1 2 3 4 5 8 9 MICHAEL PAUL B., Case No.: 24-CV-01859-RBM-AHG
10 Plaintiff, ORDER AFFIRMING 11 v. ADMINISTRATIVE LAW JUDGE DECISION
Commissioner of the Social Security 13 Administration,1 [Doc. 13] 14 Defendant. 15 16 17 Plaintiff Michael Paul B.2 (hereinafter “Plaintiff”) brings this action pursuant to 42 18 U.S.C. § 405(g), seeking review of the denial of his application for Social Security 19 disability benefits. (Doc. 1.) On May 13, 2025, the parties filed a joint motion for judicial 20 review of the Administrative Law Judge’s (“ALJ”) partially favorable decision,3 finding 21 Plaintiff disabled for a closed period from September 21, 2021 to November 14, 2022. 22 (Doc. 13 (“Joint Motion for Judicial Review”).) The Court has considered the parties’ 23
24 25 1 Frank Bisignano is now the Commissioner of the Social Security Administration and he is automatically substituted as a party pursuant to Federal Rule of Civil Procedure 25(d). 26 2 Pursuant to Civil Local Rule 7.1(e)(6)(b), the Court refers to Plaintiff by first name and 27 last initial. 3 The ALJ’s decision became the final decision of the Commissioner of Social Security 28 1 briefing (Doc. 13) as well as the entire Administrative Record (Doc. 9). For the reasons 2 discussed below, the Court AFFIRMS the ALJ’s decision. 4 In June 2022, Plaintiff submitted an application for a period of disability and 5 disability insurance benefits, alleging a disability onset date of September 21, 2021 due to 6 numerous conditions including, as relevant here, right knee anterior cruciate ligament 7 (“ACL”) tear and reconstruction. (AR 184–85, 216.4) His claim was initially denied in 8 September 2022 and upon reconsideration in early February 2023. (AR 18.) On February 9 13, 2023, Plaintiff filed a written request for a hearing before an ALJ, which was held by 10 telephone on October 20, 2023. (AR 18.) In a decision dated February 5, 2024, the ALJ 11 issued a partially favorable decision, finding that Plaintiff was disabled from September 12 21, 2021 through November 14, 2022, but not disabled after November 15, 2022 and 13 denying him benefits thereafter. (AR 18–36.) 14 In rendering his decision, the ALJ followed the Commissioner’s five-step sequential 15 evaluation process, see 20 C.F.R. § 404.1520(a), and the additional steps required if the 16 ALJ finds a “claimant’s disability does not continue through the date of the decision” based 17 on medical improvement. (AR 20 (citing 20 C.F.R. § 1594(a)).) 18 At step one, the ALJ found that Plaintiff had not engaged in substantial gainful 19 activity since September 21, 2021, the date he became disabled. (AR 21.) At step two, the 20 ALJ found that from September 21, 2021 through November 14, 2022, Plaintiff “had the 21 following severe impairments: right knee ACL tear, status post tibial bone graft repair; 22 tenosynovitis of the left ankle; degenerative joint disease of the left shoulder; and asthma.” 23 (AR 22.) The ALJ also found that the medical and other evidence established that 24 Plaintiff’s hypertension, penis injury, sleep apnea, chronic hoarseness due to vocal cord 25 polyps, angina, and gastroesophageal disease have no more than a minimal effect on basic 26 27 4 “AR” refers to the page numbers on the Administrative Record lodged on December 13, 28 1 work activities and therefore are not severe impairments. (AR 22.) 2 At step three, the ALJ found that Plaintiff’s combination of impairments did not 3 meet a Listing and specifically discussed Listings 1.17 and 1.18. (AR 23.) In particular, 4 the ALJ explained: 5 The claimant’s right knee and left ankle impairments were analyzed under 6 Listings 1.17 and 1.18. However, these Listings have not been met because 7 there is no medical documentation of a documented medical need for a walker, bilateral canes, bilateral crutches, or a wheeled and seated mobility device 8 involving the use of both hands 1.17(C) and 1.18(D)(1); or an inability to use 9 one upper extremity to independently initiate, sustain, and complete work- related activities involving fine and gross movements, and a documented 10 medical need for a one-handed, hand-held assistive device that requires the 11 use of the other upper extremity or a wheeled and seated mobility device involving the use of one hand (1.17(C) and 1.18(D)(2)); or an inability to use 12 both upper extremities to the extent that neither can be used to independently 13 initiate, sustain, and complete work-related activities involving fine and gross movements (1.17(C) and 1.18(D)(1)(3)). 14
15 (AR 23.) 16 As to Plaintiff’s asthma, the ALJ reiterated that this impairment did not meet a 17 Listing and further noted that there was no evidence of any exacerbation or complication 18 requiring hospitalization as required under 3.03(B). (AR 23.) 19 Next, the ALJ determined that Plaintiff had the following residual functional 20 capacity (“RFC”): 21 [F]rom September 21, 2021 through November 14, 2022, the claimant had the 22 residual functional capacity to lift and carry 20 pounds occasionally and 10 23 pounds frequently; stand and/or walk for 2 hours out of an 8-hour workday; sit for 6 hours out of an 8-hour workday; frequently push or pull with the 24 bilateral lower extremities; frequently push or pull with the bilateral upper 25 extremities; occasionally climb ramps and stairs; never climb ladders, ropes or scaffolds; occasionally balance, stoop, kneel, crouch, and crawl; frequently 26 reach overhead with the left upper extremity; and avoid concentrated exposure 27 [to] pulmonary irritants and hazards (such as operational control of moving machinery and hazards). 28 1 (AR 23.) 2 In reaching this decision, the ALJ considered Plaintiff’s Function Report, in which 3 he stated that 4 he has problems with lifting, standing, reaching, kneeling, squatting, running, 5 stooping, pushing, pulling, and climbing stairs (Ex. 4E/5-6, 10). He stated that 6 he was able to transport his kids to and from school, prepare his own meals daily (30-60 minutes), light chores (taking out trash and watering) (Ex. 4E/6- 7 7). He denied needing help with personal needs. He goes out multiple times a 8 day and gets around by driving or getting a ride to take his children to school and go shopping (Ex. 4E/8-9). While he was recovering from surgery, he was 9 using crutches, a cane and a brace (Ex. 4E/11). 10 11 (AR 24.) 12 The ALJ documented that Plaintiff had sustained a work-related injury in 2017, 13 which necessitated ACL reconstructive repair surgery of the right knee and [a]fter 14 undergoing ACL surgery repair surgery of the right knee on January 4, 2017, his symptoms 15 resolved sufficiently that he was able to resume working. (AR 24.) The ALJ then explains 16 he “continued to work through September [2]1, 2021, when he re-injured his right knee by 17 hyperextending the knee.” (AR 24.) The ALJ then discussed Plaintiff’s medical history, 18 treatment, claimed limitations, and daily activities at length. (AR 24–25.) Namely, the 19 ALJ noted that Plaintiff underwent his first of two additional ACL reconstruction surgeries 20 on August 23, 2022. (AR 25.) The ALJ stated: 21 By November 15, 2022, the claimant had recovered sufficiently from the surgery in August 2022 such that he either had no pain or 3/10 pain; that he 22 was ‘back to full activity’ that included scootering, jacuzzi and walking; and 23 his gait was observed to be independent and normal without the need for a brace (Ex. 6F/425). 24
25 (AR 25.) 26 The ALJ further noted that Plaintiff underwent the second stage of this 27 reconstruction surgery on February 15, 2023, and that “records note the recovery was 28 quick. In fact, two months after the second stage surgery in April 2023, treatment notes 1 document the claimant going ‘up and down stairs 50 times a day,’ with independent gait 2 and no need for a brace or assistive device.” (AR 25.) 3 The ALJ also found that Plaintiff “had a longstanding history of left shoulder pain” 4 but that there was no record of complaints of shoulder pain since September 21, 2021. (AR 5 26.) The ALJ further recognized that Plaintiff injured his left knee and ankle during a 6 scooter incident in February 2022. (AR 26.) The ALJ noted that Plaintiff was prescribed 7 a brace for the left ankle in August 2022, but when seen again in January 2023, the podiatric 8 surgeon noted “that Plaintiff did not follow-up with the brace or otherwise follow up on 9 treatment of the ankle symptoms and that the claimant reported ‘no issues with the ankle’ 10 and that it was stable.” (AR 26.) At the hearing, Plaintiff “testified that he no longer needs 11 a cane for the left ankle unless he reinjures it again.” (AR 26.) 12 The ALJ also concluded that the environmental restrictions—the limitation 13 regarding work in an environment with no concentrated exposure to pulmonary irritants— 14 considers Plaintiff’s asthma based upon his responses in the Asthma Questionnaire. (AR 15 27.) 16 Lastly, the ALJ considered and summarized two physicians’ opinions, both of whom 17 reviewed Plaintiff’s record and opined as to his RFC as follows: 18 H. Arora, M.D., reviewed the record on September 28, 2022, and opined that 19 the claimant had the residual functional capacity to lift and carry 20 pounds 20 occasionally and 10 pounds frequently; stand and/or walk for 6 hours out of an 8-hour workday; sit for 6 hours out of an 8-hour workday; occasionally 21 climb ramps and stairs; occasionally climb ladders, ropes or scaffolds; 22 frequently balance and stoop; occasionally kneel, crouch, and crawl; and avoid concentrated exposure to fumes, odors, dusts, gases, poor ventilation 23 and other pulmonary irritants (Ex. 1A). For the period from September 21, 24 2021 through November 14, 2022, this opinion is persuasive except that the claimant should be restricted to stand or walk for 2 hours total in an 8-hour 25 workday as well as frequent push or pull with the bilateral lower extremities 26 due to the claimant’s right knee hyperextension injury that resulted in a complete rupture of the ACL graft from the ACL surgery in 2017 and 27 posterior horn medial meniscus tear as shown by MRI scan (Ex. 1F/43, 63, 28 134). The record documents corresponding abnormal clinical signs and 1 symptoms as the need for surgery of the right knee in August 2022. It is reasonable that the limitation continued for recovery from the surgery until 2 November 15, 2022, as discussed above. Further, in light of the longstanding 3 history of left shoulder impairment, it is reasonable that he should be limited to frequent push or pull with the left upper extremity and frequent overhead 4 reach with the left upper extremity. 5 6 Julie Chu, M.D., reviewed the record on February 2, 2023, and opined that the claimant had the residual functional capacity to lift and carry 20 pounds 7 occasionally and 10 pounds frequently; stand and/or walk for 6 hours out of 8 an 8-hour workday; sit for 6 hours out of an 8-hour workday; frequently push or pull with the bilateral lower extremities; frequently push or pull with the 9 left upper extremity; occasionally climb ramps and stairs; never climb ladders, 10 ropes or scaffolds; frequently balance; occasionally stoop, kneel, crouch, and crawl; frequently reach overhead with the left upper extremity; and avoid 11 concentrated exposure to hazards (Ex. 3A). For the period from September 12 21, 2021 through November 14, 2022, this opinion is persuasive except that the claimant should be restricted to stand or walk for 2 hours total in an 8-hour 13 workday … due to the claimant’s right knee hyperextension injury that 14 resulted in a complete rupture of the ACL graft from the ACL surgery in 2017 and posterior horn medial meniscus tear as shown by MRI scan (Ex. 1F/43, 15 63, 134). The record documents corresponding abnormal clinical signs and 16 symptoms as the need for surgery of the right knee in August 2022. It is reasonable that the limitation continued for recovery from the surgery until 17 November 15, 2022, as discussed above. 18 19 (AR 27–28.) 20 At step four, based on Plaintiff’s RFC and a vocational expert’s testimony, the ALJ 21 determined that Plaintiff was unable to perform any past relevant work from September 22 21, 2021 through November 14, 2022. (AR 28.) 23 Finally, at step five, the ALJ considered Plaintiff’s RFC, age, education, and past 24 work experience and concluded that from September 21, 2021 through November 14, 2022, 25 “there were no jobs that existed in significant numbers in the national economy that the 26 claimant could have performed.” (AR 29.) As a result, the ALJ determined that Plaintiff 27 was disabled from September 21, 2021 through November 14, 2022. (AR 29.) 28 /// 1 Regarding the ALJ’s finding that Plaintiff’s disability ended on November 14, 2022, 2 the ALJ explained that a medical improvement occurred on November 15, 2022: 3 By November 15, 2022, treating records no longer documented complaints of 4 right knee pain, instability, popping or significantly reduced range of motion 5 (Ex. 1F, 6F). As discussed below, the claimant briefly required assistive devices and the use of a knee brace after the second part of a staged ACL 6 revision surgery in February 2023. However, physical therapy progress notes 7 show that the claimant quickly recovered from that surgery with reduction of postoperative pain, progression to independent and normal gait without the 8 need for an assistive device, increased strength and stability such that he could 9 engage in robust activities. Physical exams by treating sources show no significant abnormal clinical findings of the right knee, which correlate with 10 imaging studies. 11 12 (AR 30.) 13 The ALJ found that Plaintiff’s RFC increased on November 15, 2022 as follows: 14 [B]eginning November 15, 2022, the claimant has had the residual functional 15 capacity to lift and carry 20 pounds occasionally and 10 pounds frequently; 16 stand and/or walk for 6 hours out of an 8-hour workday; sit for 6 hours out of an 8-hour workday; frequently push or pull with the bilateral lower 17 extremities; frequently push or pull with the bilateral upper extremities; 18 occasionally climb ramps and stairs; never climb ladders, ropes or scaffolds; occasionally balance, stoop, kneel, crouch, and crawl; frequently reach 19 overhead with the left upper extremity; and avoid concentrated exposure [to] 20 pulmonary irritants and hazards (such as operational control of moving machinery and hazards). 21
22 (AR 30.) 23 In reaching this decision, the ALJ found that Plaintiff’s “statements concerning the 24 intensity, persistence and limiting effects of these symptoms are not entirely consistent 25 with the medical evidence and other evidence in the record for the reasons explained in this 26 decision.” (AR 30.) For example, the ALJ noted that Plaintiff had fully recovered from 27 the August 2022 surgery by November 15, 2022 and was “‘back to full activity’ that 28 included scootering, jacuzzi and walking; and his gait was observed to be independent with 1 no gait deviations (Ex. 6F/245).” (AR 31.) Further, the ALJ observed that “[i]n January 2 2023, he was riding his mountain bike (Ex. 6F/463) and after crashing the bike, he had 3 swelling in the right foot (Ex. 6F/469).” (AR 31.) Moreover, although Plaintiff underwent 4 a second stage reconstructive surgery in February 2023, the ALJ summarized Plaintiff’s 5 postoperative medical record, which generally reflected that Plaintiff “did well after the 6 surgery” and that “there were no document[ed] significant residuals from this surgery.” 7 (AR 31.) 8 The Appeals Council denied review on August 14, 2024, explaining that there was 9 “no reason under [Defendant’s] rules to review the [ALJ]’s decision.” (AR 1.) On October 10 15, 2024, Plaintiff filed the instant action seeking review by this Court. (Doc. 1.) 12 The Court reviews the ALJ’s decision and “may set aside a denial of benefits only 13 if it is not supported by substantial evidence or if it is based on legal error.” Ukolov 14 v. Barnhart, 420 F.3d 1002, 1004 (9th Cir. 2005) (quoting Thomas v. Barnhart, 278 F.3d 15 947, 954 (9th Cir. 2002)); 42 U.S.C. § 405(g); Bayliss v. Barnhart, 427 F.3d 1211, 1214 16 (9th Cir. 2005). Substantial evidence is “such relevant evidence as a reasonable mind 17 might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 18 1154 (2019) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see 19 also Smartt v. Kijakazi, 53 F.4th 489, 494 (9th Cir. 2022) (citing Vasquez v. Astrue, 572 20 F.3d 586, 591 (9th Cir. 2009)). It is “more than a mere scintilla but, less than a 21 preponderance . . . .” Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (quoting 22 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)). The Court “must consider 23 the entire record as a whole and may not affirm simply by isolating a specific quantum of 24 supporting evidence.” Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (internal 25 quotation marks and citation omitted). The Court “may not affirm the ALJ on a ground 26 upon which he did not rely.” Garrison, 759 F.3d at 1010. “[I]f evidence exists to support 27 more than one rational interpretation, [the Court] must defer to the [ALJ’s] decision.” 28 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Additionally, 1 the Court will not reverse for harmless error. Marsh v. Colvin, 792 F.3d 1170, 1173 (2015) 2 (“ALJ errors in social security cases are harmless if they are ‘inconsequential to the 3 ultimate nondisability determination’”) (quoting Stout v. Comm’r, Soc. Sec. Admin., 454 4 F.3d 1050, 1055 (9th Cir. 2006)). 6 Plaintiff raises three issues in asking the Court to remand this matter to the ALJ. 7 (Doc. 13 at 4.) First, he asserts that the ALJ materially erred when he failed to consider 8 whether Plaintiff’s impairments met or equaled Listing 1.21. (Doc. 13 at 5–12, 15–18.) 9 Second, Plaintiff contends that the ALJ’s finding that he experienced a medical 10 improvement related to the ability to work on November 15, 2022 is unsupported by 11 substantial evidence. (Doc. 13 at 18–23, 28–31.) Third, Plaintiff argues that the ALJ’s 12 assessment of his testimony was not supported by clear and convincing reasons. (Doc. 13 13 at 31–34, 39–42.) The Court addresses each of these issues below. 14 A. Failure to Address Listing 1.21 15 The ALJ’s decision does not include a discussion of whether Plaintiff’s impairments 16 met or equaled Listing 1.21. (AR 23 (addressing other Listings).) Having reviewed the 17 entire record, the Court finds that there no error in not specifically discussing Listing 1.21. 18 In his decision, the ALJ explained that he found Plaintiff’s impairments in isolation 19 or combination “do not meet or medically equal any listing in Appendix 1, Subpart P, 20 Regulations No. 4, including Listings 1.17 and 1.18.” (AR 29.) The ALJ then specifically 21 discussed Listings 1.17 and 1.18. (AR 29–30.) According to Plaintiff, this was erroneous 22 because his impairments satisfy Listing 1.21 and “the burden is on the ALJ ‘to identify any 23 relevant listing(s) in light of the evidence which a claimant has produced.’” (Doc. 13 at 5– 24 6) (first quoting Yarborough v. Kijakazi, No. 22-CV-01888, 2023 WL 2966204, at *4 (D. 25 Colo. Apr. 14, 2023) (internal citations omitted); and then citing Cunningham v. Astrue, 26 No. CV 11-144 JC, 2011 WL 5103760, at *3 (C.D. Cal. Oct. 27, 2011) (“Remand is 27 appropriate where an ALJ fails adequately to consider a listing that plausibly applies to a 28 plaintiff’s case”)). 1 As a threshold matter, the parties dispute whether Listing 1.21 can apply to ACL 2 injuries and reconstruction surgeries. (Doc. 13 at 12–18.) Title 20 of the Code of Federal 3 Regulations, Chapter III, Part 404, Subpart P, Appendix 1 sets forth a listing of 4 impairments (the “Listings”). Section 1.21 provides, in full: 5 6 1.21 Soft tissue injury or abnormality under continuing surgical management …, documented by A, B, and C: 7 A. Evidence confirms continuing surgical management 20 C.F.R. Pt. 8 404, Subpt. P, App. 1 § 1.21. directed toward saving, reconstructing, or replacing the affected part of the body. AND 9 B. The surgical management has been, or is expected to be, ongoing for 10 a continuous period of at least 12 months. AND C. Maximum benefit from therapy 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 11 1.21. has not yet been achieved. 12 13 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.21. 14 Plaintiff contends that his ACL injury5 was a soft tissue injury encompassed by this 15 Listing. (Doc. 13 at 5–12.) Defendant argues that because Plaintiff’s ACL injury was a 16 ligament tear to his knee, it is to be evaluated under Listings 1.17 and 1.18. (Id. at 12–18). 17 Subsection 1.00(L) of the Listings sets forth what the Social Security Administration 18 considers when evaluating soft tissue injuries under Listing 1.21. “Examples include 19 malformations, third- and fourth-degree burns, crush injuries, craniofacial injuries, 20 avulsive injuries, and amputations with complications of the residual limb(s).” 20 C.F.R. 21 Pt. 404, Subpt. P, App. 1 § 1.00(L)(1)(c). Here, Plaintiff does not explain how an ACL 22 tear is a soft tissue injury akin to the examples given, such as burns. Defendant argues that 23 Plaintiff’s ACL injury falls within the “carveout” provided in subsection 1.00(L), which 24 specifies that abnormalities or injuries of bones in the lower extremities are to be evaluated 25
26 27 5 Unless otherwise noted, all references to Plaintiff’s “ACL injury” are to the September 21, 2021 incident wherein Plaintiff reinjured his right knee and tore his ACL for a second 28 1 under Listings 1.17, 1.18, or 1.22. Id. § 1.00(L)(1)(d). According to Defendant, Listing 2 1.17 explicitly contemplates knee-related reconstructive surgery, such as Plaintiff’s, as it 3 encompasses “Reconstructive surgery or surgical arthrodesis of a major weight-bearing 4 joint,” and the knee is a major weight-bearing joint. Id. § 1.00(H)(2). Plaintiff replies that 5 the ACL is a ligament, which is a soft tissue and not a bone, and so is covered by Listing 6 1.21 and not subject to any “carveout.” (Doc. 13 at 15–16.) 7 First, the Court finds the ALJ did not err in not considering Listing 1.21 in addition 8 to 1.17 and 1.18. However, even if the Court agreed that Plaintiff’s ACL injury is not 9 subject to any carveout and would plausibly qualify for consideration under Listing 1.21, 10 any error by the ALJ in not considering it was harmless because Plaintiff was not under 11 continuing surgical management for a period of more than one year as required by Listing 12 1.21. Plaintiff contends that his ACL injury “was under continuing surgical management 13 starting in February or March 2022, when Dr. Ohara discussed and scheduled the revision 14 surgery in what was a planned two-stage surgery, first for bone grafting and second for 15 ACL repair.” (Doc. 13 at 11.) However, according to the Listings, “[s]urgical management 16 includes the surgery(ies) itself, as well as various post- surgical procedures, surgical 17 complications, infections or other medical complications, related illnesses, or related 18 treatments that delay your attainment of maximum benefit from therapy.” 20 C.F.R. Pt. 19 404, Subpt. P, App. 1 § 1.00(L)(1)(a). Plaintiff does not meaningful argue that discussing 20 and scheduling surgery amounts to surgical intervention, post-surgical procedure, or other 21 related treatments. 22 Moreover, the Listings specify that in deciding whether an impairment satisfies 23 Listing 1.21, a claimant must produce “evidence from an acceptable medical source(s) 24 confirming that the surgical management has continued, or is expected to continue, for at 25 least 12 months from the date of the first surgical intervention.” 20 C.F.R. Pt. 404, Subp. 26 P, App. 1 § 1.00.L.1.b (emphasis added). Here, Plaintiff’s first surgery occurred on August 27 23, 2022. (AR 25.) Plaintiff’s second and final surgery occurred only six months later in 28 February 2023. (Id.) For this reason, the cases Plaintiff relies on are inapposite as they 1 involved claimants whose multiple surgeries spanned more than one year. See Charles B. 2 v. O’Malley, No. 3:23-CV-00001, 2024 WL 1152403, at *8 (S.D. W. Va. Feb. 29, 2024), 3 report and recommendation adopted, No. CV 3:23-0001, 2024 WL 1149277 (S.D. W. Va. 4 Mar. 15, 2024) (finding error in the ALJ’s failure to consider Listing 1.21 where the 5 claimant had three surgeries spanning approximately two years); see also Nicole R. v. 6 Kijakazi, No. 22 C 1891, 2023 WL 1970360, at *2 (N.D. Ill. Feb. 13, 2023) (finding that 7 the ALJ was “too dismissive of consideration of Listing 1.21” in a case involving a claimant 8 whose injury had not healed after sixteen months and three surgeries). 9 Here, the record demonstrates that Plaintiff’s surgical management began on the date 10 of his first surgical intervention, August 23, 2022. There is no evidence in the record that 11 Plaintiff was still under “surgical management” beyond August 2023. To that end, 12 Plaintiff’s own summary of the evidence ends with a report of him doing “strength 13 exercises 3–4 times daily … and constantly climbing stairs” in May 2023. (Doc. 13 at 10.) 14 Accordingly, because there is no evidence in the record that Plaintiff was under continuing 15 surgical management for more than one year, the Court finds it was not in error for the ALJ 16 to omit a discussion of whether Plaintiff’s impairments equaled Listing 1.21. 17 B. Medical Improvement 18 Next, Plaintiff contends that the ALJ erred in determining he experienced a medical 19 improvement on November 15, 2022. An individual receiving social security benefits may 20 have those benefits terminated if there is substantial evidence of medical improvement that 21 makes the individual able to engage in substantial gainful activity. 42 U.S.C. §§ 423(f), 22 1382c(a)(4); 20 C.F.R. § 416.994(b). A “[m]edical improvement is any decrease in the 23 medical severity” of a claimant’s impairment, 20 C.F.R. § 404.1594(b)(1), as “determined 24 by a comparison of prior and current medical evidence which must show that there have 25 been changes (improvement) in the symptoms, signs or laboratory findings associated with 26 that impairment(s).” Id. § 404.1594(c)(1). The Commissioner bears the burden of 27 establishing that such improvement has taken place. Murray v. Heckler, 722 F.2d 499, 500 28 (9th Cir. 1983). 1 When assessing whether there has been a medical improvement in a closed period 2 case such as this one, the ALJ “should compare the medical evidence used to determine 3 that the claimant was disabled with the medical evidence existing at the time of asserted 4 medical improvement.” Attmore v. Colvin, 827 F.3d 872, 874 (9th Cir. 2016). And the 5 ALJ must consider this evidence “in the broader context of [Plaintiff’s] impairment.” Id. 6 at 877. Isolated signs of improvement are not sufficient; the evidence must show sustained 7 improvement. Id. at 878. 8 The Court is unpersuaded by Plaintiff’s reliance on Listing 1.21 and his prior 9 argument that he was under “continuing surgical management well into 2023” in support 10 of his position that a “medical improvement could not have occurred as of November 15, 11 2022.” (Doc. 13 at 19.) As discussed above, the record does not support a finding that 12 Plaintiff was under continuing surgical management as encompassed by Listing 1.21. 13 Additionally, contrary to Plaintiff’s assertion (Doc. 13 at 19), substantial evidence 14 supports the ALJ’s determination that Plaintiff experienced a medical improvement on 15 November 15, 2022. In summarizing the Plaintiff’s status as of November 15, 2022, the 16 ALJ explains that he had recovered from the August 2022 surgery, “his gait was observed 17 to be independent and normal without the need for a brace,” he “had no pain or 3/10 pain,” 18 and “[e]xam showed no[] significant abnormalities.” (AR 25 (citing AR 1369–70 (record 19 of Plaintiff’s November 15, 2022 visit)).) Then, in finding medical improvement had 20 occurred as of November 15, 2022, the ALJ found: 21 By November 15, 2022, treating records no longer documented complaints of 22 right knee pain, instability, popping or significantly reduced range of motion 23 (Ex. 1F, 6F). As discussed below, the claimant briefly required assistive devices and the use of a knee brace after the second part of a staged ACL 24 revision surgery in February 2023. However, physical therapy progress notes 25 show that the claimant quickly recovered from that surgery with reduction of postoperative pain, progression to independent and normal gait without the 26 need for an assistive device, increased strength and stability such that he could 27 engage in robust activities. Physical exams by treating sources show no 28 1 significant abnormal clinical findings of the right knee, which correlate with imaging studies. 2
3 (AR 30.) . . . 4
5 Progress notes show that he was doing well after the first staged surgery in August 2022. By November 15, 2022, he had stopped physical therapy and 6 was stable. The record does not document significant clinical signs or 7 symptoms until he underwent the planned second right knee surgery in February 2023. Progress notes from his treating orthopedist and physical 8 therapists show no significant residuals and a very quick recovery. He 9 progressed to independence in his gait without the need for assistive device. He had no complications from surgery. Through physical therapy, he regained 10 stability, strength and mobility such that he was able to do robust activities 11 such as riding an E-bike (he testified that he rides over an hour at a time); doing yardwork; doing strength exercises 3–4 times daily; constantly going 12 up and down stairs. The record supports a finding that by November 15, 2022, 13 the claimant regained the ability to do [sic] stand or walk for 6 hours total in an 8-hour workday. 14
15 (AR 34.) 16 These findings are supported by substantial evidence in the record. The November 17 15, 2022 medical records reflect that Plaintiff was reporting no knee pain and was no longer 18 wearing a knee brace. (AR 639–40.) In comparison to the prior medical records,6 there 19 are no records of treatment or any other medical records reflecting that Plaintiff 20 experienced any pain or issues (such as popping or instability) with his right knee between 21 November 15, 2022 and the February 15, 2023 second-stage surgery. And Plaintiff self- 22 reported that he rode an e-bike “off-road” at least by the end of December 2022 or early 23 January 2023. (AR 1407 (reporting on February 10, 2023 that he crashed riding a mountain 24 bike “about 5-6 week(s) ago”); AR 56 (explaining at his hearing that “[i]t’s not a mountain 25 bike. It’s an e-bike” and that he “went off-road”).) 26 27 6 For example, on November 8, 2022, Plaintiff reported that his knee “gave way about 2 28 1 In support of his position that no medical improvement occurred, Plaintiff points 2 primarily to medical records evidencing pain or other complaints related to the second- 3 stage surgery. (Doc. 13 at 30.) He refers to records showing he was non-weight bearing 4 and using crutches following the surgery until March 7, 2023. (Id. (citing AR 1430, 1444– 5 45, 1451–52).) Plaintiff also points out that he continued to have swelling and effusion 6 with decreased mobility through April 2023. (Doc. 13 at 21 (citing AR 1457, 1460–63, 7 1468, 1474–76, 1482–83).) But this evidence does not undermine the ALJ’s finding that 8 he nevertheless had a quick recovery from this planned surgery: evidence of a “reduction 9 of postoperative pain, progression to independent and normal gait without the need for an 10 assistive device, increased strength and stability such that he could engage in robust 11 activities.” (AR 30.) On March 7, 2023, although he was still non-weight bearing, Plaintiff 12 reported his “knee feels better” and had no resting pain. (AR 1451.) On March 27, 2023, 13 Plaintiff reported “not much” pain in his right knee despite having twisted his knee during 14 a fall about 1.5 weeks prior. (AR 1457.) By April 18, 2023, Plaintiff had stopped using, 15 and no longer needed, a brace and denied pain. (AR 1461–63.) At an April 27, 2023 16 postoperative exam, Plaintiff had no instability and only mild pain with exercises. (AR 17 1468.) At physical therapy that same day, Plaintiff reported that “[h]e goes up and down 18 stairs 50x a day.” (AR 1474.) On May 5, 2023, Plaintiff again reported no pain and that 19 “his knee is doing a lot better.” (AR 1482.) By June 22, 2023, Plaintiff reported that he 20 was doing “monster walks,” daily physical exercises, and a “ton of yardwork.” (AR 1509.) 21 This amounts to substantial evidence supporting the ALJ’s decision. 22 Plaintiff also challenges the ALJ’s interpretation of medical records in determining 23 that he had returned back to full activity, including “scootering, jacuzzi and walking,” by 24 November 15, 2022. (Doc. 13 at 21–22 (citing AR 25, 31).) The November 15, 2022 25 record contains the following notation: 26 Prior Level of Function: no limitations with running and sports participation Patient Goal: Learn HEP, Return to prior level of activity without pain and 27 limitations 28 Back to full activity - scootering, jacuzzi, walking 1 (AR 639.) 2 According to Plaintiff, returning back to full activity was a listed “Patient Goal” that 3 had not yet been achieved by November 15, 2022. (Doc. 13 at 22.) Plaintiff correctly 4 points out that this same notation is present on the medical records from earlier visits. (AR 5 643 (November 1, 2022 visit), 646 (October 14, 2022 visit), 649 (October 6, 2022 visit), 6 652 (September 27, 2022 visit), 655 (August 30, 2022 visit).) And the ALJ twice concludes 7 that “[b]y November 15, 2022, . . . he was ‘back to full activity’ that included scootering, 8 jacuzzi and walking; . . . .” (AR 25, 31). But Plaintiff’s argument relies on the premise 9 that the ALJ interpreted this notation as a recording of progress achieved and not, as 10 Plaintiff urges, a goal of physical therapy. It is at least equally likely that the ALJ 11 interpreted this notation as a patient goal but nevertheless found that Plaintiff had achieved 12 it by November 15, 2022, given that he stopped attending physical therapy thereafter.7 On 13 the other hand, the “ALJ is the final arbiter with respect to resolving ambiguities in the 14 medical evidence.” Smartt, 53 F.4th at 494 (first quoting Tommasetti v. Astrue, 533 F.3d 15 1035, 1041–42 (9th Cir. 2008); and then citing Magallanes v. Bowen, 881 F.2d 747, 751 16 (9th Cir. 1989)); see also Ahearn v. Saul, 988 F.3d 1111, 1116–17 (9th Cir. 2021) (“When 17 the evidence can rationally be interpreted in more than one way, the court must uphold the 18 [ALJ’s] decision.”) (citation omitted). If as Plaintiff suggests the ALJ misinterpreted this 19 notation, whether the notation is a record of Plaintiff’s recovery progress or merely a stated 20 goal is an ambiguity, and the Court must uphold the ALJ’s interpretation on this point. For 21 this reason as well, the Court is not persuaded that the ALJ erred in finding a medical 22 improvement. 23 /// 24 25 26 7 The Court also notes that both times the ALJ stated this finding, he also listed additional 27 reasons for concluding that Plaintiff had sufficiently recovered from the August 2022 surgery such as that he had little to no pain and that his gait was observed to be independent 28 1 To reiterate, “[s]ubstantial evidence is such relevant evidence as a reasonable mind 2 might accept as adequate to support a conclusion, and must be more than a mere scintilla, 3 but may be less than a preponderance . . . . .” Kitchen v. Kijakazi, 82 F.4th 732, 738 (9th 4 Cir. 2023) (quoting Rounds v. Comm’r, 807 F.3d 996, 1002 (9th Cir. 2015)). “Overall, the 5 standard of review is highly deferential.” Id. Here, the medical records evidencing both 6 treatment of and complaints regarding Plaintiff’s right knee ACL injury end after 7 November 15, 2022.8 The relevant records begin again only with his preoperative 8 scheduling appointments in late January 2023 for the February 15, 2023 second-stage 9 surgery. (AR 1401–02.) While there is evidence Plaintiff was still experiencing swelling 10 and effusion from the second surgery as late as June 2023 (AR 1509), these same medical 11 records also demonstrate that Plaintiff quickly achieved an independent gait without using 12 a knee brace or other assistive device and had no issues with various activities such as 13 “monster walks” and “tons of yard work” (AR 1509). Contrary to Plaintiff’s contention, 14 this evidence does not suggest that the severity of Plaintiff’s impairment—right knee ACL 15 tear—had not substantially decreased back in November 2022. Rather, it supports the 16 ALJ’s determination that Plaintiff had a quick recovery from the planned second-stage 17 surgery. When viewing Plaintiff’s improvement as of November 15, 2022—minimal to no 18 pain, no instability, and return to activities—in the broader context of his ACL injury, the 19 Court finds no error in the ALJ’s determination that this amounted to a decrease in the 20 severity of Plaintiff’s impairment. And although Plaintiff experienced temporary 21 limitations while recovering from the second-stage planned surgery in February 2023, his 22 quick and unremarkable recovery supports the ALJ’s conclusion that the medical 23 improvement in November 2022 was not isolated but in fact sustained improvement. For 24 these reasons, the Court is not persuaded that the ALJ erred in determining that a medical 25 improvement occurred on November 15, 2022. 26 27 8 It is for this reason the Court is not persuaded by Plaintiff’s position that the November 28 1 C. ALJ’s Evaluation of Plaintiff’s Testimony 2 Finally, Plaintiff argues that the ALJ’s assessment of his testimony was not 3 supported by clear and convincing reasons. (Doc. 13 at 31–34.) “An ALJ engages in a 4 two-step analysis to determine whether a claimant’s testimony regarding subjective pain 5 or symptoms is credible.” Smith v. Kijakazi, 14 F.4th 1108, 1111 (9th Cir. 2021) (quoting 6 Garrison, 759 F.3d at 1014). “First, the ALJ must determine whether the claimant has 7 presented objective medical evidence of an underlying impairment which could reasonably 8 be expected to produce the pain or other symptoms alleged.” Id. (quoting Garrison, 759 9 F.3d at 1014). “At this step, the medical evidence need not corroborate the severity of the 10 alleged symptoms; the medical evidence need only establish that the impairment could 11 reasonably be expected to cause some degree of the alleged symptoms.” Id. (citing 12 Lingenfelter, 504 F.3d at 1036). 13 “If the claimant satisfies the first step of this analysis, and there is no evidence of 14 malingering, ‘the ALJ can reject the claimant’s testimony about the severity of [their] 15 symptoms only by offering specific, clear, and convincing reasons for doing so.’” Ahearn, 16 988 F.3d at 1116 (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). “When 17 objective medical evidence in the record is inconsistent with the claimant’s subjective 18 testimony, the ALJ may indeed weigh it as undercutting such testimony.” Smartt, 53 F.4th 19 at 498 (collecting cases). 20 Here, because the ALJ found Plaintiff satisfied the first step, the ALJ proceeded to 21 the second step. (AR 30 (explaining that Plaintiff’s “medically determinable impairments 22 could reasonably be expected to produce the alleged symptoms; however, the claimant’s 23 statements concerning the intensity, persistence and limiting effects of these symptoms are 24 not entirely consistent with the medical evidence and other evidence in the record for the 25 reasons explained in this decision.”).) In the September 2022 Function Report, Plaintiff 26 represented that he was “immobilized” and restricted from lifting, walking, stair-climbing, 27 squatting, sitting, bending, kneeling, standing, and reaching. (AR 234.) At the October 28 20, 2023 hearing, Plaintiff testified that he could only stand in place for “about 30 minutes” 1 and could only walk for 10 to 15 minutes. (AR 57, 65.) 2 The ALJ concluded that “[b]y November 15, 2022, the claimant’s allegations of right 3 knee pain and its associated limitations are somewhat supported by the record, but the 4 evidence does not substantiate restrictions more limited than the ability to do less than light 5 work as set forth in the residual functional capacity.” (AR 30.) The ALJ explained that: 6 By November 15, 2022, the claimant had recovered sufficiently from the 7 surgery in August 2022 that he was “back to full activity” that included 8 scootering, jacuzzi and walking; and his gait was observed to be independent with no gait deviations (Ex. 6F/245). In January 2023, he was riding his 9 mountain bike (Ex. 6F/463) and after crashing the bike, he had swelling in the 10 right foot (Ex. 6F/469)
11 12 (AR 31.)9 13 The ALJ then summarized Plaintiff’s recovery from the second surgery, noting that 14 the record indicates Plaintiff “did well after the surgery (e.g. Ex. 6F/509) and there were 15 no document[ed] significant residuals from this surgery.” (AR 31.) After summarizing 16 numerous records, the ALJ concluded that Plaintiff’s “course of treatment and alleged 17 symptoms explained above support the existence of some limitations as set forth in the 18 residual functional capacity, but do not correlate with greater restrictions as alleged by the 19
20 21 9 The Court reiterates that while Plaintiff challenges the ALJ’s interpretation of the record on the issue of whether he was “back to full activity,” as well as whether Plaintiff rode a 22 mountain bike or an e-bike “off-road,” the “ALJ is the final arbiter with respect to resolving 23 ambiguities in the medical evidence.” Smartt, 53 F.4th at 494. Moreover, “[a]n ALJ’s error [is] harmless where the ALJ provide[s] one or more invalid reasons for disbelieving 24 a claimant’s testimony, but also provide[s] valid reasons that were supported by the 25 record.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) superseded on other grounds by 20 C.F.R. § 404.1502(a); see also Glendenning v. Kijakazi, No. 22-35391, 2023 26 WL 3479564, at *1 (9th Cir. May 16, 2023) (“even assuming the ALJ’s reasoning 27 regarding the objective medical evidence was insufficiently specific, any error was harmless, because the ALJ relied on other valid reasons to discredit [the plaintiff’s] 28 1 claimant.” (AR 31.) 2 The ALJ also considered the objective findings in the record that undermined 3 Plaintiff’s claims of “disabling pain and weakness,” such as that “he does not exhibit any 4 significant atrophy, loss of strength, or difficulty moving that are indicative of severe and 5 disabling pain. He has a normal gait and does not require any assistive devices to 6 ambulate.” (AR 33.) The ALJ further noted that there was no evidence of weight loss, 7 sleep deprivation, or cognitive deficits due to pain or depression. (AR 33.) Moreover, the 8 ALJ noted that Plaintiff’s “allegations of significant limitations” are incompatible with his 9 description of his daily activities and the fact that since November 15, 2022, he “has been 10 able to engage in very robust activities such as riding an E-bike (he testified that he rides 11 over an hour at a time); doing yardwork; doing strength exercises 3-4 times daily; 12 constantly going up and down stairs.” (AR 33.) Finally, the ALJ pointed out that “[n]one 13 of the claimant’s physicians have opined that he is totally and permanently disabled from 14 any kind of work.” (AR 33.) 15 Although “[t]he ALJ must identify the testimony that was not credible and specify 16 ‘what evidence undermines the claimant’s complaints,’” Treichler v. Comm’r of Soc. Sec. 17 Admin., 775 F.3d 1090, 1103 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 18 722 (9th Cir. 1998)), ALJs are not required “to perform a line-by-line exegesis of the 19 claimant’s testimony [or] to draft dissertations when denying benefits,” Lambert v. Saul, 20 980 F.3d 1266, 1277 (9th Cir. 2020). “Ultimately, the ‘clear and convincing’ standard 21 requires an ALJ to show his work.” Smartt, 53 F.4th at 499. “The standard isn’t whether 22 [the] court is convinced, but instead whether the ALJ’s rationale is clear enough that it has 23 the power to convince.” Id. Here, the ALJ provided clear and convincing reasons to 24 discount Plaintiff’s statements regarding the intensity, persistence and limiting effects of 25 his symptoms: daily activities and engagement in robust activities; course of treatment and 26 recovery; and objective findings. This is sufficient and therefore the Court finds no error 27 in the ALJ’s decision to discount the Plaintiff’s testimony in this regard. 28 I IV. CONCLUSION 2 For the reasons set forth above, the Court AFFIRMS the ALJ’s decision. 4 || Dated: March 6, 2026 FR a ? L > ° HON. RUTH BERMUDEZ MONTENEGRO 6 UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21