Gaytan v. Saul

• Court: District Court, S.D. California
• Decided: June 23, 2021
• Docket: 3:20-cv-00153
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 HUGO G., Case No.: 20cv153-MDD

11 Plaintiff, ORDER DENYING PLAINTIFF’S 12 v. MOTION FOR SUMMARY JUDGMENT AND GRANTING 13 ANDREW SAUL, Commissioner of DEFENDANT’S CROSS MOTION Social Security, 14 FOR SUMMARY JUDGMENT Defendant. 15 [ECF Nos. 15, 16] 16 17 Hugo G. (“Plaintiff”) filed this action pursuant to 42 U.S.C. § 405(g) for 18 judicial review of the final administrative decision of the Commissioner of the 19 Social Security Administration (“Commissioner”) denying Plaintiff’s 20 application for a period of disability and disability insurance benefits under 21 Title II of the Social Security Act (“Act”) and for supplemental security 22 income under Title XVI of the Act. (AR at 15).1 For the reasons expressed 23 herein, the Court DENIES Plaintiff’s motion for summary judgment [ECF 24 No. 15] and GRANTS the Commissioner’s cross motion for summary 25

26 1 “AR” refers to the Certified Administrative Record filed on November 19, 2020. (ECF No. 1 judgment [ECF No. 16]. 2 I. BACKGROUND 3 Plaintiff was born October 5, 1977. (AR at 25). On the alleged 4 disability onset date, Plaintiff was 34 years old, which defined him as a 5 younger individual. (Id.). 6 A. Procedural History 7 On October 15, 2015, Plaintiff protectively filed an application for a 8 period of disability and disability insurance benefits under Title II of the Act 9 and supplemental security income under Title XVI of the Act, alleging a 10 disability beginning on November 20, 2011. (AR at 15). After his application 11 was denied initially and upon reconsideration, Plaintiff requested a hearing 12 before an administrative law judge (“ALJ”). (Id.). An administrative hearing 13 was held on February 8, 2019. (AR at 32-54). Plaintiff appeared and was 14 represented by his attorney, Steven Rosales. (See id.). Testimony was taken 15 from Plaintiff, Gloria Lassaw, an impartial vocational expert (“VE”), and Dr. 16 Gaeta, a medical expert. (Id.). On February 21, 2019, the ALJ issued a 17 decision denying Plaintiff’s claim for a period of disability and disability 18 insurance benefits and for supplemental security income. (AR at 15-26). 19 Plaintiff sought review with the Appeals Council. (See AR at 5). On 20 November 26, 2019, the Appeals Council denied Plaintiff’s request for review 21 and declared the ALJ’s decision to be the final decision of the Commissioner 22 in Plaintiff’s case. (AR at 1). This timely civil action followed. 23 II. DISCUSSION 24 A. Legal Standard 25 Sections 405(g) and 1383(c)(3) of the Social Security Act allow 26 unsuccessful applicants to seek judicial review of a final agency decision of 1 review is limited in that a denial of benefits will not be disturbed if it is 2 supported by substantial evidence and contains no legal error. Id.; see also 3 Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1993 (9th Cir. 2004). 4 Substantial evidence “is a ‘term of art’ used throughout administrative 5 law to describe how courts are to review agency factfinding.” Biestek v. 6 Berryhill, 139 S. Ct. 1148, 1154 (2019). Courts look “to an existing 7 administrative record and ask[] whether it contains ‘sufficien[t] evidence’ to 8 support the agency’s factual determinations.” Id. “[T]he threshold for such 9 evidentiary sufficiency is not high. Substantial evidence, [the Supreme 10 Court] has said, is ‘more than a mere scintilla.’ It means—and only means— 11 ‘such relevant evidence as a reasonable mind might accept as adequate to 12 support a conclusion.” Id. The Ninth Circuit explains that substantial 13 evidence is “more than a mere scintilla but may be less than a 14 preponderance.” Molina v. Astrue, 674 F.3d 1104, 1110-11 (9th Cir. 2012) 15 (quotation marks and citations omitted), superseded by regulation on other 16 grounds. 17 An ALJ’s decision is reversed only if it “was not supported by 18 substantial evidence in the record as a whole or if the ALJ applied the wrong 19 legal standard.” Id. “To determine whether substantial evidence supports 20 the ALJ’s determination, [the Court] must assess the entire record, weighing 21 the evidence both supporting and detracting from the agency’s conclusion.” 22 Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021) (citing Mayes v. 23 Massanari, 276 F.3d 453, 459 (9th Cir. 2001)). The Court “may not reweigh 24 the evidence or substitute [it’s] judgment for that of the ALJ.” Id. “The ALJ 25 is responsible for determining credibility, resolving conflicts in medical 26 testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1 more than one way, the court must uphold the [ALJ’s] decision.” Mayes, 276 2 F.3d at 459. 3 Section 405(g) permits a court to enter a judgment affirming, modifying 4 or reversing the Commissioner’s decision. 42 U.S.C. § 405(g). The reviewing 5 court may also remand the matter to the Social Security Administration for 6 further proceedings. Id. 7 B. Summary of the ALJ’s Findings 8 In rendering his decision, the ALJ followed the Commissioner’s five-step 9 sequential evaluation process. See C.F.R. § 404.1520. At step one, the ALJ 10 found that Plaintiff did not engage in substantial gainful activity during the 11 period from his amended alleged onset date of November 20, 2011. (AR at 12 17). 13 At step two, the ALJ found that Plaintiff had the following severe 14 impairments: post gunshot wound with humerus fracture with history of 15 nonunion and chronic pain. (Id.). 16 At step three, the ALJ found that Plaintiff did not have an impairment 17 or combination of impairments that met or medically equaled one of the 18 impairments listed in the Commissioner’s Listing of Impairments. (AR at 21) 19 (citing 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 20 404.1525 and 404.1526)). 21 Next, after considering the entire record, the ALJ determined that 22 Plaintiff had the residual functional capacity (“RFC”) to perform light work 23 with the following limitations: 24 [T]he claimant can lift and/or carry 20 pounds occasionally and 10 pounds frequently; the claimant can sit for 6 hours in an 8-hour 25 workday; the claimant can stand and/or walk for 6 hours in an 8- 26 hour workday; The claimant can frequently climb ramps, stairs, ropes, ladders and scaffolds; the claimant can frequently balance, 1 stoop, kneel, crouch and crawl; the claimant can frequently be exposed to environmental factors but claimant cannot be exposed 2 to concentrated temperature extremes; the claimant cannot reach, 3 handle, finger, push or pull with the left upper extremity, but the left upper extremity may assist the right upper extremity with 4 lifting and/or carrying within the aforementioned limitations. 5 6 (AR at 19-20). 7 The ALJ said that his RFC assessment was based on all the evidence 8 and the extent to which Plaintiff’s symptoms can reasonably be accepted as 9 consistent with the objective medical evidence and other evidence. (AR at 10 20). The ALJ also stated that he considered the opinion evidence in 11 accordance with the requirements of 20 C.F.R. 404.1527 and 416.927. (Id.). 12 The ALJ then proceeded to step four of the sequential evaluation 13 process. He found Plaintiff was unable to perform his past relevant work. 14 (AR at 24). 15 For the purposes of his step five determination, the ALJ accepted the 16 testimony of VE Gloria Lassaw. The ALJ determined that Plaintiff could 17 perform jobs identified by the VE which exist in significant numbers in the 18 national economy. For example, cashier (DOT 211.462-010), usher (DOT 19 344.677-014), and advertising material distributor (DOT 230.687-010). 20 C. Issues in Dispute 21 The issues in dispute in this case are: (1) whether the ALJ properly 22 considered Plaintiff’s subjective symptom testimony; and (2) whether the ALJ 23 properly considered the lay witness testimonial evidence. 24 1. Plaintiff’s Subjective Symptom Testimony 25 Plaintiff testified that he cannot lift more than ten to fifteen pounds 26 and that he has “real bad nerve damage.” (AR at 37). He further testified 1 explained that he has a constant, throbbing pain, that he is always tense, and 2 that his nerves feel “knotted up.” (AR at 40). He testified that medication 3 helps “a bit,” but “not really to be honest.” (Id.). Plaintiff conceded that he 4 would likely be able to do a job where he primarily used his non-injured arm, 5 like a greeter or an usher. (AR at 38-39). 6 “[W]here, as here, the ALJ ‘determines that a claimant for Social 7 Security benefits is not malingering and has provided objective medical 8 evidence of an underlying impairment which might reasonably produce the 9 pain or other symptoms [he] alleges, the ALJ must reject the claimant’s 10 testimony about the severity of those symptoms only by providing specific, 11 clear, and convincing reasons for doing so.’” Lambert v. Saul, 980 F.3d 1266, 12 1277 (9th Cir. 2020) (quoting Brown-Hunter v. Colvin, 806 F.3d 487, 488-89 13 (9th Cir. 2015)). “This requires the ALJ to ‘specifically identify the testimony 14 [from a claimant] she or he finds not to be credible and . . . explain what 15 evidence undermines that testimony.’” Id. (quoting Treichler v. Comm’r of 16 Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014)). 17 In this case, the ALJ generically found that “the claimant’s 18 statements concerning the intensity, persistence and limiting effects of these 19 symptoms are not entirely consistent with the medical evidence and other 20 evidence in the record for the reasons explained in this decision.” (AR at 20). 21 The Ninth Circuit has repeatedly found this language to be insufficient and 22 “boilerplate.” See id. at 1277; Treichler, 775 F.3d at 1103; see also Brown- 23 Hunter, 806 F.3d at 493 (finding the statement to be “conclusory” and that it 24 “failed to identify specifically which of Brown-Hunter’s statements she found 25 not credible and why”). Like Lambert, Brown-Hunter, and Treichler, the 26 ALJ’s decision in this case does not “identify what parts of the claimant’s 1 This Court “‘cannot review whether the ALJ provided specific, clear, 2 and convincing reasons for rejecting [Plaintiff’s] . . . testimony where, as here, 3 the ALJ never identified which testimony [he] found not credible, and never 4 explained which evidence contradicted that testimony.’” Lambert, 980 F.3d 5 at 1277 (quoting Brown-Hunter, 806 F.3d at 494). The ALJ was required to 6 do more than offer “non-specific conclusions” that Plaintiff’s testimony was 7 inconsistent with his medical record. Id. (quoting Burrell v. Colvin, 775 F.3d 8 1133, 1138 (9th Cir. 2014) (explaining that we may not “take a general 9 finding—an unspecified conflict between [c]laimant’s testimony . . . and her 10 reports to doctors—and comb the administrative record to find specific 11 conflicts”)). The ALJ provided a detailed overview of Plaintiff’s medical 12 history, but “providing a summary of medical evidence . . . is not the same as 13 providing clear and convincing reasons for finding the claimant’s symptom 14 testimony not credible.” Brown-Hunter, 806 F.3d at 494. As such, the ALJ 15 erred in assessing Plaintiff’s subjective symptom testimony. 16 The Court must next consider whether the error was harmless. “An 17 error is harmless only if it is inconsequential to the ultimate nondisability 18 determination, or if despite the legal error, the agency’s path may reasonably 19 be discerned.” Id. (citations and internal quotation marks omitted). 20 Lambert, Brown-Hunter, and Treichler found errors based on this 21 boilerplate language not harmless. See Lambert, 980 F.3d at 1269; Brown- 22 Hunter, 806 F.3d at 489-91; Treichler, 775 F.3d at 1095-97 n.2. However, the 23 plaintiffs’ testimonies and RFCs in those cases were contradictory. For 24 example, in Lambert, the plaintiff testified that it is difficult for her to walk, 25 that her pain is “debilitating,” and that she “spends most of her time in her 26 bedroom ‘because it’s unbearable to move.’” Lambert, 980 F.3d at 1269. 1 work,’ which includes lifting up to twenty pounds, a ‘good deal of walking and 2 standing,’ and ‘pushing and pulling of arm or leg controls.’” Id. In Brown- 3 Hunter, the plaintiff was assessed with an RFC “to perform light work” 4 despite the plaintiff’s testimony that she could only sit for about an hour and 5 stand for about forty-five minutes. Brown-Hunter, 806 F.3d at 489-91. In 6 Treichler, the plaintiff testified that he was “not very mobile,” and has to sit 7 down after five to ten minutes of standing due to pain. Treichler, 775 F.3d at 8 1095 (internal quotation marks omitted). The ALJ found that the plaintiff 9 could perform light work, except that he “must change positions every 15 10 minutes. . . .” Id. at 1097 n.2 (internal quotation marks omitted). 11 This case is distinguishable because Plaintiff’s testimony supports 12 the RFC determination. (See AR at 24) (indicating that the RFC “assessment 13 is supported by the testimony of [Plaintiff]”). For example, the RFC and 14 Plaintiff’s testimony both indicate that Plaintiff can lift ten pounds 15 frequently and twenty pounds occasionally if his left upper extremity assists 16 the right upper extremity, that Plaintiff cannot be exposed to concentrated 17 temperature extremes, and that Plaintiff cannot reach, handle, finger, push 18 or pull with the upper left extremity. (See AR at 19-20, 37-40, 283-91). 19 Further, Plaintiff does not challenge the RFC assessment and does not 20 specify portions of his testimony that require a more restrictive RFC. (ECF 21 No. 15-1). Accordingly, the Court finds that the ALJ’s error was harmless. 22 2. Lay Witness Testimony 23 The Commissioner’s regulations require that, in determining 24 whether a claimant is disabled, the ALJ consider statements provided by 25 nonmedical sources such as family members about the severity of the 26 claimant’s impairments and how the impairments and any related symptoms 1 404.1529(a). Lay witness testimony as to how a claimant’s symptoms affect 2 the claimant’s ability to work is competent evidence and cannot be 3 disregarded without providing specific reasons germane to the testimony 4 rejected. See Van Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). 5 Plaintiff’s sister completed a third-party function report. (AR at 273- 6 80). She visits with Plaintiff three to four days a week and explained that 7 Plaintiff is constantly in pain. (AR at 273). According to Plaintiff’s sister, 8 Plaintiff does not do much because his doctor put limitations on his arm. (AR 9 at 277). He does not do any household chores, care for anyone else, and does 10 not cook for himself. (AR at 273-75). She also explains that Plaintiff stutters 11 and gets nervous when he speaks. (AR at 278). 12 The ALJ assigned Plaintiff’s sister’s opinion “partial weight” because 13 it “is not supported by the clinical or diagnostic medical evidence,” including 14 opinion evidence from acceptable medical sources that indicate Plaintiff is 15 more functional than his sister opined. (AR at 21). For example, she opined 16 that Plaintiff was constantly in pain and could not move his arm much, but 17 the medical record shows that Plaintiff’s pain “is somewhat abated on his 18 medication, that he had regained range of motion in his shoulder, and that 19 his last surgery was successful.” (Id.). The medical record does show that 20 Plaintiff had functional range of motion at least as of June 10, 2016. (AR at 21 647). Plaintiff regained full range of motion on July 7, 2016. (AR at 617). 22 Moreover, Drs. J. Hartman, B. Harris, and Gaeta opined that Plaintiff could 23 perform light work activity. (AR at 46-48, 63-64, 75-77, 88-91, 99-101). An 24 ALJ can reject lay witness testimony to the extent that it conflicts with other 25 testimony and the medical evidence. Bayliss v. Barnhart, 427 F.3d 1211, 26 1218 (9th Cir. 2005); Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). 1 CONCLUSION 2 Based on the foregoing, the Court DENIES Plaintiff's motion for 3 ||sSummary judgment and GRANTS the Commissioner’s cross-motion for 4 ||summary judgment. The Clerk of Court is instructed to enter judgment 5 ||accordingly. 6 IT IS SO ORDERED. Dated: June 23, 2021 Mitel by. [= Hon. Mitchell D. Dembin 9 United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27