John I. Beeler v. Nancy A. Berryhill

Opinion

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA JOHN I. B.,1 Case No. 2:19-cv-02837-JC

Plaintiff, MEMORANDUM OPINION v. ANDREW SAUL,2 Commissioner of Social Security Administration, Defendant. I. SUMMARY On April 12, 2019, plaintiff filed a Complaint seeking review of the Commissioner of Social Security’s denial of his application for benefits. The parties have consented to proceed before the undersigned United States Magistrate Judge. /// 1Plaintiff’s name is partially redacted to protect his privacy in compliance 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. 2Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Commissioner Andrew Saul is hereby substituted in as the defendant in this action. 1 This matter is before the Court on the parties’ cross motions for summary judgment, respectively “Plaintiff’s Motion” and “Defendant’s Motion” (collectively, “Motions”). The Court has taken the Motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; Case Management Order ¶ 5. Based on the record as a whole and the applicable law, the decision of the Commissioner is AFFIRMED. The findings of the Administrative Law Judge (“ALJ”) are supported by substantial evidence and are free from material error. On October 30, 2013, plaintiff filed an application for Disability Insurance Benefits, alleging disability beginning on June 2, 2002, due to obesity, diabetes, high cholesterol, asthma, a broken ankle, and depression. (Administrative Record (“AR”) 258-59, 290). An ALJ subsequently examined the medical record and heard testimony from plaintiff (who was represented by counsel) and a vocational expert on November 19, 2015. (AR 60-75). On December 21, 2015, the ALJ determined that plaintiff was not disabled through plaintiff’s last insured date of December 31, 2003. (AR 90-95). On March 13, 2017, the Appeals Council granted review, vacated the ALJ’s 2015 decision, and remanded the matter for further administrative proceedings. (AR 101-02). The Appeals Council ordered the ALJ to obtain additional evidence concerning plaintiff’s left knee impairment; to further evaluate plaintiff’s alleged symptoms; to “give further consideration to [plaintiff’s] maximum residual functional capacity during the entire period at issue and provide rationale with specific references to evidence of record in support of assessed limitations,” obtaining additional evidence or explanation from medical sources as needed; and to obtain “supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on [plaintiff’s] occupational base.” (AR 101-02). 2 On November 15, 2017, the ALJ again examined the medical record and also heard testimony from plaintiff (who was again represented by counsel), and a vocational expert. (AR 34-59). On May 2, 2018, the ALJ again determined that plaintiff was not disabled through December 31, 2003, the date last insured. (AR 17-28). Specifically, the ALJ found: (1) plaintiff suffered from the following severe impairments: asthma, obesity, headache, left knee sprain/strain and tendinitis, left knee popliteal cyst, and left thigh tendinitis (AR 20); (2) plaintiff’s impairments, considered individually or in combination, did not meet or medically equal a listed impairment (AR 20); (3) plaintiff retained the residual functional capacity to perform medium work (20 C.F.R. §§ 404.1567(c)) with additional limitations3 (AR 20-21); (4) plaintiff could not perform any past relevant work (AR 26); (5) there are jobs that exist in significant numbers in the national economy that plaintiff could perform, specifically “hand packager,” “stores laborer,” and “food service worker” (AR 26-27); and (6) plaintiff’s statements regarding the intensity, persistence, and limiting effects of subjective symptoms were not entirely consistent with the medical evidence and other evidence in the record (AR 22). On February 19, 2019, the Appeals Council denied plaintiff’s application for review of the ALJ’s 2018 decision. (AR 1-3). A. Administrative Evaluation of Disability Claims To qualify for disability benefits, a claimant must show that he is unable “to engage in any substantial gainful activity by reason of any medically determinable 3The ALJ determined that plaintiff was limited to: (i) lifting, carrying, pushing, or pulling fifty pounds occasionally and twenty-five pounds frequently; (ii) standing and/or walking for about six hours in au eight-hour workday; (iii) sitting for about six hours in au eight-hour workday; (iv) avoiding even moderate exposure to respiratory irritants such as fumes, odors, dusts, aud gases. (AR 20-21). 3 physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (quoting 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted); 20 C.F.R. §§ 404.1505(a), 416.905. To be considered disabled, a claimant must have an impairment of such severity that he is incapable of performing work the claimant previously performed (“past relevant work”) as well as any other “work which exists in the national economy.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)). To assess whether a claimant is disabled, an ALJ is required to use the five- step sequential evaluation process set forth in Social Security regulations. See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006) (describing five-step sequential evaluation process) (citing 20 C.F.R. §§ 404.1520, 416.920). The claimant has the burden of proof at steps one through four —i.e., determination of whether the claimant was engaging in substantial gainful activity (step 1), has a sufficiently severe impairment (step 2), has an impairment or combination of impairments that meets or medically equals one of the conditions listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“Listings”) (step 3), and retains the residual functional capacity to perform past relevant work (step 4). Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citation omitted). The Commissioner has the burden of proof at step five —i.e., establishing that the claimant could perform other work in the national economy. Id. B. Federal Court Review of Social Security Disability Decisions A federal court may set aside a denial of benefits only when the Commissioner’s “final decision” was “based on legal error or not supported by substantial evidence in the record.” 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). The standard of review in disability cases is “highly deferential.” Rounds v. Comm’r

of Soc. Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015) (citation and quotation marks omitted). Thus, an ALJ’s decision must be upheld if the evidence could reasonably support either affirming or reversing the decision. Trevizo, 871 F.3d at 674-75 (citations omitted). Even when an ALJ’s decision contains error, it must be affirmed if the error was harmless. See Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (ALJ error harmless if (1) inconsequential to the ultimate nondisability determination; or (2) ALJ’s path may reasonably be discerned despite the error) (citation and quotation marks omitted). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Trevizo, 871 F.3d at 674 (defining “substantial evidence” as “more than a mere scintilla, but less than a preponderance’’) (citation and quotation marks omitted). When determining whether substantial evidence supports an ALJ’s finding, a court “must consider the entire record as a whole, weighing both the evidence that supports and the || evidence that detracts from the Commissioner’s conclusion[.]|” Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citation and quotation marks omitted). Federal courts review only the reasoning the ALJ provided, and may not affirm the ALJ’s decision “on a ground upon which [the ALJ] did not rely.” Trevizo, 871 F.3d at 675 (citations omitted). Hence, while an ALJ’s decision need not be drafted with “ideal clarity,” it must, at a minimum, set forth the ALJ’s reasoning “in a way that allows for meaningful review.” Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (citing Treichler, 775 F.3d at 1099). A reviewing court may not conclude that an error was harmless based on independent findings gleaned from the administrative record. Brown-Hunter, 806 F.3d at 492 (citations omitted). When a reviewing court cannot confidently conclude that an error was harmless, a remand for additional investigation or ///

explanation is generally appropriate. See Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (citations omitted). Plaintiff’s sole contention is that the ALJ erred by failing to provide clear, specific, and convincing reasons to discredit Plaintiff’s statements and testimony. (Plaintiff’s Motion at 6-10). Defendant contends that the ALJ provided valid and sufficient reasons to determine that plaintiff’s allegations of extreme and disabling symptoms were inconsistent with the overall record, including the mild medical findings and plaintiff’s limited and conservative treatment. (Defendant’s Motion at 3-8). For the reasons stated below, the Court concludes that a reversal or remand is not warranted. A. Pertinent Law When determining disability, an ALJ is required to consider a claimant’s impairment-related pain and other subjective symptoms at each step of the sequential evaluation process. 20 C.F.R. §§ 404.1529(a), (d). Accordingly, when a claimant presents “objective medical evidence of an underlying impairment which might reasonably produce the pain or other symptoms [the claimant] alleged,” the ALJ is required to determine the extent to which the claimant’s statements regarding the intensity, persistence, and limiting effects of his or her subjective symptoms (“subjective statements” or “subjective complaints”) are consistent with the record evidence as a whole and, consequently, whether any of the individual’s symptom-related functional limitations and restrictions are likely to reduce the claimant’s capacity to perform work-related activities. 20 C.F.R. §§ 404.1529(a), (c)(4); Social Security Ruling (“SSR”) 16-3p, 2017 WL 5180304, /// /// /// /// 6 at *4-*10.* When an individual’s subjective statements are inconsistent with other evidence in the record, an ALJ may give less weight to such statements and, in turn, find that the individual’s symptoms are less likely to reduce the claimant’s capacity to perform work-related activities. See SSR 16-3p, 2017 WL 5180304, at *8. In such cases, when there is no affirmative finding of malingering, an ALJ may “reject” or give less weight to the individual’s subjective statements “‘only by providing specific, clear, and convincing reasons for doing so.” Brown-Hunter, 806 F.3d at 488-89.° This requirement is very difficult to satisfy. See Trevizo, 871 F.3d at 678 (“The clear and convincing standard is the most demanding required in Social Security cases.”) (citation and quotation marks omitted). An ALJ’s decision “must contain specific reasons” supported by substantial evidence in the record for giving less weight to a claimant’s statements. SSR 16- 13, “Social Security Rulings reflect the Social Security Administration’s (“SSA”) official interpretation of pertinent statutes, regulations, and policies. 20 C.F.R. § 402.35(b)(1). Although they “do not carry the ‘force of law,’” Social Security Rulings “are binding on all components of the ... Administration[,]” and are entitled to deference if they are “consistent with the Social Security Act and regulations.” 20 C.F.R. § 402.35(b)(1); Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1224 (9th Cir. 2009) (citations and quotation marks omitted); see also Heckler v. Edwards, 465 U.S. 870, 873 n.3 (1984) (discussing weight and function of Social Security rulings). Social Security Ruling 16-3p superseded SSR 96-7p and, in part, eliminated use of the term “credibility” from SSA “sub-regulatory policy[]” in order to “clarify that subjective symptom evaluation is not an examination of an individual’s [overall character or truthfulness] ... [and] more closely follow [SSA] regulatory language regarding symptom evaluation.” See SSR 16-3p, 2017 WL 5180304, at *1-*2, *10-*11. The SSA subsequently republished SSR 16-3p making no change to the substantive policy interpretation regarding evaluation of a claimant’s subjective complaints, but clarifying that the SSA would apply SSR 16-3p only “Twhen making] determinations and decisions on or after March 28, 2016[,]” and that federal courts should apply “the rules [regarding subjective symptom evaluation] that were in effect at the time” an ALJ’s decision being reviewed became final. SSR 16-3p, 2017 WL 5180304, at *1, n.27. *It appears to this Court, based upon its research of the origins of the requirement that there be “specific, clear and convincing” reasons to reject or give less weight to an individual’s subjective statements absent an affirmative finding of malingering, that such standard of proof remains applicable even when SSR 16-3p governs. See Trevizo, 871 F.3d at 678-79 & n.5 (citations omitted).

3p, 2017 WL 5180304, at *10. An ALJ must clearly identify each subjective statement being rejected and the particular evidence in the record which purportedly undermines the statement. Treichler, 775 F.3d at 1103 (citation omitted). Unless there is affirmative evidence of malingering, the Commissioner’s reasons for rejecting a claimant’s testimony must be “clear and convincing.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995) (internal quotation marks omitted), as amended (Apr. 9, 1996). “General findings are insufficient[.]” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (citations omitted). If an ALJ’s evaluation of a claimant’s statements is reasonable and is supported by substantial evidence, it is not the court’s role to second-guess it. See Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation omitted). When an ALJ fails properly to discuss a claimant’s subjective complaints, however, the error may not be considered harmless “unless [the Court] can confidently conclude that no reasonable ALJ, when fully crediting the testimony, could have reached a different disability determination.” Stout, 454 F.3d at 1056; see also Brown- Hunter, 806 F.3d at 492 (ALJ’s erroneous failure to specify reasons for rejecting claimant testimony “will usually not be harmless”). B. Plaintiff's Statements and Testimony On January 27, 2014, plaintiff completed a function report, asserting the following: He was unable to work because he could not “walk or stand for a long time” and was at “risk of falling.” (AR 319). He lived at home with his wife, and his activities included watching television, using the computer, talking on the phone, reading, and “tr[ying] to walk and stand.” (AR 319). He did not prepare meals because it was difficult to stand and “too hard to carry things and walk with them for [a] long time.” (AR 321). Other than sitting and folding towels, he did not do chores in the house or yard because it was “hard” and he “might fall.” (AR 321-22). He could drive a car, but “not long,” and did not shop. (AR 322). He ///

could lift only five pounds, and could walk only fifteen feet before needing to rest for about twenty minutes. (AR 324). Plaintiff testified about his activities and limitations at the hearings on November 19, 2015, and November 15, 2017. (See AR 37-52 (2015 hearing testimony); AR 63-72 (2017 hearing testimony)). Plaintiff stated the following: He last worked full-time in 2002 as a delivery and forklift driver for a printing company, which ended when he fell in the warehouse, injuring his left knee and leg.6 (AR 39, 42, 65). After his injury, in 2002, he continued working for about three or four hours a day, on “modified duty.” (AR 44). During that time, he could not lift more than five pounds or “do any distance walking,” but “sitting was sort of okay” for the most part. (AR 44). He sat for about one and a half or two hours of the time at work, but not continually. (AR 48). When he came home, he would lie down on the couch for most of the rest of the day, only getting up to use the bathroom. (AR 45-47). He was able to shower with the help of a chair. (AR 46-47). Plaintiff also testified: To get around now, he depends on a walker, which his doctor prescribed around 2012, after he broke his ankle on the stairs. (AR 38- 39, 64-68, 71). He can walk for about “25 steps max,” and can stand for less than twenty minutes, no more. (AR 38, 64). Plaintiff testified in 2015 that he can sit for about a half hour. (AR 64). In 2017, he said he can sit for “[m]aybe 15 to 20 minutes and then [has] to stand up because [his] waist down gets numb and [his] feet fall asleep.” (AR 38). Plaintiff stated that he spends “about 22 hours” a day sitting down, watching television in his living room. (AR 68). Plaintiff further testified: He does not help with laundry, cooking, or grocery shopping. (AR 38, 64). He helps clean the house, but cannot stand for long to do it. (AR 38, 64). His wife sometimes helps him bathe, but he can 6The injury apparently occurred on March 19, 2002. (See AR 601). 9 manage it on his own “[e]very once in a great while.” (AR 69). He needs to lie down to dress himself. (AR 69). He can drive himself, and leaves the house about once a week to visit friends. (AR 37, 63, 70). C. Analysis The ALJ found that plaintiff’s “medically determinable impairments could reasonably be expected to cause the alleged symptoms,” but determined that plaintiff’s “statements concerning the intensity, persistence and limiting effects of these symptoms” were “not entirely consistent with the medical evidence and other evidence for the reasons explained in th[e] decision.” (AR 22). Plaintiff suggests that the ALJ’s reasons for discrediting his testimony were not sufficiently specific and legitimate because the ALJ did not “pinpoint the specific testimony with specific reasons,” and instead merely “recit[ed] the medical evidence in support of his residual functional capacity determination,” (Plaintiff’s Motion at 8). The Court disagrees. The ALJ discounted plaintiff’s testimony based on the objective medical evidence and plaintiff’s conservative treatment, which the ALJ explained as follows: The medical record does not demonstrate evidence of symptoms, objective medical abnormalities, diagnoses, or treatment consistent with the severity of symptoms as alleged by [plaintiff]. The medical record from the relevant period prior to [plaintiff’s] date last insured demonstrates minimal evidence of significant objective medical findings, as demonstrated by diagnostic imaging studies. Moreover, treatment recommendations were conservative, involving mostly routine medication management and physical therapy. It has been indicated by examining and treating physicians that [plaintiff’s] subjective symptoms were inconsistent with objective medical findings. An orthopedic evaluation conducted as part of [plaintiff’s] 10 workers’ compensation matter indicated greater functional limitations, but it appears that the assessed functional limitations were based primarily on [plaintiff’s] subjective reports, as there were no new significant objective medical abnormalities demonstrated by diagnostic imaging studies, and treatment recommendations remained generally unchanged involving conservative modalities. (AR 22). The ALJ then went on to discuss plaintiff’s medical records in greater detail, highlighting the mild examination findings and conservative treatments. (See AR 22-23). Substantial evidence supports the ALJ’s findings, which constitute specific and legitimate grounds to discount plaintiff’s testimony. First, the ALJ properly determined that plaintiff’s testimony about the intensity, persistence and limiting effects of his symptoms was not supported by the conservative nature of his treatment. See Parra v. Astrue, 481 F.3d 742, 750- 51 (9th Cir. 2007) (“The ALJ also noted that [the claimant’s] physical ailments were treated with over-the-counter pain medication. We have previously indicated that evidence of ‘conservative treatment’ is sufficient to discount a claimant’s testimony regarding severity of an impairment.”) (citation omitted), cert. denied, 552 U.S. 1141 (2008); Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) (an ALJ may properly rely on the fact that prescribed conservative treatment suggests a lower level of both pain and functional limitation). As the ALJ observed, plaintiff’s treatment mainly involved physical therapy and “routine medication management.” (AR 22). These were first prescribed at the time of plaintiff’s injury in March 2002 and continued through the relevant period. (See AR 573-74, 598, 602, 622). Plaintiff’s medication treatment appears to have consisted mainly of ibuprofen, along with Zantac (ranitidine) and Soma (carisprodol). (AR 598, 602, 622). As the ALJ noted, plaintiff underwent an initial comprehensive general surgical consultation on October 15, 2002, but “no surgical intervention was indicated and treatment recommendations remained conservative during this 11 period.” (AR 22, 599-606). On an orthopedic evaluation dated March 27, 2003, plaintiff’s treating physician determined that plaintiff’s ongoing treatment “should consist of conservative care, including orthopaedic follow-up, the taking of symptomatic medication, and physical therapy.” (AR 576). Second, the record supports the ALJ’s finding that plaintiff's testimony about the intensity, persistence and limiting effects of his symptoms was not supported by the objective medical evidence. Notably, the relevant period at issue is solely between June 2, 2002, the alleged onset date, and December 31, 2003, the last insured date. (See AR 19-28). The main conditions allegedly preventing plaintiff from working full-time during that period were his ongoing obesity and knee and leg injuries sustained when he fell in the warehouse on March 19, 2002. (AR 39, 42, 65, 573). On the day of the injury, an examination showed “full range of motion, with pain on resisted motion,” and he was diagnosed with left knee contusion/strain. (AR 22, 573). An examination two days later showed “mild tenderness over the left knee, with mild discomfort on range of motion.” (AR 22, 573). As the ALJ pointed out, a progress report on April 15, 2002 indicated that plaintiff’s “[e]xamination reveal[ed] subjective complaint outweigh objective findings.” (AR 22, 574). On March 27, 2003, plaintiff’s left knee and thigh had mild swelling and pain to palpation, with limited range of motion in the knee, and he was diagnosed with left knee sprain/strain, tendinitis in the left knee and thigh, and a 4 cm popliteal cyst on the left knee. (AR 23, 573, 575). At an initial orthopedic examination on April 15, 2002, the examination showed an antalgic gait to the left, tenderness to palpation over the medial joint line, and decreased range of motion, but X-rays were within normal limits. (AR 22, 574). As the ALJ observed, there do not appear to have been any significant changes in objective findings for the remainder of the relevant period. (AR 23; see AR 573-75). The ALJ reasonably determined that these findings are inconsistent with plaintiff’s allegations of debilitating pain and functional limitations, including that he could 12 not lift over five pounds, was limited to sitting down for most of the three or four hours he could spend at work, and needed to spend the rest of the day lying down, only getting up to use the bathroom. (See AR 44-48). While plaintiff correctly points out that a lack of objective medical evidence is not enough, by itself, to discount his testimony (see Plaintiff’s Motion at 8), it is nonetheless a relevant factor. See Burch v. Barnhart, 400 F.3d at 681 (“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”). In sum, plaintiff’s conservative treatment and mild or moderate objective medical findings, considered together, constitute specific and legitimate reasons to discount plaintiff’s allegations. Moreover, these findings are supported by substantial evidence in the record. Accordingly, plaintiff has failed to identify any material error in the ALJ’s decision. For the foregoing reasons, the decision of the Commissioner of Social Security is AFFIRMED. DATED: May 14, 2020 _____________/s/____________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 13