, 2010) (“Plaintiff’s self-reports of symptoms 14 and functional limitations based on hip and joint pain cannot suffice to raise the 15 severity of her related impairment to that of Listing 1.02(A).”). 16 Finally, Plaintiff has not shown that he was incapable of sustaining a 17 reasonable walking pace over a sufficient distance to be able to carry out activities 18 of daily living, i.e., the regulatory definition of effective ambulation. As the ALJ 19 noted, Plaintiff’s daily activities evidenced his ability to ambulate effectively. The 20 ALJ reiterated Plaintiff’s testimony regarding “his ability to use public 21 transportation to travel places for shopping and other daily needs, which is an 22 example of the ability to ambulate effectively.” [AR 21.] Because the record fails 23 to establish that Plaintiff was unable to ambulate effectively for a medical reason for 24 a 12-month period, he has not demonstrated that his impairments are equivalent to a 25 listed impairment. As it is Plaintiff’s burden to establish that he equals a Listing, 26 Plaintiff’s request for remand for a medical expert to provide an “updated” exam 27 and analyze all of the evidence with the hope of establishing that a combination of 28 his impairments meets or equals a Listing is insufficient to meet this burden. 1 Given Plaintiff’s demonstrated ability to ambulate effectively with a 2 prosthetic device, Plaintiff’s severe impairment does not satisfy Listings 1.02, 1.03 3 or 1.05 and the ALJ’s step three finding is supported by substantial evidence and is 4 free of legal error. 5 B. Substantial Evidence Supports the ALJ’s Step Four Finding 6 As a final matter, Plaintiff argues that the ALJ’s finding that he could perform 7 his past relevant work is not supported by substantial evidence. [Pl.’s Br. at 6-7.] 8 Specifically, Plaintiff argues that because the ALJ failed to credit his subjective 9 testimony that he is “wheelchair bound” and cannot stand or walk “as found by the 10 orthopedic Consultative Examiner” the ALJ erroneously found that he could 11 perform his past relevant work. (Pl.’s Br. at 6.) The Court again disagrees with 12 Plaintiff’s position. 13 Plaintiff’s contention that the ALJ’s step four finding is flawed essentially 14 restates his argument that the ALJ improperly rejected his subjective statements 15 made to the consultative examiner. Plaintiff does not argue that the hypothetical 16 posed to the VE failed to include all the limitations found in his RFC, instead 17 Plaintiff contends that he “cannot stand or walk per the orthopedic” evaluation and 18 therefore the ALJ should have questioned the vocational expert on the preclusion of 19 his past relevant work “due to an inability to stand and walk.” (Pl. Br. at 6.) 20 However, an ALJ is not obliged to accept as true limitations alleged by Plaintiff and 21 may decline to include such limitations in the vocational expert’s hypothetical if 22 they are not supported by sufficient evidence. See Martinez v. Heckler, 807 F.2d 23 771 (9th Cir. 1986); see also Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 24 2005); Hall v. Colvin, No. CV-13-0043, 2014 U.S. Dist. LEXIS 45006, at *24-25 25 (E.D. Wash. Mar. 31, 2014)(“A claimant fails to establish that a Step 5 26 determination is flawed by simply restating argument that the ALJ improperly 27 discounted certain evidence, when the record demonstrates the evidence was 28 properly rejected.”) 1 As discussed above, the ALJ rejected Plaintiff's subjective statements that he 2 || 1s restricted to a wheelchair and that he cannot stand or walk based on ample 3 || evidence in the record to the contrary. The ALJ then formulated an RFC based on 4 || the limitations he found credible and supported by the objective evidence. Because 5 || substantial evidence supports the ALJ’s RFC finding, the hypothetical posed to the 6 || VE properly encompassed all of Plaintiff's limitations, and in turn, the ALJ did not 7 || err in concluding that Plaintiff can perform his past relevant work. See Stubbs- 8 || Danielson v. Astrue, 539 F.3d 1169, 1175-76 (9th Cir. 2008) (“In arguing the ALJ’s 9 || hypothetical was incomplete, [the claimant] simply restates her argument that the 10 || ALJ’s RFC finding did not account for all her limitations because the ALJ 11 |} improperly discounted her testimony and the testimony of medical experts. As 12 || discussed above, we conclude the ALJ did not.”); Osenbrock v. Apfel, 240 F.3d 13 {| 1157, 1165 (9th Cir. 2001) (“It is, however, proper for an ALJ to limit a 14 || hypothetical to those impairments that are supported by substantial evidence in the 15 || record”). 16 Vv. CONCLUSION 17 For all of the foregoing reasons, IT IS ORDERED that the decision of the 18 || Commissioner finding Plaintiff not disabled is AFFIRMED. 19 20 IT IS SO ORDERED. 21 22 || DATED: July 6, 2021 73 GAIL J. STANDISH UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 12