Downyell Johnson v. Andrew Saul

• Court: District Court, C.D. California
• Decided: March 31, 2022
• Docket: 2:20-cv-07312
• Status: Unknown

Opinion

Case 2:20-cv-07312-SP Document 25 Filed 03/31/22 Page 1 of 11 Page OID #:954

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DOWNYELL, J., ) Case No. 2:20-cv-07312-SP ) 12 Plaintiff, ) ) 13 v. ) MEMORANDUM OPINION AND ) ORDER 14 ) KILOLO KIJAZAKI, Acting ) 15 Commissioner of Social Security ) Administration, ) 16 ) Defendant. ) 17 ) ) 18 19 I. 20 INTRODUCTION 21 On August 13, 2020, plaintiff Downyell J. filed a complaint against 22 defendant, the Commissioner of the Social Security Administration 23 (“Commissioner”), seeking a review of a denial of supplemental security income 24 (“SSI”). The parties have fully briefed the issue in dispute, and the court deems 25 the matter suitable for adjudication without oral argument. 26 Plaintiff presents one disputed issue for decision, whether the residual 27 functional capacity (“RFC”) determination was supported by substantial evidence. 28 1 Case 2:20-cv-07312-SP Document 25 Filed 03/31/22 Page 2 of 11 Page ID #:955

1 Memorandum in Support of Plaintiff’s Complaint (“P. Mem.”) at 2; see 2 Defendant’s Memorandum in Support of Answer (“D. Mem.”) at 3. 3 Having carefully studied the parties’ memoranda, the Administrative Record 4 (“AR”), and the decision of the administrative law judge (“ALJ”), the court 5 concludes substantial evidence supported the ALJ’s RFC determination, and a 6 misstatement of the evidence by the ALJ was harmless. Consequently, the court 7 affirms the decision of the Commissioner denying benefits. 8 II. 9 FACTUAL AND PROCEDURAL BACKGROUND 10 Plaintiff was 30 years old on his alleged disability onset date, and appears to 11 have attended at least some high school. AR at 45, 96. Plaintiff has past relevant 12 work as a labeler. AR at 54. 13 On March 22, 2017, plaintiff filed an application for SSI, alleging a 14 disability onset date of December 1, 2007. AR at 96. Plaintiff claimed he suffered 15 from severe back problems, leg pain, shoulder pain, lower back pain, neck pain, 16 seizures, and an irregular heart beat. AR at 96. The Commissioner denied 17 plaintiff’s application, after which he requested a hearing.1 AR at 115, 125. 18 On September 10, 2019, plaintiff, represented by counsel, appeared and 19 testified at the hearing. AR at 40-53. Kentrell Pittman, a vocational expert, also 20 testified. AR at 53-58. On October 8, 2019, the ALJ issued a decision denying 21 plaintiff’s claim for benefits. AR 15-32. 22 Applying the well-known five-step sequential evaluation process, the ALJ 23 found, at step one, that plaintiff had not engaged in substantial gainful activity 24 since March 22, 2017, his application date. AR at 18. 25 26 1 Plaintiff also filed an application for disability insurance benefits on March 27 22, 2017, which was also denied, but plaintiff thereafter pursued only his SSI 28 claim. See AR at 77, 125, 150. 2 Case 2:20-cv-07312-SP Document 25 Filed 03/31/22 Page 3 of 11 Page ID #:956

1 At step two, the ALJ determined plaintiff had the following severe 2 impairments: seizure disorder; degenerative disc disease of the lumbar and thoracic 3 spine with stable compression fractures; and a mental impairment variously 4 diagnosed to include schizoaffective disorder, psychotic disorder, major depression 5 with psychotic features, and post-traumatic stress disorder. Id. 6 At step three, the ALJ found plaintiff’s impairments did not meet or 7 medically equal one of the listed impairments set forth in 20 C.F.R. part 404, 8 Subpart P, Appendix 1. Id. 9 The ALJ then assessed plaintiff’s RFC,2 and determined he had the RFC to 10 perform light work with the following limitations: climbing of ramps and stairs 11 must be limited to occasionally, while the climbing of ladders, ropes, or scaffolds 12 must never be required; balancing, stooping (bending at the waist), kneeling, 13 crouching (bending at the knees), and crawling must be limited to occasionally; 14 noise must be limited to no greater than moderate level, such as the level of noise 15 associated with a normal office setting; within the assigned work area there must 16 be less than occasional (seldom to rare) exposure to fumes, odors, dust, gases, poor 17 ventilation, and hazards such as machinery and heights; assigned work must be 18 limited to simple, unskilled tasks with a specific vocational profile of one or two, 19 learned in 30 days or less or by a brief demonstration, and with minimal change in 20 the tasks assigned; tasks must be performed primarily independently with no more 21 than occasional, brief, intermittent work related contact with co-workers and 22 supervisors, and no contact with the public. AR at 21. 23 24 2 Residual functional capacity is what a claimant can do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155- 26 56 n.5-7 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the 27 claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 28 n.2 (9th Cir. 2007). 3 Case 2:20-cv-07312-SP Document 25 Filed 03/31/22 Page 4 of 11 Page ID #:957

1 The ALJ found, at step four, that plaintiff was capable of performing his past 2 relevant work of a labeler. AR at 29. 3 At step five, the ALJ alternatively found plaintiff could perform other jobs 4 that existed in significant numbers in the national economy such as marker, mail 5 clerk, and router. AR at 30-31. The ALJ additionally found plaintiff could 6 perform the jobs of addresser, charge account clerk, and document preparer if 7 plaintiff’s RFC exertional level were changed from light to sedentary with the 8 same other limitations. AR at 31. Consequently, the ALJ concluded plaintiff did 9 not suffer from a disability as defined by the Social Security Act. AR at 31-32. 10 Plaintiff filed a timely request for review of the ALJ’s decision, which was 11 denied by the Appeals Council. AR at 1-3. The ALJ’s decision stands as the final 12 decision of the Commissioner. 13 III. 14 STANDARD OF REVIEW 15 This court is empowered to review decisions by the Commissioner to deny 16 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 17 Administration must be upheld if they are free of legal error and supported by 18 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 19 (as amended). But if the court determines the ALJ’s findings are based on legal 20 error or are not supported by substantial evidence in the record, the court may 21 reject the findings and set aside the decision to deny benefits. Aukland v. 22 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 23 1144, 1147 (9th Cir. 2001). 24 “Substantial evidence is more than a mere scintilla, but less than a 25 preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such 26 “relevant evidence which a reasonable person might accept as adequate to support 27 a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 28 4 Case 2:20-cv-07312-SP Document 25 Filed 03/31/22 Page 5 of 11 Page ID #:958

1 F.3d at 459. To determine whether substantial evidence supports the ALJ’s 2 finding, the reviewing court must review the administrative record as a whole, 3 “weighing both the evidence that supports and the evidence that detracts from the 4 ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be 5 affirmed simply by isolating a specific quantum of supporting evidence.’” 6 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 7 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 8 the ALJ’s decision, the reviewing court “‘may not substitute its judgment for that 9 of the ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 10 1992)). 11 IV. 12 DISCUSSION 13 Plaintiff argues the ALJ’s RFC determination that plaintiff could perform 14 light work with various limitations, including limiting plaintiff to only occasional 15 postural activities, was erroneous because it failed to adequately address the 16 evidence regarding plaintiff’s use of an assistive device. P. Mem. at 4-5. 17 Specifically, plaintiff contends the ALJ failed to properly consider plaintiff’s 18 medical records showing he used a cane, and his own testimony indicating his 19 doctor prescribed him a walker. Id. 20 A claimant’s RFC is what one can “still do despite [his or her] limitations.” 21 20 C.F.R. § 416.945(a)(1)-(2). The ALJ reaches an RFC determination by 22 reviewing and considering all of the relevant evidence, including non-severe 23 impairments. Id. It is an administrative finding, not a medical opinion. 20 C.F.R. 24 § 404.1527(d)(1). The RFC takes into account both exertional limitations and 25 non-exertional limitations. The RFC assessment must contain “a narrative 26 discussion describing how the evidence supports each conclusion, citing specific 27 medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily 28 5 Case 2:20-cv-07312-SP Document 25 Filed 03/31/22 Page 6 of 11 Page ID #:959

1 activities, observations).” See Social Security Ruling (“SSR”) 96-8P. The ALJ 2 must also explain how he or she resolved material inconsistencies or ambiguities in 3 the record. Id. 4 Plaintiff argues the ALJ’s RFC determination was erroneous because it 5 failed to adequately address the evidence regarding plaintiff’s use of a cane. 6 P. Mem. at 4-5. In pertinent part, the ALJ determined plaintiff had the RFC to 7 perform light work, but limited to only occasional climbing of ramps and stairs, 8 and no climbing of ladders, ropes, or scaffolds. AR at 21. In reaching this 9 determination, the ALJ discussed plaintiff’s medical records, prior disability 10 reports, and plaintiff’s own testimony. See AR at 21-23. The ALJ determined the 11 objective physical examinations found greater functional capacity than alleged. 12 AR at 23. The ALJ noted plaintiff was observed using a cane during an 13 examination in July 2018, and “was observed using one by multiple sources 14 throughout the period at issue.” Id. But the ALJ also found there was no evidence 15 a doctor prescribed plaintiff a walker, and minimal evidence he was prescribed a 16 cane as a medical necessity. Id. The ALJ noted plaintiff testified that his treating 17 physician Dr. John Uyanne prescribed him a walker, but in completing a physical 18 RFC questionnaire in September 2019, Dr. Uyanne noted plaintiff needed a cane to 19 walk but did not mention a walker. Id. at 23 n.3; see AR at 50, 876. 20 Plaintiff cites the opinion of consultative examiner Dr. James Lin that 21 plaintiff “has to use a cane for ambulation.” See AR at 565. Plaintiff also cites Dr. 22 Uyanne’s observation that plaintiff needed a cane to walk. See AR at 876. 23 Plaintiff argues the ALJ did not explain why she did not include the use of the cane 24 in the RFC determination, and inaccurately concluded there was “no evidence the 25 doctor actually recommended or prescribed the use of the cane.” See AR at 25. 26 Additionally, according to plaintiff, the ALJ failed to consider plaintiff’s own 27 testimony that his treating physician prescribed him a walker. See AR at 50. 28 6 Case 2:20-cv-07312-SP Document 25 Filed 03/31/22 Page 7 of 11 Page ID #:960

1 Plaintiff also contends the ALJ’s findings were contradictory, since the ALJ first 2 said there was only “minimal evidence” plaintiff was prescribed a cane, and later 3 found there was “no evidence” a doctor recommended or prescribed a cane. See 4 AR at 23, 25. In short, plaintiff argues “it is more than reasonable to assert that 5 medical professionals concur an assistive device is medically indicated.” P. Mem. 6 at 6. 7 The use of a hand-held assistive device such as a cane is a functional 8 limitation only if it is medically required. See SSR 96-9p; Quintero v. Colvin, 9 2014 WL 4968269, at *10 (E.D. Cal. Sept. 29, 2014) (“The use of a cane or other 10 ‘hand-held assistive device’ is probative of a claimant’s functional limitations only 11 if it is medically required.”). The evidence in the record here does not satisfy 12 plaintiff’s burden of showing an assistive device was medically required. Plaintiff 13 points to his own testimony regarding Dr. Uyanne’s prescription of a walker, and 14 argues the ALJ disregarded this. In fact, as noted, the ALJ discussed this 15 testimony (see AR at 23 n.3), but this testimony is not enough by itself to show 16 medical necessity. See Schluter v. Berryhill, No. 2020 WL 1557773, at *5 (D. 17 Ariz. Mar. 10, 2020) (plaintiff’s own testimony coupled with physician referencing 18 plaintiff’s use of a cane insufficient to indicate cane was medically necessary). 19 “To find that a hand-held assistive device is medically required, there must 20 be medical documentation establishing the need for a hand-held assistive device to 21 aid in walking or standing, and describing the circumstances for which it is needed 22 (i.e., whether all the time, periodically, or only in certain situations; distance and 23 terrain; and any other relevant information).” SSR 96-9p. None of the evidence 24 plaintiff cites describes the circumstances in which plaintiff needs a walker or cane. 25 Dr. Lin stated only that plaintiff “has to use a cane for ambulation” (AR at 565), 26 but it did not indicate duration, distance, terrain, or any other relevant information. 27 This evidence does not satisfy SSR 96-9p. See Sou v. Saul, 799 Fed. Appx. 563, 28 7 Case 2:20-cv-07312-SP Document 25 Filed 03/31/22 Page 8 of 11 Page ID #:961

1 564-65 (9th Cir. 2020) (holding claimant failed to show a cane was medically 2 required where the evidence “did not describe the circumstances for which a cane 3 was needed”). 4 Similarly, Dr. Uyanne’s statement in the September 2019 RFC questionnaire 5 that plaintiff’s “difficulty with mobility necessitat[es] the use of a cane” (AR at 6 876) is also insufficient. See Dean N. v. Saul, 2020 WL 430962, at *2 (C.D. Cal. 7 Jan. 28, 2020) (physician’s statement claimant “needs the cane for ambulation” 8 was insufficient); Quintero v. Colvin, 2014 WL 4968269, at *10 (E.D. Cal. Sept. 9 29, 2014) (“Mentioning the use of a cane [in physicians’ notes] neither established 10 plaintiff needed the cane to balance or walk, nor described the circumstances for 11 which the cane would be needed.”). While Dr. Uyanne noted the use of a cane in 12 his RFC questionnaire, plaintiff cites to nothing in Dr. Uyanne’s treatment records 13 indicating he ever actually prescribed the use of a walker or a cane. 14 The court’s review of the record, however, revealed a single, December 13, 15 2016 treatment note in which Dr. Uyanne stated he would prescribe plaintiff a 16 walker given his mobility impairment. See AR at 397. Given that subsequent 17 treatment notes by Dr. Uyanne only reflect use of a cane by plaintiff, with no 18 reference to it being prescribed (see AR at 612, 627, 636, 645), and given that by 19 the time of the September 2019 questionnaire Dr. Uyanne was no longer 20 recommending a walker, it is unclear how long the walker prescription remained in 21 effect. Moreover, although the record contains one reference to a walker 22 prescription, even there, there is still no indication of the circumstances in which 23 plaintiff would need to use the walker. See Hughes v. Berryhill, 2017 WL 24 4854112, at *14-15 (S.D. W. Va. Oct. 4, 2017) (device was not medically required 25 where record contained prescription but no explanatory information describing 26 when device was needed); see also Dean N. v. Saul, 2020 WL 430962, at *2 (C.D. 27 Cal. Jan. 28, 2020) (“Plaintiff was required to establish both need and the specific 28 8 Case 2:20-cv-07312-SP Document 25 Filed 03/31/22 Page 9 of 11 Page ID #:962

1 circumstance in which he needs the cane before the ALJ could include the usage of 2 a cane in his RFC.”). 3 Plaintiff’s testimony does not shed light on the frequency of his use of a 4 walker or the circumstances for which he uses a walker. At the administrative 5 hearing, the ALJ acknowledged plaintiff was using a cane, but plaintiff did not 6 elaborate on whether he uses the cane for all ambulation, only prolonged 7 ambulation, walking on uneven surfaces, or ascending and descending stairs or 8 slopes – information necessary to determine medical necessity. See AR at 50. 9 As noted, the ALJ recognized plaintiff was repeatedly observed using a 10 cane, but plaintiff’s mere use of a cane is insufficient to show medical necessity. 11 Medical notes or observations regarding the use of a cane do not amount to 12 medical necessity. See Cashin v. Astrue, No., 2010 WL 749884, at *11 (C.D. Cal. 13 Feb. 24, 2010) (doctor’s observation of claimant’s use of cane during examination 14 not “an objective finding . . .[the] cane was medically required”); Flores v. Colvin, 15 2016 WL 2743228, at *14 (E.D. Cal. May 11, 2016) (mentions of claimant’s cane 16 traceable to his own self-reports and to his medical source’s observations 17 insufficient to demonstrate a medical need for a cane). Again, without a physician 18 “describing the circumstances for which [the cane] is needed,” the ALJ could not 19 find the cane medically necessary. SSR 96-9p. 20 In short, contrary to plaintiff’s contention, the ALJ did consider plaintiff’s 21 own testimony and the evidence in the record regarding plaintiff’s use of a cane. 22 Because the evidence in the record fails to demonstrate the cane was medically 23 necessary, the ALJ was not required to account for plaintiff’s use of a cane in her 24 RFC determination. Nonetheless, the ALJ statement that there was “no evidence” 25 to support plaintiff’s claim he was prescribed a walker was erroneous. The 26 question is whether this error warrants reversal. 27 An ALJ’s error is harmless where such error is inconsequential to the 28 9 Case 2:20-cv-07312-SP Document 25 Filed 03/31/22 Page 10 of 11 Page ID #:963

1 ultimate non-disability determination. Stout v. Comm’r, Soc. Sec. Admin., 454 2 F.3d 1050, 1055 (9th Cir. 2006); see also Burch v. Barnhart, 400 F.3d 676, 679 3 (9th Cir. 2005) (“A decision of the ALJ will not be reversed for errors that are 4 harmless.”). Given the lack of evidence that a cane was a medical necessity, and 5 given that the ALJ recognized the abundant evidence in the record that plaintiff 6 used a cane, it would be a reach to suppose the ALJ would have formulated a 7 different RFC had she known Dr. Uyanne prescribed a walker for plaintiff in 8 December 2016. 9 But even assuming plaintiff’s RFC had included use of a cane in some 10 fashion, it would not have changed the outcome here. The record only references 11 use of a cane while ambulating, and plaintiff did not indicate whether he also uses 12 a cane for balancing while standing. If an individual needs a cane for balance – 13 and again, there is no indication of that here – that could affect the available jobs in 14 some cases. See SSR 96-9p (“the occupational base for an individual who must 15 use such a device for balance because of significant involvement of both lower 16 extremities (e.g., because of a neurological impairment) may be significantly 17 eroded.”). But even if plaintiff here needed a cane for balance, plaintiff could still 18 do much of the work the ALJ found he could do. The ALJ found plaintiff could 19 perform his past relevant work as a labeler (AR at 30), which plaintiff performed 20 primarily while sitting. See AR at 253. Moreover, the ALJ further concluded 21 plaintiff could perform the jobs of addresser, charge account clerk, and document 22 preparer if plaintiff’s RFC exertional level were changed from light to sedentary. 23 AR at 31; see Leach v. Astrue 2010 WL 2650696, at *9 (E.D. Cal. July 1, 2010) 24 (“Even when medically required, the use of a cane does not rule out the ability to 25 perform sedentary work”) (citation omitted). As such, even with use of a cane in 26 his RFC, plaintiff still would have been found not disabled. 27 In sum, while the ALJ plainly considered relevant evidence in her RFC 28 10 Case 2:20-cv-07312-SP Document 25 Filed 03/31/22 Page11lof11 Page ID #:964

1 || determination pertaining to plaintiff's use of a cane, she did incorrectly find there 2 || was no evidence plaintiff was prescribed a walker, when in fact there was. Such 3 || error was harmless because there still was no evidence that plaintiff's use of a cane 4 || was a medical necessity, and because even with the use of a cane plaintiff could 5 || still perform his past relevant work and other jobs that exist in significant numbers. 6 V. 7 CONCLUSION 8 IT IS THEREFORE ORDERED that Judgment shall be entered 9 || AFFIRMING the decision of the Commissioner denying benefits, and dismissing 10 || the complaint with prejudice. 11 12 || DATED: March 31, 2022 LRP 13 NN 14 United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11