Pace v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: January 24, 2023
• Docket: 4:21-cv-00186
• Status: Unknown

Opinion

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

9 Lawrence Pace, Jr., No. CV-21-00186-TUC-RCC (LAB)

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 On April 25, 2022, Magistrate Judge Leslie A. Bowman filed a Report and 16 Recommendation ("R&R") recommending that the Court affirm the decision of the 17 Commissioner of Social Security Administration ("Commissioner"). (Doc. 28.) The 18 Magistrate Judge informed the parties they had 14 days to file written objections to the 19 R&R and an additional 14 days to respond. (Id. at 17.) Plaintiff filed a timely objection on 20 May 9, 2022 (Doc. 19). The Commissioner did not file a response. 21 I. Standard of Review 22 The standard a district court uses when reviewing the recommendation of a 23 magistrate judge depends on whether or not a party objects; where there is no objection to 24 a magistrate judge's factual or legal determinations, the district court need not review the 25 decision "under a de novo or any other standard." Thomas v. Arn, 474 U.S. 140, 150 (1985). 26 However, when a party objects, the district court must "determine de novo any part of the 27 magistrate judge's disposition that has been properly objected to. The district judge may 28 accept, reject, or modify the recommended disposition; receive further evidence; or return 1 the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3); see also 28 2 U.S.C. § 636(b)(1). Moreover, "while the statute does not require the judge to review an 3 issue de novo if no objections are filed, it does not preclude further review by the district 4 judge, sua sponte or at the request of a party, under a de novo or any other standard." 5 Thomas, 474 U.S. at 154. 6 The Court must perform this de novo review of issues raised in an objection 7 regardless of whether the other party files a response. See Fed. R. Civ. P. 72(b)(2)–(3) 8 (requiring de novo review of objections, but not mandating a response); see also 28 U.S.C. 9 § 636(b)(1)(C). Although it may benefit a party to file a response, the response must be 10 filed within the time prescribed in Federal Rule of Civil Procedure 72(b)(2). Here, the 11 Commissioner chose not to respond to Plaintiff's objections. Accordingly, the Court has 12 performed a de novo review of this matter without the benefit of the Commissioner's 13 position. 14 There being no objection to the factual summary of the case, the Court adopts the Magistrate Judge's recitation of the facts, and only discusses the facts to the extent 15 necessary to address Plaintiff's objections. 16 II. Magistrate's R&R 17 The Magistrate Judge first concluded that the ALJ did not violate the duty to fully 18 and fairly develop the record because the ALJ's letter to Plaintiff's counsel—expressing his 19 desire to seek additional medical interrogatories—did not mean he believed the record was 20 ambiguous. (Doc. 28 at 8, 10.) The Magistrate Judge reasoned that the ALJ "believed that 21 these interrogatories would be useful, but he did not say that he thought that the medical 22 record was ambiguous and supplementation was necessary for proper evaluation of the 23 evidence." (Id. at 8.) As the Magistrate Judge explained, if the ALJ ultimately believed that 24 the additional interrogatories were necessary to properly render a decision, he would have 25 contacted Plaintiff's counsel again or obtained the records through some other avenue. (Id.) 26 Instead, the Magistrate Judge emphasized, the ALJ issued his decision without the 27 additional interrogatories indicating he ultimately believed the record was adequate. (Id. at 28 9.) Alternatively, the Magistrate Judge concluded that the ALJ met his duty to fully and 1 fairly develop the record when he left the record open for supplementation following the 2 hearing. (Id. at 10.) 3 Second, the Magistrate Judge found that the ALJ's conclusion regarding Plaintiff's 4 Residual Functional Capacity ("RFC") was supported by substantial evidence in the record. 5 (Id. at 12–13.) She noted that the finding may have been "overly optimistic" given recent 6 x-rays suggesting Plaintiff's degenerative joint disease was worsening and a prior ALJ 7 finding in 2010 that Plaintiff was suitable only for light work. (Id.) However, various other 8 facts in the record suggested that Plaintiff's physical conditions were perhaps not as severe, 9 providing substantial evidence for the conclusion that Plaintiff was physically-capable of 10 performing medium work. (Id.) For example, the Magistrate Judge pointed to the fact that 11 Plaintiff "was in his usual state of health with history of multiple stable medical problems" 12 in March 2012. (Id. (quoting Doc. 26-17 p. 39).) Plaintiff also retained his commercial 13 driver's license because he "wanted to leave his options open," indicating that he thought 14 he would be able to work as a truck driver in the future, a medium semi-skilled level position. (Id. (quoting Doc. 26-3 p. 28, 33).) The Magistrate Judge further highlighted the 15 ALJ's observation that Plaintiff had been working for decades while suffering knee and 16 back pain. (Id. at 12–13.) Both the Magistrate Judge and ALJ also observed that Plaintiff 17 had not received any injections in his knees to manage pain in the year prior to the hearing 18 although he had done so previously; they also noted that Plaintiff was no longer using 19 marijuana or other pain management medication. (Id.) Additionally, the Magistrate Judge 20 emphasized the medical opinion evidence supported the ALJ's RFC finding because Drs. 21 Schofield and Rabelo had determined that Plaintiff was capable of medium work. (Id. at 22 13.) And finally, the Magistrate Judge pointed to the fact that Plaintiff had, in 2014, planned 23 a hiking trip out of state despite his reported physical impairments, suggesting that his 24 symptoms may not have been as severe as Plaintiff stated. (Id.) 25 Lastly, the Magistrate Judge found that the ALJ provided clear and convincing 26 reasons for discounting Plaintiff's symptom testimony regarding disabling psychological 27 impairments. (Id. at 14–16.) As with his physical impairments, there was evidence that 28 Plaintiff's psychological symptoms were not as debilitating as he testified, based on his 1 commercial driver's license and "his usual state of health" at the time he transferred care in 2 2012. (Id. at 14.) Furthermore, the Magistrate Judge observed that Plaintiff declined 3 psychiatric medication when he sought treatment in 2013. (Id. at 15.) The physician 4 remarked that Plaintiff reported depressive symptoms that typically "lasted only for a few 5 hours, rarely a few days." (Id.) Between 2013 and 2014, Plaintiff also sought and completed 6 treatment programs for his psychological conditions and reports from those experiences 7 suggested some improvement. (Id.) The Magistrate Judge also referred to Plaintiff's 8 planned hiking trip and noted that, even though Plaintiff may not have ultimately taken the 9 trip, the fact that he planned it showed he "apparently believed that he was healthy enough 10 to take such a trip, which is evidence that supports the ALJ’s decision to discount 11 [Plaintiff's] subjective symptom testimony." (Id.) The Magistrate Judge then summarized 12 the medical opinions of experts who had reviewed Plaintiff's psychological conditions. (Id. 13 at 16.) "They opined that [Plaintiff] had only moderate limitation in his ability to interact 14 socially." (Id.) The Magistrate Judge found that the ALJ had considered the record as a whole, including information that Plaintiff was involuntarily removed from one of his 15 residential treatment programs due to verbal altercations with staff. (Id.) As the Magistrate 16 Judge concluded, "[t]he ALJ acknowledged that Pace suffers from severe mental 17 impairments that limit his ability to work," and acknowledged these limitations in the RFC 18 finding that Plaintiff, though not disabled, would need to limit certain social interaction in 19 his work. (Id. at 17.) 20 III. Plaintiff's Objections 21 Plaintiff objects to all three of the Magistrate Judge's findings. (Doc. 29.) First, 22 Plaintiff asserts the ALJ did not meet his duty to fully and fairly develop the record, which 23 "arose the moment the ALJ realized that he did not have enough information to resolve the 24 case on his own." (Id. at 1–2, 4.) According to Plaintiff, "the ALJ's letter to counsel 25 explaining that he intended to seek the services of three separate medical experts indicated 26 that the ALJ believed there to be ambiguity or insufficiency of the record . . . ." (Id. at 1.) 27 Plaintiff urges this Court not to assume "that the ALJ believed that the interrogatories 28 would be useful, but not necessary." (Id. at 2.) Rather, Plaintiff asks this Court to 1 presum[e] (based on the types of experts intended to be solicited) the ambiguity or incompleteness had something to 2 do with the complexity of Mr. Pace's claimed systemic 3 impairments; his uncertain psychological condition and how that interacts with his systemic conditions; and the onset and 4 continuing effects of his degenerative conditions. 5 (Id. at 3.) 6 Next, Plaintiff objects to the Magistrate Judge's finding that substantial evidence 7 supports the ALJ's decision that Plaintiff could perform medium work because his 8 degenerative conditions had improved. (Id. at 4.) Although Plaintiff concedes there is some 9 evidence that he could perform medium work, he maintains that the objective evidence "is 10 not at the level that a reasonable person would accept as sufficient to draw that conclusion." 11 (Id. at 6.) Plaintiff asserts that he retained his commercial driver's license but worked in a 12 partially accommodated position; his lack of pain killers cannot support a finding that he 13 is not disabled; the information that Plaintiff planned to go on a trip came from an 14 unreliable source; and "the State Agency physicians did not have access to most of this voluminous record." (Id. at 5.) With respect to the last point, Plaintiff suspects that the 15 experts only accessed the summary of the 2013 L-spine x-ray rather than the full x-ray 16 report. (Id.) 17 Finally, Plaintiff challenges the Magistrate Judge's finding that the ALJ provided 18 clear and convincing reasons to reject Plaintiff's symptom testimony regarding his mental 19 symptoms. (Id. at 6.) Plaintiff emphasizes that he alleged PTSD as his condition and not 20 depression, so the fact that he stated he only experienced depression that lasted a few hours 21 was insignificant. (Id.) Plaintiff again questions the credibility of the information that 22 Plaintiff was going on a hiking trip, stating, "it is a second-hand report of a statement made 23 during a followup call from a residential treatment center that Mr. Pace left on unfriendly 24 terms; [thus] the accuracy of the report is questionable." (Id.) Furthermore, even if Plaintiff 25 planned on traveling, "a one-time intent to remove oneself from society and its pressures 26 is not indicative of functionality in a workplace." (Id.) Finally, Plaintiff disagrees that his 27 time in residential treatment could represent notable gains given that he left on bad terms. 28 (Id. at 6–7.) 1 IV. Discussion 2 A claimant is "disabled" for the purpose of receiving benefits if he is unable to 3 engage in any substantial gainful activity due to an impairment which has lasted, or is 4 expected to last, for a continuous period of at least twelve months. 42 U.S.C. § 5 423(d)(1)(A); 20 C.F.R. § 404.1505(a). "The claimant bears the burden of establishing a 6 prima facie case of disability." Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. 7 denied, 517 U.S. 1122 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996). 8 The ALJ follows a five-step sequential process to determine whether the claimant 9 is disabled. 20 C.F.R. §§ 404.1520, 416.920; see also Heckler v. Campbell, 461 U.S. 458, 10 460–62 (1983). The claimant bears the burden of establishing (1) he is not working; (2) he 11 has a severe physical or mental impairment; (3) his impairment meets or equals the severity 12 of a listed impairment; and (4) his residual functional capacity precludes him from 13 performing his past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(i)–(iv). 14 At step five, the Commissioner bears the burden of establishing that the claimant can "considering his age, education, and work experience, engage in any other kind of 15 substantial gainful work which exists in the national economy, regardless of whether such 16 work exists in the immediate area in which he lives, or whether a specific job vacancy 17 exists for him or whether he would be hired if he applied for work." 42 U.S.C. § 18 423(d)(2)(A); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). "There are two ways 19 for the Commissioner to meet the burden of showing that there is other work in 'significant 20 numbers' in the national economy that claimant can do: (1) by the testimony of a vocational 21 expert, or (2) by reference to the Medical–Vocational Guidelines at 20 C.F.R. pt. 404, 22 subpt. P, app. 2." Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). 23 Here, the ALJ found that Plaintiff had not engaged in substantial gainful activity, 24 and he suffered from "diabetes mellitus, obesity, obstructive sleep apnea, degenerative 25 arthritis of the spine, degenerative joint disease of the knees, hypertension, anxiety, [and] 26 posttraumatic stress disorder." (Doc. 26-3 at 23.) At step three, the ALJ determined that 27 Plaintiff "did not have an impairment or combination of impairments that met or medically 28 equaled the severity of one of the listed impairments in 20 CFR, Part 404, Subpart P, 1 Appendix 1 . . . ." (Id. at 25.) He then found that Plaintiff had the RFC to perform medium 2 work with minor postural and environmental limitations, including adjustments for his 3 psychological conditions like limited contact with the public and co-workers. (Id. at 27.) 4 At step four, the ALJ assumed that Plaintiff could not perform any of his past work, but, at 5 step five, he determined that Plaintiff was not disabled considering his "age, education, 6 work experience, and residual functional capacity" in application of the Medical- 7 Vocational Rule 203.29. (Id. at 33–34.) 8 Upon de novo review, the Court agrees with the Magistrate Judge's first conclusion 9 that the ALJ did not violate his duty to fully and fairly develop the record. "The ALJ in a 10 social security case has an independent duty to fully and fairly develop the record and to 11 assure that the claimant's interests are considered." Tonapetyan v. Halter, 242 F.3d 1144, 12 1150 (9th Cir. 2001). This duty is triggered when there is "[a]mbiguous evidence" or when 13 the ALJ concludes "that the record is inadequate to allow for proper evaluation of the 14 evidence." Id. Once triggered, the duty may be discharged by "subpoenaing the claimant's physicians, submitting questions to the claimant's physicians, continuing the hearing, or 15 keeping the record open after the hearing to allow supplementation of the record." Id. 16 Here, however, the ALJ made no finding that the record was ambiguous or that it 17 required supplementation before he could properly decide the case. In other words, as the 18 Magistrate Judge concluded, the ALJ's letter to counsel alone did not evidence a subjective 19 finding that the record was inadequate. Furthermore, there is also no evidence that the 20 record was objectively incomplete, nor, as the Magistrate Judge highlighted, does Plaintiff 21 point to any objective ambiguity. The Court further agrees with the Magistrate Judge's 22 finding that even if the record were ambiguous, the ALJ discharged his duty by agreeing 23 to keep the record open to allow supplementation. See Tonapetyan, 242 F.3d at 1150. 24 Second, the Court agrees with the Magistrate Judge's conclusion that substantial 25 evidence supports the ALJ's RFC finding despite some evidence that Plaintiff's physical 26 conditions had worsened. The Court must affirm the ALJ's decision if it is both supported 27 by substantial evidence and free of legal error. Lambert v. Saul, 980 F.3d 1266, 1270 (9th 28 Cir. 2020). Substantial evidence means "such relevant evidence as a reasonable mind might 1 accept as adequate to support a conclusion." Biestek v. Berryhill, 139 S. Ct. 1148, 1154 2 (2019) (quoting Consol. Edison, Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). Although 3 Plaintiff argues that the evidence does not support the rational conclusion that Plaintiff 4 could perform medium work, the Court disagrees. As the Magistrate Judge made clear, the 5 question is not whether the evidence can support a different conclusion; rather, on the 6 standard of review required of this Court, the question is whether there is “more than a 7 mere scintilla but less than a preponderance" to support the ALJ's findings. Orn v. Astrue, 8 495 F.3d 625, 630 (9th Cir. 2007). The facts cited by the Magistrate Judge regarding 9 possible improvement of Plaintiff's physical conditions provide the substantial evidence to 10 support the ALJ's RFC conclusion, even if, as the Magistrate Judge noted, some facts could 11 suggest otherwise. With regard to Plaintiff's argument regarding the records reviewed by 12 the medical experts, the Court reviewed the opening brief, response brief, and reply brief 13 and agrees with the Magistrate Judge's observation that "[t]he record available to the state 14 agency physicians included x-ray studies indicating degenerative disc disease at L1-L4 and facet arthropathy at L5-S1, which indicates that they had access to the May 2013 x-ray 15 studies cited by [Plaintiff]." (Doc. 28 at 13 n.4.) In other words, the examiners had access 16 to information regarding Plaintiff's degenerative disc disease and facet arthropathy, which 17 appeared in the 2013 x-rays. The examiners considered this information and still 18 determined that Plaintiff had the physical capacity to perform medium work. The ALJ's 19 finding was, therefore, not in error. 20 Finally, the Court agrees with the Magistrate Judge that the ALJ provided clear and 21 convincing reasons to discount Plaintiff's testimony regarding his psychological conditions 22 and substantial evidence to support the finding that Plaintiff was not disabled as a result of 23 these conditions. While the ALJ is not required to accept the claimant's symptom 24 testimony, Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009), absent 25 evidence of malingering, the ALJ must provide clear and convincing reasons for rejecting 26 the claimant's symptom testimony, Garrison v. Colvin, 759 F.3d 995, 1014–15 (9th Cir. 27 2014). "The ALJ may consider many factors in weighing a claimant's credibility, including 28 (1) ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, 1 prior inconsistent statements concerning the symptoms, and other testimony by the 2 claimant that appears less than candid; (2) unexplained or inadequately explained failure 3 to seek treatment or to follow a prescribed course of treatment; and (3) the claimant's daily 4 activities." Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). 5 The ALJ did just that. The ALJ observed Plaintiff's "usual state of health" and the 6 fact that he retained a commercial driver's license that would enable him to perform 7 otherwise medium level work. As the Magistrate Judge noted, the ALJ also highlighted the 8 fact that Plaintiff had declined medication for his mental health conditions. Although 9 Plaintiff argues that his statements regarding bouts of depression are irrelevant because he 10 alleged PTSD and not depression, Plaintiff does not contest the fact that he attended more 11 than one treatment program in 2013 and 2014. Although Plaintiff experienced conflict in 12 these programs and was ultimately removed from one, other reports reviewed by the ALJ 13 and addressed by the Magistrate Judge indicate that he did make progress in treating his 14 conditions despite these issues. With regard to Plaintiff's hiking trip, the Court agrees with the Magistrate Judge that this is some evidence relevant to discounting Plaintiff's symptom 15 testimony and it was not error for the ALJ to cite this as clear and convincing evidence 16 even if Plaintiff never went on the trip. The Court agrees that the plan to take a hiking trip 17 indicates Plaintiff "apparently believed that he was healthy enough to take such a trip, 18 which is evidence that supports the ALJ’s decision to discount [Plaintiff's] subjective 19 symptom testimony." (Doc. 28 at 15.) Lastly, the Court agrees with the Magistrate Judge 20 that the ALJ did not err by considering the expert medical opinions that concluded Plaintiff 21 "had only moderate limitation in his ability to interact socially" in conjunction with the fact 22 that Plaintiff was involuntarily removed from one of his treatment programs. (Id. at 16.) 23 As the Magistrate Judge concluded, the ALJ appears to have considered the record as a 24 whole, recommending additional limitations on Plaintiff's capacity specifically related to 25 his social interaction. This does not indicate that the ALJ erred, but, on the contrary, that 26 the ALJ recognized Plaintiff's potential limitations but nonetheless found that Plaintiff was 27 not disabled as a result of them. 28 1 In summary, the Court has reviewed the record and the briefs as well as the 2|| Magistrate Judge's R&R and Plaintiff's objections. The Court finds the Magistrate Judge's 3|| conclusions well-reasoned and agrees with her findings. Accordingly, 4 IT IS ORDERED: 5 1. The Report and Recommendation is ADOPTED. (Doc. 28.) 6 2. The decision of the Commissioner denying Plaintiff's claim for benefits is 7 AFFIRMED. The Clerk of Court shall close this case. 8 Dated this 24th day of January, 2023. 9 10 f 7 Dp 12 f Honorable Raner ©. Collins 13 merior United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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