Dennis Clauson v. Andrew Saul

Opinion

- CENTRAL DISTRICT OF CALIFORNIA – SOUTHERN DIVISION DENNIS C,1 Case No. SACV 19-02061-AS

Plaintiff, MEMORANDUM OPINION AND ORDER v. AFFIRMING COMMISSIONER

ANDREW M. SAUL, Commissioner of Social Security, Defendant.

For the reasons discussed below, IT IS HEREBY ORDERED that, pursuant to Sentence Four of 42 U.S.C. § 405(g), the Commissioner’s decision is affirmed.

1 Plaintiff’s name is partially redacted in accordance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States.

On October 29, 2019, Plaintiff filed a Complaint Seeking review of the Commissioner’s denial of Plaintiff’s application for disability insurance benefits (“DIB”). (Dkt. No. 1). The parties have consented to proceed before the undersigned United States Magistrate Judge. (Dkt. Nos. 13-14). On March 25, 2020, Defendant filed an Answer along with the Administrative Record (“AR”). (Dkt. Nos. 17-18). On June 18, 2020, the parties filed a Joint Stipulation (“Joint Stip.”) setting forth their respective positions regarding Plaintiff’s claim. (Dkt. No. 19). The Court has taken this matter under submission without oral argument. See C.D. Cal. L.R. 7-15. BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION On February 29, 2016, Plaintiff, formerly employed as a sales associate at Wal-Mart2 (see AR 94, 96-97), filed an application for DIB, alleging a disability onset date of February 16, 2016.3 (AR

2 Plaintiff worked as a courier from July 1998 through January 2011, before working at Wal-Mart in 2013 as a sales associate, and subsequently working as a sales associate in Wal- Mart’s claims department and, in October 2015, a sales associate in Wal-Mart’s sporting goods department. (AR 88, 90, 94, 96). Plaintiff returned to Wal-Mart in 2017 in the position of host whose duties included greeting customers. (AR 97). 3 Plaintiff had previously filed an application for DIB on February 20, 2012 and was found to be disabled from March 7, 2011 through October 1, 2013. (See AR 123-134). 234-35). Plaintiff’s applications were denied initially on April 5, 2016 (AR 156-59), and on reconsideration on June 28, 2016 (AR 165-69). On August 1, 2018, Plaintiff, represented by counsel, testified at a hearing before Administrative Law Judge (“ALJ”) Kenneth Ball. (See AR 76, 79-86, 88-98, 101). The ALJ also heard testimony from vocational expert Kathleen Spencer. (See AR 86-87, 89, 97-100). On August 15, 2018, the ALJ issued a decision denying Plaintiff’s applications. (See AR 25-34). Applying the five-step sequential process, the ALJ found at step one that Plaintiff had engaged in substantial gainful activity (“SGA”) from June 29, 1017 through January 16, 2018 and denied Plaintiff’s claim for that period. (AR 28). However, the ALJ found that Plaintiff had not engaged in SGA from Plaintiff’s alleged onset date of February 16, 2016 through June 28, 2017, and from January 17, 2018 through the date of the ALJ’s decision, August 15, 20184. (Id.). At step two, the ALJ found that Plaintiff had the following severe impairment: lumbar spine degenerative disc disease, status post-surgery on February 16, 2016. (AR 28). 4 Plaintiff’s claim for disability benefits are primarily concerned with the disability period between February 16, 2016 to June 28, 2017. (See Joint Stip. at 4). At step three, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that meets or medically equals the severity of any listing found in 20 C.F.R. Part 404, Subpart P, Appendix 1.5 (AR 28). The ALJ then found that Plaintiff had the Residual Functional Capacity (“RFC”)6 to perform light work7 with the following limitation: “occasionally perform postural activities.” (AR 29). At step four, the ALJ determined that Plaintiff was able to perform past relevant work as a “deliverer, outside” and sales attendant as those jobs are generally performed, but not as actually performed by plaintiff, past relevant work as a host8 both as actually and generally performed, considering Plaintiff’s RFC with the physical and mental demands of Plaintiff’s past work experience. (AR 33). Accordingly, the ALJ found that Plaintiff had not been under a disability, as defined in the Social Security 5 The ALJ specifically considered whether Plaintiff’s medically determinable impairment meets the requirements of Listing 1.04 (disorders of the spine) and concluded that it did not. (AR 28). 6 A Residual Functional Capacity is what a claimant can still do despite existing exertional and nonexertional limitations. See 20 C.F.R § 404.1545(a)(1). 7 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.” See 20 C.F.R. § 404.1567(b). 8 The ALJ noted that Plaintiff was employed as a host from June 29, 2017 to January 16, 2018 and therefore this position was only considered past relevant work since January 17, 2018. Act, from the alleged disability onset, February 16, 2016, to August 15, 2018, the date of the decision. (Id.). On September 4, 2019, the Appeals Council denied Plaintiff’s request to review the ALJ’s decision. (See AR 1-6). Plaintiff now seeks judicial review of the ALJ’s decision, which stands as the final decision of the Commissioner. See 42 U.S.C. §§ 405(g), 1383(c). This Court reviews the Commissioner’s decision to determine whether the findings are supported by substantial evidence and whether proper legal standards were applied. 42 U.S.C § 405(g); Brewes v. Commissioner, 682 F.3d 1157, 1161 (9th Cir. 2012). “Substantial evidence” is more than a mere scintilla, but less than a preponderance. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). To determine whether substantial evidence supports a finding, “a court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner’s] conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001)(internal quotation omitted). As a result, “[i]f the evidence can support either affirming or reversing the ALJ’s conclusion, [a court] may not substitute [its] judgment for that of the ALJ.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Plaintiff contends that the ALJ erred in failing to properly evaluate Plaintiff’s subjective symptom testimony. (See Joint Stip. at 4-9; 20-23). As set forth above, Plaintiff is primarily concerned with the period of disability between February 2016 to June 2017. (Joint Stip. at 4). After consideration of the record as a whole, the Court finds that the Commissioner’s findings are supported by substantial evidence and are free from legal error.9 A. The ALJ Provided Clear and Convincing Reasons for Discrediting Plaintiff’s Subjective Symptom Testimony Plaintiff asserts that the ALJ did not provide clear and convincing reasons for rejecting Plaintiff’s subjective symptom testimony. (See Joint Stip. at 4-9; 20-23). Defendant asserts that the ALJ provided proper reasons for finding Plaintiff’s 9 The harmless error rule applies to the review of administrative decisions regarding disability. McLeod v. Astrue, 640 F.3d 881, 886–88 (9th Cir. 2011); see Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (an ALJ’s decision will not be reversed for errors that are harmless). subjective testimony not fully credible. (See Joint Stip. at 9- 23).10 1. Legal Standard When assessing a claimant’s credibility regarding subjective pain or intensity of symptoms, the ALJ must engage in a two-step analysis. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). First, the ALJ must determine if there is medical evidence of an impairment that could reasonably produce the symptoms alleged. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). “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.” Id. (emphasis in original) (citation omitted). “Nor must a claimant produce objective medical evidence of the pain or fatigue itself, or the severity thereof.” Id. (citation omitted). If the claimant satisfies this first step, and there is no evidence of malingering, the ALJ must provide specific, clear and convincing reasons for rejecting the claimant’s testimony about the severity of his or her symptoms. Trevizo, 871 F.3d at 678 (citation omitted); see also Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) (“[T]he ALJ may reject the claimant’s testimony regarding the severity of her symptoms only if he makes specific

findings stating clear and convincing reasons for doing so.”); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006) (“[U]nless an ALJ makes a finding of malingering based on affirmative evidence thereof, he or she may only find an applicant not credible by making specific findings as to credibility and stating clear and convincing reasons for each.”). “This is not an easy requirement to meet: The clear and convincing standard is the most demanding required in Social Security cases.” Garrison, 759 F.3d at 1015 (citation omitted). Where, as here, the ALJ finds that a claimant suffers from a medically determinable physical or mental impairment that could reasonably be expected to produce the alleged symptoms, the ALJ must evaluate “the intensity and persistence of those symptoms to determine the extent to which the symptoms limit an individual’s ability to perform work-related activities for an adult.” Soc. Sec. Ruling (“SSR”) 16-3p, 2017 WL 5180304, at *3.11 SSR 16–3p superseded SSR 96–7p and eliminated the term “credibility” from the Agency’s sub-regulatory policy. However, the Ninth Circuit has noted that SSR 16–3p: makes clear what [the Ninth Circuit’s] precedent already required: that assessments of an individual’s testimony

11 SSR 16-3p, which superseded SSR 96-7p, is applicable to this case, because SSR 16-3p, effective on March 28, 2016, was in effect at the time of the Appeal Council’s September 4, 2019 denial of Plaintiff’s request for review. Nevertheless, the regulations on evaluating a claimant’s symptoms, including pain, see 20 C.F.R. § 404.1529, have not changed. by an ALJ are designed to “evaluate the intensity and persistence of symptoms after the ALJ finds that the individual has a medically determinable impairment(s) that could reasonably be expected to produce those symptoms, and not to delve into wide-ranging scrutiny of the claimant’s character and apparent truthfulness. Trevizo, 871 F.3d at 679 n.5 (quoting SSR 16–3p) (alterations omitted). In discrediting the claimant’s subjective symptom testimony, the ALJ may consider: “ordinary techniques of credibility evaluation, such as . . . prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and the claimant’s daily activities.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citation omitted). Inconsistencies between a claimant’s testimony and conduct, or internal contradictions in the claimant’s testimony, also may be relevant. Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014); Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). In addition, the ALJ may consider the observations of treating and examining physicians regarding, among other matters, the functional restrictions caused by the claimant’s symptoms. Smolen, 80 F.3d at 1284; accord Burrell, 775 F.3d at 1137. However, it is improper for an ALJ to reject subjective testimony based “solely” on its inconsistencies with the objective medical evidence presented. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (citation omitted). The ALJ must make a credibility determination with findings that are “sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit claimant’s testimony.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (citation omitted); see Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (“A finding that a claimant’s testimony is not credible must be sufficiently specific to allow a reviewing court to conclude the adjudicator rejected the claimant’s testimony on permissible grounds and did not arbitrarily discredit a claimant’s testimony regarding pain.”) (citation omitted). Although an ALJ’s interpretation of a claimant’s testimony may not be the only reasonable one, if it is supported by substantial evidence, “it is not [the court’s] role to second-guess it.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 2. Plaintiff’s Subjective Statements and Testimony Plaintiff had lumbar fusion surgery at L5-S1 on February 16, 2016. (AR 345). On May 21, 2016, Plaintiff submitted an Exertion Questionnaire, providing the following information: (1) the symptoms preventing Plaintiff from carrying out normal workday activities were “pain in lower back when standing walking or sitting for longer than 20 to 30 minutes at a time, lack of sleep due to pain when pains meds wear off + weakness + fatigue from normal activities + chores” (AR 282) (2) light cooking, washing dishes, light sweeping or vacuuming, small loads of laundry and walking in nearby parks were among the daily activities that caused weakness and fatigue after ten minutes; (3) Plaintiff experienced lower back pain while standing, walking or light lifting and pushing or pulling objects less than ten pounds and could climb one flight of stairs slowly while using the handrail and a cane, drive about 20 to 30 minutes at a time, between 5 to 15 miles with stops to rest, wash a car, check the car’s fluid levels and tire pressure once or twice per month, and do light yard word for 10 to 20 minutes at a time, but these activities also caused lower back pain (AR 283); (4) Plaintiff needed to rest or nap 2-3 times a day, wore a back brace for lower back support and used a cane while walking; and (5) Plaintiff took the following medications: 300 mg of Gabapentin 3 times per day, 10 mg of Hydrocodone with 325 mg of Acetaminophen 2 times per day, and 10 mg Cyclobenzaprine and 15 mg of morphine at night. (AR 284). On June 10, 2016, Warren Yu, M.D., an orthopedic consultant examiner, reported that Plaintiff was happy with the results of his surgery and noted significant improvement. (AR 494). Upon examination, Dr. Yu observed that Plaintiff was able to move “freely in and out of the office” without the use of an assistive device, had a normal gait (AR 494-95), and found that Plaintiff was able to push and pull without limitations, sit, walk and stand for six hours out of an eight hour day with appropriate breaks. (AR 498). Progress notes from Tien T. Nguyen, M.D., who performed Plaintiff’s surgery, indicated that Plaintiff generally used a brace between March 2016 through June 2017 and only used a cane through June 2016. (See AR 479 [March 3, 2016], 482 [June 6, 2016], 566 [August 31, 2016], 569 [November 30, 2016], 571-72 [February 15, 2017]). Plaintiff complained of pain, numbness and tingling radiating into his right lower extremity. (See AR 479 [March 3, 2016], 566 [August 31, 2016], 570-71 [February 15, 2017]). In June 2017, Plaintiff reported only minimal pain with prolonged activity. (See AR 572, 574-575). At the August 1, 2018 hearing, Plaintiff testified to the following: (1) he was currently taking both Cyclobenzaprine, a muscle relaxer to treat muscle spasms, and extended release morphine to help him sleep through the night without pain ; (2) after the surgery, he could only manage to sit for 30 to 45 minutes without having to lie down and would lie down on and off between 8 to 10 hours daily; (3) he has had no treatment since his surgery, and was able to resume activity after the one-year mark of his surgery in February 2016; (4) currently, his daily activities consist of watching a lot of TV, lying down, vacuuming, washing dishes and grocery shopping and his chores and errands do not take more than two hours per day; (5) he has difficulty driving in excess of 45 minutes due to lower back pain; and (6) Plaintiff estimated he could currently be on his feet for up to four hours a day. (AR 84-86). 3. The ALJ’s Credibility Findings The ALJ found Plaintiff’s testimony about the intensity, persistence and limiting effects of his pain and symptoms to be inconsistent with the medical evidence and other evidence in the record, stating: In sum, the above-specified residual functional capacity reflects an analysis of all of the relevant evidence in the record, which does not generally support the claimant’s statements regarding the alleged intensity, persistence, and limiting effects of his symptoms. Accordingly, the residual functional capacity determined in this decision indicates the most that the claimant could do despite his impairment-related limitations. (AR 32). 4. Analysis As set forth below, the ALJ provided specific, clear and convincing reasons, supported by evidence in the record, to discredit Plaintiff’s complaints of pain and other symptoms. a. Improvement The ALJ found that Plaintiff’s symptoms improved following surgery. (See AR 29). An ALJ can properly reject a plaintiff’s testimony where there is medical evidence of improvement after a surgery. See Fletcher-Silvas v. Saul, 791 Fed. Appx. 647, 649 (9th Cir. 2019); see also Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006)(evidence that a claimant's condition is improving can support the ALJ's decision if “the severity of the problem had decreased sufficiently to enable him to engage in gainful activity.” The ALJ noted that four months after surgery, Plaintiff told Dr. Yu, the consultative examiner that he was happy with the results of his surgery and noted significant improvement despite reporting residual back and gluteal pain. (AR 30). Although Plaintiff was taking pain medication and wearing a back brace, he had a normal gait and did not use any assistive device to ambulate. (See AR 30, citing AR 494-95). The ALJ also noted that although a healed surgical scar was evident when Plaintiff’s lumbar spine was examined, there was no significant tenderness, spasm, or atrophy, the straight leg raising was negative and the neurological examination was “wholly unremarkable.12” (See AR 30, citing AR 496-97). The AlJ also found that Dr. Nguyen, who saw Plaintiff approximately every two to three months from March 2016 through 12 The ALJ noted that because Plaintiff’s surgeon had advised him not to bend, Plaintiff’s range of motion was not evaluated. (See AR 30, citing AR 496). June 2017, consistently indicated that Plaintiff was doing well. (See AR 30, citing AR 479 [March 3, 2016], 482 [June 6, 2016], 567 [August 31, 2016], 570 [November 30, 2016], 572 [February 15, 2017], 575 [June 12, 2017]). Although Plaintiff claims that the ALJ’s findings regarding medical improvement were not supported by the three CT scans showing that Plaintiff’s spine had not yet fused13 (see Joint Stip. at 4, citing AR 516-17, 584), as Defendant points out, the partial fusion did not preclude Dr. Nguyen from finding that Plaintiff could work with certain restrictions – namely, that could lift up to 25 pounds (see AR 572 [February 25, 2017] and later up to 50 pounds (AR 575 [June 12, 2017]; see Joint Stip. at 16-17). To the extent the partial fusion impacted Plaintiff’s symptoms, Dr. Nguyen opined that it was caused by Plaintiff’s continued smoking14. (See AR 30, citing 479, 482, 566, 570-71, 575, 577-84). b. Objective Medical Evidence The ALJ also found that Plaintiff’s testimony about the intensity and limiting effects of his symptoms was not supported 13 To the extent there were conflicts in the record, it was the ALJ’s duty to resolve any such conflicts. See Diedrich v. Berryhill, 874 F.3d 634, 638 (9th Cir. 2017). (“The ALJ is responsible for studying the record and resolving any conflicts or ambiguities in it.”); see also DeLorme v. Sullivan, 924 F.2d 634, 638 (9th Cir. 1991) (“The ALJ has a duty to develop the record.”). 14 See Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (“Impairments that can be controlled effectively with medication are not disabling for the purpose of determining eligibility for SSI benefits.”). by the objective medical evidence. (See AR 30). See Burch v. Barnhart , 400 F.3d 676, 681 (9th Cir. 2005) (“Although lack of medical evidence cannot form the sole basis for discounting pain testimony, it is a factor that the ALJ can consider in his credibility analysis.”); Rollins v. Massanari , 261 F.3d 853, 857 (9th Cir. 2001)(“While subjective pain testimony cannot be rejected on the sole ground that it is not fully corroborated by objective medical evidence, the medical evidence is still a relevant factor in determining the severity of the claimant’s pain and its disabling effects.”); SSR 16-3p, *5 (“objective medical evidence is a useful indicator to help make reasonable conclusions about the intensity and persistence of symptoms, including the effects those symptoms may have on the ability to perform work-related activities”). As the ALJ pointed out, the medical records concerning Plaintiff’s back issues reflected only minimal, static examination findings and consistently indicated that Plaintiff was doing well. (See AR 30, citing AR 479 [March 3, 2016], 482 [June 6, 2016], 567 [August 31, 2016], 570 [November 30,2016], 572 [February 15, 2017], 574 [June 12, 2017]). Plaintiff’s subjective testimony was also not supported by the opinions of his various doctors who found that Plaintiff was capable of working, including B. Vaghaiwalla, M.D., a State Agency medical consultant, (see AR 134-42 [April 4, 2016]), Warren Yu, M.D., a board certified orthopedic surgeon, (see AR 494- 98 [June 10, 2016]), Karen Sarpolis, MD, a State Agency medical consultant, (see AR 144-54 [June 27, 2016]), and Dr. Nguyen, Plaintiff’s treating doctor (see AR 572 [February 25, 2017], 575 [June 12, 2017]). However, the objective medical record was not the sole basis for the ALJ’s rejection of Plaintiff’s subjective symptom testimony. As set forth above, the ALJ also found that the improvement in Plaintiff’s condition following surgery was inconsistent with Plaintiff’s claims regarding his inability to work due to pain and other symptoms. The Court finds that the ALJ offered clear and convincing reasons, supported by substantial evidence in the record, for discounting Plaintiff’s statements regarding the limiting effects of his pain and symptoms. Accordingly, no remand is required. For the foregoing reasons, the decision of the Commissioner is AFFIRMED. LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: August 5, 2020 /s/ _________ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE