Hodge v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: January 7, 2022
• Docket: 2:20-cv-01519
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Ramon Fernando Hodge, No. CV-20-01519-PHX-DWL

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 At issue is the denial of Plaintiff Ramon Fernando Hodge’s application for Social 16 Security disability insurance benefits by the Social Security Administration (“SSA”). The 17 Court has reviewed the briefs (Docs. 22, 25, 29) and Administrative Record (“AR”) and 18 now affirms the Administrative Law Judge’s (“ALJ”) decision (AR at 13-26). 19 I. Background 20 Plaintiff filed an application for benefits on November 30, 2016, alleging an onset 21 of disability date of June 1, 2016.1 (AR at 13.) Plaintiff’s claim was initially denied on 22 March 14, 2017, and upon reconsideration on August 21, 2017. (Id.) A hearing was held 23 before an ALJ on July 9, 2019. (Id. at 33-75.) Plaintiff was 45 years old on the date of the 24 hearing and held previous employment as a telephone solicitor. (Id.) 25 After considering the medical evidence and opinions, the ALJ evaluated Plaintiff’s 26 disability claim based on the following severe impairments: (1) left shoulder impairment, 27

28 1 Plaintiff filed a different application for benefits that was denied on February 5, 2010. (AR at 76-84.) 1 status-post left shoulder surgery; (2) neuropathy; (3) degenerative disc disease; (4) bilateral 2 knee and hip impairments; and (5) migraine headaches. (Id. at 16.) Although the ALJ 3 noted that Plaintiff’s severe impairments limited his ability to perform basic work 4 activities, the ALJ determined that Plaintiff had the residual functional capacity (“RFC”) 5 to perform light work, including the job he previously performed, and thus was not 6 disabled. (Id. at 26.) Plaintiff’s application was denied by the ALJ on July 26, 2019. (Id.) 7 Thereafter, the Appeals Council denied Plaintiff’s request for review and this appeal 8 followed. 9 II. Legal Standards 10 An ALJ’s factual findings “shall be conclusive if supported by substantial 11 evidence.” Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019). The Court may set aside 12 the Commissioner’s disability determination only if it is not supported by substantial 13 evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 14 Substantial evidence is relevant evidence that a reasonable person might accept as adequate 15 to support a conclusion considering the record as a whole. Id. Generally, “[w]here the 16 evidence is susceptible to more than one rational interpretation, one of which supports the 17 ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 18 954 (9th Cir. 2002) (citations omitted). In determining whether to reverse an ALJ’s 19 decision, the district court reviews only those issues raised by the party challenging the 20 decision. Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). 21 To determine whether a claimant is disabled for purposes of the Act, the ALJ 22 follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of 23 proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett 24 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 25 the claimant is presently engaging in substantial gainful activity. 20 C.F.R. 26 §404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe” 27 medically determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). At 28 step three, the ALJ considers whether the claimant’s impairment or combination of 1 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 2 of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is automatically 3 found to be disabled. Id. At step four, the ALJ assesses the claimant’s RFC and determines 4 whether the claimant is still capable of performing past relevant work. 20 C.F.R. 5 § 404.1520(a)(4)(iv). If not, the ALJ proceeds to the fifth and final step, where the ALJ 6 determines whether the claimant can perform any other work in the national economy 7 based on the claimant’s RFC, age, education, and work experience. 20 C.F.R. 8 § 404.1520(a)(4)(v). If not, the claimant is disabled. Id. 9 III. Analysis 10 Plaintiff raises two assignments of error. First, Plaintiff argues the ALJ failed to 11 provide specific, clear and convincing reasons supported by substantial evidence for 12 discounting his symptom testimony. (Doc. 22 at 10-19.) Second, Plaintiff argues the ALJ 13 erred “by determining [Plaintiff’s RFC] without substantial evidence in [the] record.” (Id. 14 at 19-21.) As a remedy, Plaintiff seeks a remand for computation and award of benefits. 15 (Id. at 21-23.) 16 A. The ALJ provided specific, clear and convincing reasons supported by substantial evidence for rejecting Plaintiff’s symptom testimony 17 During the hearing, Plaintiff testified that he would not be able to work any job due 18 to pain in his neck, lower back, and hips. (AR at 46-49.) When asked “What do you do 19 during the day then?”, Plaintiff responded: “Well, for the most part I lay. I lay flat.” (Id. 20 at 48.) And in response to a follow-up question of “So what, you lay down and stare at the 21 ceiling all day or what are we doing?”, Plaintiff responded in relevant part that “whether I 22 [have] someone in the room talking to me, whether there’s a TV on, whether I’m staring at 23 the wall which does happen, that’s my day.” (Id. at 48-49.) Similarly, in his function 24 report, Plaintiff responded to the query “Describe what you do from the time you wake up 25 until going to bed” that “My regular schedule is to stay in bed.” (Id. at 260.) 26 The ALJ identified four reasons for discounting Plaintiff’s symptom testimony. (Id. 27 at 20-21.) First, the ALJ stated that Plaintiff’s testimony was “not entirely consistent with 28 the medical evidence” and then provided a lengthy summary of some of the medical 1 evidence in the record. (Id. at 20-21.) Second, the ALJ stated that Plaintiff’s testimony 2 was “inconsistent with his . . . self-reported daily activities, which show that he retains 3 functional capabilities.” (Id.) Among the daily activities highlighted by the ALJ were 4 Plaintiff’s management of his personal care, preparation of simple meals, completion of 5 light chores, and shopping. (Id.) The ALJ stated that such activities were “inconsistent 6 with [Plaintiff’s] testimony that he is only able to lie down during the day, due to pain and 7 fatigue.” (Id.) Third, the ALJ discounted Plaintiff’s testimony because “[m]edical 8 providers have not recommended aggressive interventions like surgery for back pain, as 9 [Plaintiff] conservatively and effectively manages back pain with steroid injections, 10 physical therapy, and pain medication.” (Id.) Fourth, the ALJ discounted Plaintiff’s 11 testimony in light of Plaintiff’s “non-compliance with treatment,” including “an early 12 discharge from physical therapy, in 2017, due to poor compliance.” (Id.) 13 Plaintiff argues the ALJ failed to provide specific, clear and convincing reasons 14 supported by substantial evidence for discounting his symptom testimony. (Doc. 22 at 10- 15 19.) As for the first proffered reason (inconsistency with medical evidence), Plaintiff 16 argues that the ALJ applied the wrong standard, that many of the cited medical records 17 actually support Plaintiff’s testimony, and that the ALJ did not, at any rate, “tie-in the 18 characterization of the medical record with any particular symptom testimony” and thus 19 “failed to build the required ‘logical bridge’ from the evidence upon which he relied and 20 his conclusion.” (Id. at 10-14.) As for the second proffered reason (inconsistency with 21 daily activities), Plaintiff argues that the ALJ mischaracterized Plaintiff’s testimony as only 22 being able to lie down during the day, which “is not what [Plaintiff] stated,” and that the 23 ALJ’s analysis was further flawed because “a list of activities, without any information as 24 to the demands, frequency, or duration of those activities, does not show any contradiction 25 with [Plaintiff]s reported symptoms” and because “[t]he ALJ did not find . . . that a 26 substantial part of a typical day was spent engaged in activities inconsistent with disabling 27 limitations.” (Id. at 17-18.) As for the third proffered reason (relief from conservative 28 treatment and no recommendation of aggressive treatment), Plaintiff argues that it is 1 inaccurate to characterize the treatments he received (which included injections and 2 ablation procedures) as “conservative,” that “the ALJ was not qualified to infer that the 3 lack of recommendation for surgical intervention was a legitimate basis to discount the 4 severity of [Plaintiff’s] medical condition,” and that the ALJ’s analysis was also flawed for 5 other reasons. (Id. at 15-16.) As for the ALJ’s fourth proffered reason (non-compliance 6 with treatment), Plaintiff acknowledges that he was once non-compliant but faults the ALJ 7 for failing to identify the reason for this episode of non-compliance and argues that this 8 episode should not, at any rate, undermine his credibility because he was compliant with 9 many other recommended courses of therapy and treatment. (Id. at 18-19.) 10 An ALJ must evaluate whether the claimant has presented objective medical 11 evidence of an impairment “which could reasonably be expected to produce the pain or 12 symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007) 13 (citation omitted). “In evaluating the credibility of pain testimony after a claimant 14 produces objective medical evidence of an underlying impairment, an ALJ may not reject 15 a claimant’s subjective complaints based solely on a lack of medical evidence to fully 16 corroborate the alleged severity of pain.” Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 17 2005). However, the ALJ may “reject the claimant’s testimony about the severity of [the] 18 symptoms” provided that the ALJ also explains his decision “by providing specific, clear, 19 and convincing reasons for doing so.” Brown-Hunter v. Colvin, 806 F.3d 487, 488–89 (9th 20 Cir. 2015). 21 Applying these standards, the Court finds no error in the ALJ’s decision to discount 22 Plaintiff’s symptom testimony. The Court begins with the ALJ’s final proffered reason— 23 Plaintiff’s non-compliance with treatment recommendations. The Ninth Circuit has 24 recognized that such non-compliance qualifies as a permissible basis for discounting a 25 claimant’s symptom testimony. See, e.g., Chaudry v. Astrue, 688 F.3d 661, 672 (9th Cir. 26 2012) (affirming ALJ’s rejection of symptom testimony in part because “Chaudhry 27 repeatedly failed to seek treatment . . . or follow prescribed courses of treatment”); Orn v. 28 Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (“Our case law is clear that if a claimant 1 complains about disabling pain but fails to seek treatment, or fails to follow prescribed 2 treatment, for the pain, an ALJ may use such failure as a basis for finding the complaint 3 unjustified or exaggerated.”). Here, the record contains clear evidence of an episode of 4 non-compliance—a June 19, 2017 treatment note stating that “Patient has [b]een non- 5 compliant with therapy. Patient has been discharged from physical therapy.” (AR at 1456.) 6 Although Plaintiff appears to suggest it was the ALJ’s burden to determine why Plaintiff 7 was non-compliant, and that the lack of such an explanation means the ALJ was precluded 8 from discounting his credibility based on this episode,2 Ninth Circuit law is to the 9 contrary—it was Plaintiff’s burden to provide an explanation for his non-compliance, 10 which he failed to do. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (“Another such 11 form of evidence is an unexplained, or inadequately explained, failure to seek treatment or 12 follow a prescribed course of treatment. While there are any number of good reasons for 13 not doing so, a claimant’s failure to assert one, or a finding by the ALJ that the proffered 14 reason is not believable, can cast doubt on the sincerity of the claimant’s pain testimony.”) 15 (citations omitted) (emphasis added). Nor does Plaintiff cite any cases in support of his 16 apparent position that a “mulligan rule” applies to episodes of non-compliance with 17 therapy, such that an ALJ must ignore a single instance of being discharged from a 18 treatment regime and may only start discounting a claimant’s symptom testimony if there 19 are two or more episodes of non-compliance.3 Even if a different factfinder could have 20 concluded, based on the totality of Plaintiff’s treatment history, that this instance of non- 21 compliance did not undermine Plaintiff’s credibility, it was rational for the ALJ to reach a 22 different conclusion and find that the episode was discrediting. And “[w]here the evidence 23 is susceptible to more than one rational interpretation, one of which supports the ALJ’s 24 decision, the ALJ’s conclusion must be upheld.” Thomas, 278 F.3d at 954.

25 2 Plaintiff emphasizes in his brief that “the nature of [Plaintiff’s] non-compliance with this particular course of physical therapy is not explained.” (Doc. 22 at 18.) 26 3 Plaintiff argues in his brief that “[t]he ALJ did not point to other incidences of 27 providers’ reports of [Plaintiff’s] non-compliance with treatment. That [Plaintiff] did not complete one course of therapy, when he had other courses of physical therapy, invasive 28 pain management procedures, and no incidences of noncompliance with pain medications, fails to invalidate the entirety of [his] symptom testimony.” (Doc. 22 at 19.) 1 Because the ALJ identified a specific, clear and convincing reason for discounting 2 Plaintiff’s symptom testimony and that reason is supported by substantial evidence, it is 3 unnecessary to evaluate the sufficiency of the ALJ’s other proffered reasons for 4 discounting Plaintiff’s testimony. Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) 5 (“[S]everal of our cases have held that an ALJ’s error was harmless where the ALJ 6 provided one or more invalid reasons for disbelieving a claimant’s testimony, but also 7 provided valid reasons that were supported by the record.”). Nevertheless, in an abundance 8 of caution, the Court concludes that the ALJ’s second proffered reason—inconsistency 9 with activities of daily living—also qualifies as a permissible ground. When testifying 10 during the hearing, Plaintiff described his average day as “for the most part” laying in bed 11 and staring at the walls or watching television. (AR at 48-49.) Plaintiff provided a similar 12 answer in his function report: “My regular schedule is to stay in bed.” (Id. at 260.) 13 Although Plaintiff accuses the ALJ of mischaracterizing this testimony in the underlying 14 decision, the Court finds that the ALJ’s characterization of Plaintiff’s testimony was 15 rational and plausible. True, Plaintiff elsewhere testified about some of his daily activities 16 (id. at 51-52), but the ALJ could have rationally synthesized all of Plaintiff’s testimony as 17 suggesting that Plaintiff was essentially bed-ridden and left his bed only infrequently to 18 perform other activities. This description was, in turn, inconsistent with other evidence in 19 the record regarding Plaintiff’s activity level, including a report stating that Plaintiff 20 “reported no difficulties independently engaging in tasks related to his personal hygiene, 21 feeding himself, and managing basic financial tasks” as well as “let[ting] the dogs out.” 22 (Id. at 836-37.) Thus, the ALJ could have rationally concluded that Plaintiff was 23 exaggerating when describing the extent of his symptoms and that such exaggeration 24 detracted from Plaintiff’s credibility. Upholding an adverse-credibility finding in this 25 circumstance does not result in “disability claimants [being] penalized for attempting to 26 lead normal lives in the face of their limitations.” Reddick v. Chater, 157 F.3d 715, 722 27 (9th Cir. 1998). To the contrary, the Ninth Circuit has recognized that a “tendency to 28 exaggerate” is a “specific and convincing reason[] . . . for discrediting [a claimant’s] 1 testimony.” Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). 2 B. The ALJ committed no error in formulating Plaintiff’s RFC 3 Plaintiff argues that the ALJ “committed materially harmful error by determining 4 [Plaintiff’s RFC] without substantial evidence in [the] record.” (Doc. 22 at 19-21.) 5 Although Plaintiff’s argument on this point is not a model of clarity, Plaintiff appears to be 6 arguing that the ALJ’s formulation of the RFC was erroneous because, after rejecting all 7 of the medical source opinions in the record, the ALJ simply asserted, in conclusory 8 fashion, that the chosen RFC was “supported by [Plaintiff’s] medical history and daily 9 activities” without providing any explanation for this determination and despite lacking the 10 expertise to make this sort of determination. (Id.) In response, the Commissioner argues 11 that the RFC determination was supported by substantial evidence. (Doc. 25 at 12-16.) 12 “Residual functional capacity is an administrative finding reserved to the 13 Commissioner.” Lynch Guzman v. Astrue, 365 F. App’x 869, 870 (9th Cir. 2010). “We 14 will affirm the ALJ’s determination of [an] RFC if the ALJ applied the proper legal 15 standard and his decision is supported by substantial evidence.” Bayliss v. Barnhart, 427 16 F.3d 1211, 1217 (9th Cir. 2005). 17 Applying these standards, the Court finds no error. When formulating Plaintiff’s 18 RFC, the ALJ began by considering the RFC finding from the February 2010 decision in 19 Plaintiff’s earlier case, which was that Plaintiff could perform a full range of medium work. 20 (AR at 21-22.) The ALJ gave “limited weight” to this finding, explaining that it was 21 outdated due to the updated medical records and testimony. (Id.) Next, the ALJ assigned 22 “little weight” to the opinions of the state agency medical consultants, Dr. Michael Keer, 23 D.O., and Dr. Sarah Landers, M.D., who both opined that Plaintiff could perform medium 24 work. (Id.) On this point, the ALJ explained: 25 [I]t would not be appropriate to conclude [as the medical consultants did] that an individual with degenerative disc disease and bilateral knee and hip 26 pain would be capable of the lifting and carrying requirements of medium 27 work, given the full body nature of the mechanics required to engage in such lifting. [The medical consultants’] finding would further be inconsistent with 28 later evidence, showing a worsening in [Plaintiff’s] back and knee 1 conditions, which would support minimizing exertion as much as possible to 2 avoid exacerbating pain. Moreover, given [Plaintiffs] ongoing migraine headaches, causing disorientation and lightheadedness, the undersigned also 3 assesses environmental limitations, such as no exposure to unprotected 4 heights. 5|| Ud. at 22.) At no point during this analysis did the ALJ apply the wrong level standard or 6 || make assertions unsupported by substantial evidence. Indeed, the ALJ’s analysis was in || many respects favorable to Plaintiff, in that the ALJ rejected prior RFC formulations and 8 || medical source opinions suggesting that Plaintiff could perform a full range of medium || work in favor of a more restrictive RFC that limited Plaintiff to light work with additional 10 || restrictions. The ALJ also cited specific pieces of medical evidence in the record to support 11 || his conclusions. This was not an ipse dixit but a reasoned finding uninfected by error. 12 Accordingly, 13 IT IS ORDERED that the decision of the ALJ is affirmed. The Clerk is directed 14 || to enter judgment accordingly and terminate this action. 15 Dated this 7th day of January, 2022. 16 17 4 7? _ 18 "Dominic W. Lanza 19 United States District Judge 20 21 22 23 24 25 26 27 28

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