1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Phillip Fileccia, No. CV-22-00005-TUC-JGZ (EJM)
10 Plaintiff, ORDER
11 v.
12 Commissioner of Social Security Administration, 13 Defendant. 14 15 On February 9, 2023, Magistrate Judge Eric J. Markovich issued a Report and 16 Recommendation (R&R), recommending the Court deny Plaintiff Phillip Fileccia’s 17 Opening Brief and affirm the Commissioner’s decision. (Doc. 28.) Fileccia filed an 18 Objection and the Commissioner filed a Response. (Docs. 29, 31.) After an independent 19 review of the record and R&R, the Court will overrule Fileccia’s Objection, adopt in part 20 the R&R, and affirm the Commissioner’s decision. 21 I. Standard of Review 22 When reviewing a Magistrate Judge’s R&R, this Court “may accept, reject, or 23 modify, in whole or in part, the findings or recommendations made by the magistrate 24 judge.” 28 U.S.C. § 636(b)(1). “[T]he district judge must review the magistrate judge’s 25 findings and recommendations de novo if objection is made, but not otherwise.” United 26 States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). District courts are 27 not required to conduct “any review at all . . . of any issue that is not the subject of an 28 objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); see also 28 U.S.C. § 636(b)(1); Fed. 1 R. Civ. P. 72. Further, a party is not entitled as of right to de novo review of evidence or 2 arguments which are raised for the first time in an objection to the R&R, and the Court’s 3 decision to consider newly raised arguments is discretionary. Brown v. Roe, 279 F.3d 742, 4 744 (9th Cir. 2002); United States v. Howell, 231 F.3d 615, 621–22 (9th Cir. 2000). 5 II. Background 6 Fileccia does not object to the Magistrate Judge’s summary of the factual and 7 procedural background. (See Doc. 29.) Therefore, the Court does not restate the facts here 8 but includes the relevant facts in its discussion of the issues presented. 9 III. Discussion 10 The court will only set aside the ALJ’s disability determination if it is based on legal 11 error or not supported by substantial evidence. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 12 2007). An ALJ’s decision will not be reversed for harmless errors. Stout v. Comm’r, Soc. 13 Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006). Substantial evidence is relevant evidence 14 which a reasonable mind might accept as adequate to support a conclusion. Burch v. 15 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Where evidence is susceptible to more than 16 one rational interpretation, the ALJ’s conclusion must be upheld. Id. 17 Fileccia’s Objection advances two arguments: the Magistrate Judge applied an 18 incorrect standard in evaluating the ALJ’s consideration of Fileccia’s daily activities and 19 pain levels; and the Magistrate Judge’s conclusion on Dr. Hassman’s opinion requires 20 further vocational expert testimony. (Doc. 29 at 1, 4.) The Court will address each in turn. 21 A. Symptom Testimony 22 The ALJ determined Fileccia’s symptom testimony was not credible in part because 23 Fileccia reported unbearable pain but cared for his infant son during the day and sought no 24 prescription medication. (Doc. 17-3 at 21.) The Magistrate Judge concluded the ALJ 25 properly considered this conflicting evidence. (Doc. 28 at 12–13.) In his Objection, Fileccia 26 argues the Magistrate Judge applied an incorrect standard by not examining whether the 27 ALJ provided “‘clear and convincing’ . . . reasons that specific inconsistencies undermine 28 specific testimony.” (Docs. 29 at 2–3.) Relevant to his daily activities, Fileccia contends 1 “[t]he ALJ’s assumption that childcare and limited chores are automatically inconsistent 2 with sedentary work is not a specific reason to disregard symptom testimony.” (Id. at 2.) 3 Fileccia also contends his statement that he had “unbearable” pain was a “minor 4 inconsistency” that does not necessarily mean he was lying or exaggerating. (Id. at 3.) 5 Rather, he contends his statement was “hyperbolic” and a way of saying that “he cannot 6 perform more than sedentary work.” (Id.) For these reasons, Fileccia contends the 7 Magistrate Judge erred in recommending the ALJ’s decision be upheld. (Id. at 1.) 8 If there is no evidence of malingering, the ALJ may reject the claimant’s symptom 9 testimony only by giving specific, clear, and convincing reasons supported by evidence in 10 the record. Smith v. Kijakazi, 14 F.4th 1108, 1112 (9th Cir. 2021). These reasons may 11 include inconsistencies in the claimant’s testimony, daily activities involving skills that 12 could be transferred to the workplace, conflicting objective medical evidence, and lack of 13 consistent treatment. See Burch, 400 F.3d at 680–81. A claimant’s subjective symptom 14 testimony may be undermined by an unexplained or inadequately explained failure to seek 15 treatment or failure to follow prescribed treatment. Trevizo v. Berryhill, 871 F.3d 664, 679 16 (9th Cir. 2017). 17 There is substantial evidence in the record upon which a reasonable ALJ could 18 determine that Fileccia’s symptom testimony was not credible. Fileccia moved for a closed 19 period award of July 2019 to June 2020. (Doc. 17-3 at 14.) In August 2019, Fileccia stated 20 his “leg and foot do not work”; his “pain never stops” and is “sometimes unbearable”; and 21 he “can’t do anything.” (Docs. 17-7 at 28, 32.) Fileccia also testified that he was unable to 22 walk during this one-year period. (Doc. 17-3 at 62–63.) Despite these claims, Fileccia took 23 over-the-counter medication as needed, did not seek prescription pain medication, and 24 failed to complete physical therapy. (Docs. 17-3 at 62; 17-8 at 19–20, 50.) Fileccia’s failure 25 to seek and complete treatment that could remedy or mitigate his allegedly disabling pain 26 cuts against his credibility. See Trevizo, 871 F.3d at 679. So too does his failure to present 27 a reasonable basis for his lack of treatment. See id. 28 Fileccia’s statements about the intensity and persistence of his pain are also 1 undermined by the medical record. In January 2020, Fileccia’s physical therapist noted he 2 was “doing well” at the time of his last October 2019 appointment, (Doc. 17-8 at 20), and 3 his primary care provider noted he was “regularly performing [PT] exercises daily” and 4 had a “recent new job as football coach,” (Id. at 14.) In February 2020, Fileccia’s 5 orthopedic doctor noted he was ambulating without crutches while wearing a boot and 6 “doing well with very minimal pain.” (Id. at 38.) In March 2020, Fileccia’s orthopedic 7 doctor noted he was “[d]oing well, some occasional heel pain but minimal.” (Id. at 44.) 8 Finally, in May 2020, Fileccia’s orthopedic doctor noted he had been doing a home 9 exercise program, was no longer wearing a boot, could walk around with his son, and 10 experienced only intermittent soreness and stiffness. (Id.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Phillip Fileccia, No. CV-22-00005-TUC-JGZ (EJM)
10 Plaintiff, ORDER
11 v.
12 Commissioner of Social Security Administration, 13 Defendant. 14 15 On February 9, 2023, Magistrate Judge Eric J. Markovich issued a Report and 16 Recommendation (R&R), recommending the Court deny Plaintiff Phillip Fileccia’s 17 Opening Brief and affirm the Commissioner’s decision. (Doc. 28.) Fileccia filed an 18 Objection and the Commissioner filed a Response. (Docs. 29, 31.) After an independent 19 review of the record and R&R, the Court will overrule Fileccia’s Objection, adopt in part 20 the R&R, and affirm the Commissioner’s decision. 21 I. Standard of Review 22 When reviewing a Magistrate Judge’s R&R, this Court “may accept, reject, or 23 modify, in whole or in part, the findings or recommendations made by the magistrate 24 judge.” 28 U.S.C. § 636(b)(1). “[T]he district judge must review the magistrate judge’s 25 findings and recommendations de novo if objection is made, but not otherwise.” United 26 States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). District courts are 27 not required to conduct “any review at all . . . of any issue that is not the subject of an 28 objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); see also 28 U.S.C. § 636(b)(1); Fed. 1 R. Civ. P. 72. Further, a party is not entitled as of right to de novo review of evidence or 2 arguments which are raised for the first time in an objection to the R&R, and the Court’s 3 decision to consider newly raised arguments is discretionary. Brown v. Roe, 279 F.3d 742, 4 744 (9th Cir. 2002); United States v. Howell, 231 F.3d 615, 621–22 (9th Cir. 2000). 5 II. Background 6 Fileccia does not object to the Magistrate Judge’s summary of the factual and 7 procedural background. (See Doc. 29.) Therefore, the Court does not restate the facts here 8 but includes the relevant facts in its discussion of the issues presented. 9 III. Discussion 10 The court will only set aside the ALJ’s disability determination if it is based on legal 11 error or not supported by substantial evidence. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 12 2007). An ALJ’s decision will not be reversed for harmless errors. Stout v. Comm’r, Soc. 13 Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006). Substantial evidence is relevant evidence 14 which a reasonable mind might accept as adequate to support a conclusion. Burch v. 15 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Where evidence is susceptible to more than 16 one rational interpretation, the ALJ’s conclusion must be upheld. Id. 17 Fileccia’s Objection advances two arguments: the Magistrate Judge applied an 18 incorrect standard in evaluating the ALJ’s consideration of Fileccia’s daily activities and 19 pain levels; and the Magistrate Judge’s conclusion on Dr. Hassman’s opinion requires 20 further vocational expert testimony. (Doc. 29 at 1, 4.) The Court will address each in turn. 21 A. Symptom Testimony 22 The ALJ determined Fileccia’s symptom testimony was not credible in part because 23 Fileccia reported unbearable pain but cared for his infant son during the day and sought no 24 prescription medication. (Doc. 17-3 at 21.) The Magistrate Judge concluded the ALJ 25 properly considered this conflicting evidence. (Doc. 28 at 12–13.) In his Objection, Fileccia 26 argues the Magistrate Judge applied an incorrect standard by not examining whether the 27 ALJ provided “‘clear and convincing’ . . . reasons that specific inconsistencies undermine 28 specific testimony.” (Docs. 29 at 2–3.) Relevant to his daily activities, Fileccia contends 1 “[t]he ALJ’s assumption that childcare and limited chores are automatically inconsistent 2 with sedentary work is not a specific reason to disregard symptom testimony.” (Id. at 2.) 3 Fileccia also contends his statement that he had “unbearable” pain was a “minor 4 inconsistency” that does not necessarily mean he was lying or exaggerating. (Id. at 3.) 5 Rather, he contends his statement was “hyperbolic” and a way of saying that “he cannot 6 perform more than sedentary work.” (Id.) For these reasons, Fileccia contends the 7 Magistrate Judge erred in recommending the ALJ’s decision be upheld. (Id. at 1.) 8 If there is no evidence of malingering, the ALJ may reject the claimant’s symptom 9 testimony only by giving specific, clear, and convincing reasons supported by evidence in 10 the record. Smith v. Kijakazi, 14 F.4th 1108, 1112 (9th Cir. 2021). These reasons may 11 include inconsistencies in the claimant’s testimony, daily activities involving skills that 12 could be transferred to the workplace, conflicting objective medical evidence, and lack of 13 consistent treatment. See Burch, 400 F.3d at 680–81. A claimant’s subjective symptom 14 testimony may be undermined by an unexplained or inadequately explained failure to seek 15 treatment or failure to follow prescribed treatment. Trevizo v. Berryhill, 871 F.3d 664, 679 16 (9th Cir. 2017). 17 There is substantial evidence in the record upon which a reasonable ALJ could 18 determine that Fileccia’s symptom testimony was not credible. Fileccia moved for a closed 19 period award of July 2019 to June 2020. (Doc. 17-3 at 14.) In August 2019, Fileccia stated 20 his “leg and foot do not work”; his “pain never stops” and is “sometimes unbearable”; and 21 he “can’t do anything.” (Docs. 17-7 at 28, 32.) Fileccia also testified that he was unable to 22 walk during this one-year period. (Doc. 17-3 at 62–63.) Despite these claims, Fileccia took 23 over-the-counter medication as needed, did not seek prescription pain medication, and 24 failed to complete physical therapy. (Docs. 17-3 at 62; 17-8 at 19–20, 50.) Fileccia’s failure 25 to seek and complete treatment that could remedy or mitigate his allegedly disabling pain 26 cuts against his credibility. See Trevizo, 871 F.3d at 679. So too does his failure to present 27 a reasonable basis for his lack of treatment. See id. 28 Fileccia’s statements about the intensity and persistence of his pain are also 1 undermined by the medical record. In January 2020, Fileccia’s physical therapist noted he 2 was “doing well” at the time of his last October 2019 appointment, (Doc. 17-8 at 20), and 3 his primary care provider noted he was “regularly performing [PT] exercises daily” and 4 had a “recent new job as football coach,” (Id. at 14.) In February 2020, Fileccia’s 5 orthopedic doctor noted he was ambulating without crutches while wearing a boot and 6 “doing well with very minimal pain.” (Id. at 38.) In March 2020, Fileccia’s orthopedic 7 doctor noted he was “[d]oing well, some occasional heel pain but minimal.” (Id. at 44.) 8 Finally, in May 2020, Fileccia’s orthopedic doctor noted he had been doing a home 9 exercise program, was no longer wearing a boot, could walk around with his son, and 10 experienced only intermittent soreness and stiffness. (Id. at 25.) Substantial clear and 11 convincing medical evidence directly conflicts with Fileccia’s statements that his pain was 12 constant and at times unbearable, preventing him from doing nearly any activity, including 13 walking. The ALJ therefore did not err in finding Fileccia not credible. See Burch, 400 14 F.3d at 680–81. The Court will adopt the Magistrate Judge’s finding that the ALJ properly 15 assessed Fileccia’s symptom testimony. 16 B. Dr. Hassman’s Opinion 17 Dr. Hassman’s report stated that Fileccia “may need more frequent rest breaks than 18 usual.” (Doc. 17-8 at 8.) The ALJ found Dr. Hassman’s opinion “generally persuasive” and 19 concluded Fileccia had the residual functional capacity to sit, stand, or walk for six to eight 20 hours in an eight-hour day. (Doc. 17-3 at 18, 21.) The ALJ, however, did not evaluate 21 whether Fileccia “may need” additional rest breaks. (See id. at 18–21.) The Magistrate 22 Judge found that “Dr. Hassman’s statement could reasonably be interpreted to suggest that 23 the rest breaks are from standing/walking resulting in the temporal limitation, rather than 24 a wholesale need for additional rest periods.” (Doc. 28 at 14.) That is, Fileccia may need 25 more frequent transitions from standing to walking, or vice versa, rather than more rest 26 periods from work generally. In his Objection, Fileccia contends “there is no evidence that 27 the ALJ concluded anything of the kind.” (Doc. 29 at 4.) Fileccia thus argues the Magistrate 28 Judge erred by concluding the ALJ appropriately considered Dr. Hassman’s opinion and 1 requests the Court remand his case for additional expert testimony on whether he needed a 2 sit-stand option. (Id.) 3 The Commissioner argues that “the ALJ, in finding Dr. Hassman’s opinion 4 ‘generally persuasive,’ did not find that additional rest breaks were warranted.” (Doc. 31 5 at 5.) The Court agrees. Dr. Hassman’s opinion stated that Felicia had no limitations in 6 sitting and could stand and walk for six to eight hours a day but may need more frequent 7 rest breaks than usual. (Doc. 17-8 at 7–8.) The ALJ concluded that Fileccia had a residual 8 functional capacity to sit, stand, and walk for six to eight hours a day and made no mention 9 of a need for more rest breaks. (Id. at 18.) The ALJ could have determined Dr. Hassman 10 accurately opined on Fileccia’s ability to sit, stand, or walk for six to eight hours a day and 11 rejected Dr. Hassman’s statement that Fileccia may need more rest breaks. This would have 12 been a reasonable conclusion based on the medical record indicating Fileccia’s pain was 13 minimal as well as Dr. Hassman’s physical examination of Fileccia and less-than-certain 14 statement that he might need more rest breaks. The ALJ’s determination is thus supported 15 by substantial evidence and must be upheld. See Burch, 400 F.3d at 679. 16 Although the Court does not find that the ALJ construed Dr. Hassman’s opinion as 17 stating Fileccia may need a sit-stand option, the Court adopts the Magistrate Judge’s 18 ultimate determination that the ALJ’s decision and reliance on Dr. Hassman’s opinion was 19 reasonable and based on substantial evidence. 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // IV. Conclusion 2 Accordingly, 3 IT IS ORDERED: 4 1. Fileccia’s Objection (Doc. 29) is overruled. 5 2. The Report and Recommendation (Doc. 28) is adopted in part consistent || with this Order. 7 3. The Commissioner’s Final Decision is affirmed. 8 4. The Clerk of Court shall enter judgment accordingly and close its file in this action. 10 Dated this 23rd day of March, 2023. 11 12 □ 13 pote Spe 4 ; Honorable Jennife □□ Zipps United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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