1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RENE Z. M., ) No. CV 20-694 AGR ) 12 Plaintiff, ) ) 13 v. ) MEMORANDUM OPINION AND ORDER ) 14 ANDREW SAUL, ) Commissioner of Social Security, ) 15 ) Defendant. ) 16 ) 17 Plaintiff1 filed this action on January 23, 2020. The parties filed a Joint Stipulation 18 that addressed the disputed issues. The court has taken the matter under submission 19 without oral argument.2 20 Having reviewed the entire file, the court reverses the decision of the 21 Commissioner and remands for reconsideration as set forth below. 22 23 24 25 1 Plaintiff’s name has been partially redacted in compliance with Fed. R. Civ. P. 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and 26 Case Management of the Judicial Conference of the United States. 27 2 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the 28 1 I. 2 PROCEDURAL BACKGROUND 3 Plaintiff filed an application for disability insurance benefits on February 9, 2016, 4 and alleged an onset date of February 6, 2015. Administrative Record (“AR”) 24. The 5 application was denied initially. AR 24, 87. Plaintiff requested a hearing before an 6 Administrative Law Judge (“ALJ”). On April 12, 2018, the ALJ conducted a hearing at 7 which Plaintiff and a vocational expert testified. AR 45-75. Plaintiff amended the onset 8 date to November 6, 2016. AR 24. On August 8, 2018, the ALJ issued a decision 9 denying benefits. AR 21-33. On November 25, 2019, the Appeals Council denied 10 review. AR 1-6. This action followed. 11 II. 12 STANDARD OF REVIEW 13 Pursuant to 42 U.S.C. § 405(g), this court has authority to review the 14 Commissioner’s decision to deny benefits. The decision will be disturbed only if it is not 15 supported by substantial evidence, or if it is based upon the application of improper 16 legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam); 17 Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 18 “Substantial evidence” means “more than a mere scintilla but less than a 19 preponderance – it is such relevant evidence that a reasonable mind might accept as 20 adequate to support the conclusion.” Moncada, 60 F.3d at 523. In determining whether 21 substantial evidence exists to support the Commissioner’s decision, the court examines 22 the administrative record as a whole, considering adverse as well as supporting 23 evidence. Drouin, 966 F.2d at 1257. When the evidence is susceptible to more than 24 one rational interpretation, the court must defer to the Commissioner’s decision. 25 Moncada, 60 F.3d at 523. 26 27 28 1 III. 2 DISCUSSION 3 A. Disability 4 A person qualifies as disabled, and thereby eligible for such benefits, “only if his 5 physical or mental impairment or impairments are of such severity that he is not only 6 unable to do his previous work but cannot, considering his age, education, and work 7 experience, engage in any other kind of substantial gainful work which exists in the 8 national economy.” Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003) (citation and 9 quotation marks omitted). 10 B. The ALJ’s Findings 11 The ALJ found that Plaintiff met the insured status requirements through 12 December 31, 2020. AR 26. Following the five-step sequential analysis applicable to 13 disability determinations, Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006),3 14 the ALJ found that Plaintiff had the severe impairments of degenerative disc disease of 15 the lumbar spine; bilateral carpal tunnel syndrome; and history of bilateral rotator cuff 16 tears status post bilateral arthroscopic surgeries. AR 26. 17 The ALJ found that Plaintiff had the residual functional capacity to perform light 18 work except that he could frequently perform all postural activities and frequently reach 19 overhead with the bilateral upper extremities. AR 27. The ALJ concluded that Plaintiff 20 was capable of performing his past relevant work as screen printer. AR 32. 21 C. Residual Functional Capacity 22 The residual functional capacity (“RFC”) assessment measures the claimant’s 23 capacity to engage in basic work activities. Bowen v. New York, 476 U.S. 467, 471 24 25 3 The five-step sequential analysis examines whether the claimant engaged in 26 substantial gainful activity, whether the claimant’s impairment is severe, whether the impairment meets or equals a listed impairment, whether the claimant is able to do his 27 or her past relevant work, and whether the claimant is able to do any other work. 28 Lounsburry, 468 F.3d at 1114. 1 (1986). The RFC is a determination of “‘the most [the claimant] can still do despite [the 2 claimant’s] limitations.’” Treichler v. Comm’r, 775 F.3d 1090, 1097 (9th Cir. 2014) 3 (citation omitted). The RFC assessment must be supported by substantial evidence. 4 Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). 5 As discussed above, the ALJ found that Plaintiff could perform light work except 6 that he could frequently perform all postural activities and frequently reach overhead 7 with the bilateral upper extremities. AR 27. 8 The ALJ gave weight to the medical source opinions in the record. The ALJ gave 9 substantial weight to the opinion of the state agency physician, who issued an opinion 10 on July 1, 2016 based on a review of medical records through June 2016. AR 31, 76- 11 86. The state agency physician opined that Plaintiff was capable of light work except 12 that he could frequently reach overhead with the bilateral upper extremities, and opined 13 that Plaintiff did not have any manipulative limitations. AR 80-84. The ALJ gave partial 14 weight to the opinion of Dr. Wallack, who performed a consultative internal medicine 15 examination on June 9, 2016. AR 31, 694-99. On physical examination, Plaintiff had 16 no tenderness to palpation in the midline or paraspinal areas of the back, no muscle 17 spasm and normal range of motion. AR 696. Plaintiff had normal range of motion of 18 the bilateral shoulders, elbows, and wrists. Plaintiff had slightly reduced motor strength 19 (4.5/5) and some reduced grip strength in the right hand. He had a normal gait. AR 20 697-98. Dr. Wallack opined that Plaintiff had a temporary restriction in lifting/carrying 21 10 pounds with his right arm due to recent surgery, but no permanent restriction. Dr. 22 Wallack did not assess any postural or manipulative limitations. AR 698. The ALJ gave 23 partial weight to Dr. Kim’s report on August 21, 2015 because it predated the amended 24 onset date by more than one year. AR 31-32, 709-29. Dr. Kim recommended that 25 Plaintiff avoid lifting more than 40 pounds, limit bending or stooping to 30% of the day, 26 and avoid repetitive forceful gripping or grasping. AR 721-22. An ALJ may reasonably 27 rely on examining physicians’ opinions, which constitute substantial evidence when as 28 here they are based on independent clinical findings. Orn v. Astrue,
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RENE Z. M., ) No. CV 20-694 AGR ) 12 Plaintiff, ) ) 13 v. ) MEMORANDUM OPINION AND ORDER ) 14 ANDREW SAUL, ) Commissioner of Social Security, ) 15 ) Defendant. ) 16 ) 17 Plaintiff1 filed this action on January 23, 2020. The parties filed a Joint Stipulation 18 that addressed the disputed issues. The court has taken the matter under submission 19 without oral argument.2 20 Having reviewed the entire file, the court reverses the decision of the 21 Commissioner and remands for reconsideration as set forth below. 22 23 24 25 1 Plaintiff’s name has been partially redacted in compliance with Fed. R. Civ. P. 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and 26 Case Management of the Judicial Conference of the United States. 27 2 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the 28 1 I. 2 PROCEDURAL BACKGROUND 3 Plaintiff filed an application for disability insurance benefits on February 9, 2016, 4 and alleged an onset date of February 6, 2015. Administrative Record (“AR”) 24. The 5 application was denied initially. AR 24, 87. Plaintiff requested a hearing before an 6 Administrative Law Judge (“ALJ”). On April 12, 2018, the ALJ conducted a hearing at 7 which Plaintiff and a vocational expert testified. AR 45-75. Plaintiff amended the onset 8 date to November 6, 2016. AR 24. On August 8, 2018, the ALJ issued a decision 9 denying benefits. AR 21-33. On November 25, 2019, the Appeals Council denied 10 review. AR 1-6. This action followed. 11 II. 12 STANDARD OF REVIEW 13 Pursuant to 42 U.S.C. § 405(g), this court has authority to review the 14 Commissioner’s decision to deny benefits. The decision will be disturbed only if it is not 15 supported by substantial evidence, or if it is based upon the application of improper 16 legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam); 17 Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 18 “Substantial evidence” means “more than a mere scintilla but less than a 19 preponderance – it is such relevant evidence that a reasonable mind might accept as 20 adequate to support the conclusion.” Moncada, 60 F.3d at 523. In determining whether 21 substantial evidence exists to support the Commissioner’s decision, the court examines 22 the administrative record as a whole, considering adverse as well as supporting 23 evidence. Drouin, 966 F.2d at 1257. When the evidence is susceptible to more than 24 one rational interpretation, the court must defer to the Commissioner’s decision. 25 Moncada, 60 F.3d at 523. 26 27 28 1 III. 2 DISCUSSION 3 A. Disability 4 A person qualifies as disabled, and thereby eligible for such benefits, “only if his 5 physical or mental impairment or impairments are of such severity that he is not only 6 unable to do his previous work but cannot, considering his age, education, and work 7 experience, engage in any other kind of substantial gainful work which exists in the 8 national economy.” Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003) (citation and 9 quotation marks omitted). 10 B. The ALJ’s Findings 11 The ALJ found that Plaintiff met the insured status requirements through 12 December 31, 2020. AR 26. Following the five-step sequential analysis applicable to 13 disability determinations, Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006),3 14 the ALJ found that Plaintiff had the severe impairments of degenerative disc disease of 15 the lumbar spine; bilateral carpal tunnel syndrome; and history of bilateral rotator cuff 16 tears status post bilateral arthroscopic surgeries. AR 26. 17 The ALJ found that Plaintiff had the residual functional capacity to perform light 18 work except that he could frequently perform all postural activities and frequently reach 19 overhead with the bilateral upper extremities. AR 27. The ALJ concluded that Plaintiff 20 was capable of performing his past relevant work as screen printer. AR 32. 21 C. Residual Functional Capacity 22 The residual functional capacity (“RFC”) assessment measures the claimant’s 23 capacity to engage in basic work activities. Bowen v. New York, 476 U.S. 467, 471 24 25 3 The five-step sequential analysis examines whether the claimant engaged in 26 substantial gainful activity, whether the claimant’s impairment is severe, whether the impairment meets or equals a listed impairment, whether the claimant is able to do his 27 or her past relevant work, and whether the claimant is able to do any other work. 28 Lounsburry, 468 F.3d at 1114. 1 (1986). The RFC is a determination of “‘the most [the claimant] can still do despite [the 2 claimant’s] limitations.’” Treichler v. Comm’r, 775 F.3d 1090, 1097 (9th Cir. 2014) 3 (citation omitted). The RFC assessment must be supported by substantial evidence. 4 Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). 5 As discussed above, the ALJ found that Plaintiff could perform light work except 6 that he could frequently perform all postural activities and frequently reach overhead 7 with the bilateral upper extremities. AR 27. 8 The ALJ gave weight to the medical source opinions in the record. The ALJ gave 9 substantial weight to the opinion of the state agency physician, who issued an opinion 10 on July 1, 2016 based on a review of medical records through June 2016. AR 31, 76- 11 86. The state agency physician opined that Plaintiff was capable of light work except 12 that he could frequently reach overhead with the bilateral upper extremities, and opined 13 that Plaintiff did not have any manipulative limitations. AR 80-84. The ALJ gave partial 14 weight to the opinion of Dr. Wallack, who performed a consultative internal medicine 15 examination on June 9, 2016. AR 31, 694-99. On physical examination, Plaintiff had 16 no tenderness to palpation in the midline or paraspinal areas of the back, no muscle 17 spasm and normal range of motion. AR 696. Plaintiff had normal range of motion of 18 the bilateral shoulders, elbows, and wrists. Plaintiff had slightly reduced motor strength 19 (4.5/5) and some reduced grip strength in the right hand. He had a normal gait. AR 20 697-98. Dr. Wallack opined that Plaintiff had a temporary restriction in lifting/carrying 21 10 pounds with his right arm due to recent surgery, but no permanent restriction. Dr. 22 Wallack did not assess any postural or manipulative limitations. AR 698. The ALJ gave 23 partial weight to Dr. Kim’s report on August 21, 2015 because it predated the amended 24 onset date by more than one year. AR 31-32, 709-29. Dr. Kim recommended that 25 Plaintiff avoid lifting more than 40 pounds, limit bending or stooping to 30% of the day, 26 and avoid repetitive forceful gripping or grasping. AR 721-22. An ALJ may reasonably 27 rely on examining physicians’ opinions, which constitute substantial evidence when as 28 here they are based on independent clinical findings. Orn v. Astrue, 495 F.3d 625, 632 1 (9th Cir. 2007). The non-examining physician’s opinion may serve as substantial 2 evidence when it is supported by other evidence in the record and is consistent with it. 3 Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 4 Plaintiff argues that the ALJ erred in not relying on medical records that post-date 5 the medical source opinions. 6 The ALJ’s frequent overhead reaching limitation is supported by substantial 7 evidence. AR 28, 30-31. Prior to the date of the medical source opinions, Plaintiff had 8 a repair of the right shoulder rotator cuff tear and right biceps tendon degenerative tear 9 on April 7, 2016. AR 859-60. He commenced a 12-week rehabilitation program. AR 10 935. By August 2016, Plaintiff had 90% function and intermittent pain with overhead 11 lifting and abduction strengthening. AR 1066. Plaintiff was to avoid excessive 12 overhead lifting or heavy lifting to protect the repair. AR 1067, 1098. Subsequently, on 13 January 26, 2017, Plaintiff had a repair of the left shoulder rotator cuff tear. AR 1185. 14 On February 18, 2017, Plaintiff commenced a 24-week program of physical therapy. 15 AR 1275. On March 22, 2017, Plaintiff reported that he was doing well, in no pain, and 16 exercising at the gym. AR 1308. It appears Plaintiff was discharged from physical 17 therapy on May 1, 2017 after failing to show up. AR 1294. Moreover, overhead 18 reaching limitation would not affect the ability to perform the work of screen printer. See 19 Pedroza v. Colvin, 2015 U.S. Dist. LEXIS 85708, *16-*17 (W.D. Tex. June 30, 2015) 20 (noting occasional overhead reaching limitation would not eliminate screen printer job). 21 The ALJ’s RFC assessment did not include manipulative limitations. The screen 22 printer job requires frequent handling and occasional fingering. The term “handling” 23 means the ability to seize, hold, grasp, or turn an object. Sylvia L.P. v. Saul, 2019 U.S. 24 Dist. LEXIS 149874, *5 (C.D. Cal. Sept. 3, 2019). 25 Plaintiff has not shown error with respect to the absence of manipulative 26 limitations. On June 17, 2017, a nerve conduction study indicated carpal tunnel 27 syndrome, mild to moderate, of the left wrist. There was no evidence of polyneuropathy 28 or other neuropathy. AR 1366-67. It was recommended Plaintiff wear wrist splints, rest 1 hands/ wrists when possible, and modify hand activity and work environment. AR 1367. 2 Plaintiff denied right wrist pain. AR 1369. On January 29, 2018, Tinel’s sign was 3 positive for the wrist but not the fingers. A wrist splint was recommended for use at 4 night. The physician discussed surgical release and Plaintiff elected to wait. AR 1444. 5 A nerve conduction study on February 15, 2018 indicated that Plaintiff complained of 6 numbness and tingling in the right hand for four months. AR 1450; see AR 1359. 7 Plaintiff did not have hand grip weakness and had motor strength of 5/5. AR 1451. 8 According to the study, Plaintiff had right mild-to-moderate carpal tunnel syndrome, 9 primarily myelinating in nature. It was recommended that Plaintiff wear wrist splints at 10 night, rest his hand/wrist when possible, and modify his hand activity and work 11 environment. AR 1453. On January 25, 2018, Plaintiff denied dropping things, hand 12 numbness or difficulty with fine hand motor skills such as handling change or small 13 objects. AR 1430-31. 14 With respect to the ALJ’s frequent postural limitation, the screen printer job does 15 not require postural activities with the exception of occasional crouching. Therefore, 16 any error would be harmless unless Plaintiff is incapable of performing occasional 17 crouching. DOT 979.684-030. The term “occasionally” means up to one-third of an 18 eight-hour workday. Social Security Ruling (“SSR”) 83-10, 1983 SSR LEXIS 30, *13- 19 *14 (Jan. 1, 1983). The term crouching involves “bending the body downward and 20 forward by bending both the legs and spine.” SSR 83-14, 1983 SSR LEXIS 33, *6 21 (1983). 22 Although the issue is a close one, the matter will be remanded for reconsideration 23 of Plaintiff’s ability to crouch during the period beginning January 1, 2018. On April 4, 24 2017, Plaintiff reported low back pain of 3/10 aggravated by bending and leaning 25 forward. Plaintiff had reduced range of motion and muscle strength, and a positive 26 Thomas sign. AR 1325-26. Imaging indicated that vertebral bodies were normal in 27 height and alignment, but there was space narrowing at L2-L3, L4-L5, and L5-S1. AR 28 1332. Plaintiff was prescribed over-the-counter acetaminophen, back strengthening 1 and core strengthening. AR 1344. On August 10, 2017, Plaintiff reported only off and 2 on back pain. AR 1375. Plaintiff was advised to take naproxen. AR 1377. 3 On January 8, 2018, however, Plaintiff presented with low back pain, moving 4 down his right leg, that had worsened in the last few days. AR 1411. Plaintiff had 5 tenderness in the lumbar and iliac crest, right. Plaintiff was advised to use stretching 6 exercises and NSAIDS. AR 1412-13. On January 10, 2018, Plaintiff returned, sought 7 disability, and advised that naproxen gave him gastrointestinal upset. Plaintiff reported 8 right mid lower leg paresthesias and pain. AR 1421. Plaintiff had normal range of 9 motion. He was prescribed prednisone for one week. AR 1422. On January 25, 2018, 10 Plaintiff complained of localized low back pain with alternating referred pain to the right 11 leg that was aggravated by prolonged sitting and walking. Plaintiff denied numbness or 12 weakness in the leg. AR 1430-31. On examination, Plaintiff had full lumbar flexion, 13 extension, rotation and side bend, motor strength of 5/5, and tenderness to palpation in 14 the low back. AR 1433. He had pain with extension, flexion and clear rotation with 15 seated hip flexion. The physician found no clear neurologic deficit suggestive of a 16 pinched nerve and suspected lumbar rotation syndrome. Plaintiff was told to take one 17 Aleve every 12 hours for pain. AR 1434. Thus, as of January 1, 2018, Plaintiff’s most 18 recent medical records indicate that his low back pain had materially worsened with 19 associated medical signs that call into question whether Plaintiff is capable of the 20 occasional crouching required of the screen printer job. 21 D. Plaintiff’s Allegations 22 In assessing a claimant’s subjective allegations, the Commissioner conducts a 23 two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, the ALJ 24 determines whether the claimant presented objective medical evidence of an 25 impairment that could reasonably be expected to produce the symptoms alleged. Id. 26 Here, the ALJ found that Plaintiff’s medically determinable impairments could 27 reasonably be expected to cause the alleged symptoms. AR 32. Second, the ALJ 28 evaluates the intensity and persistence of the claimant’s symptoms and determines the extent to which those symptoms limit the claimant’s ability to perform work-related 2| activities. Social Security Ruling (“SSR”) 16-3p. Absent malingering, the ALJ must give 3] specific, clear and convincing reasons for discounting the claimant’s subjective allegations. Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020). To do so, the ALJ must identify the claimant’s testimony that is found not to be credible and explain what evidence undermines that testimony. On the other hand, “[oJur cases do not require 7|| ALJs to perform a line-by-line exegesis of the claimant’s testimony, nor do they require 8| ALJs to draft dissertations when denying benefits.” /d. 9 The ALJ discounted Plaintiff's testimony for several reasons including lack of 10 || support in the medical record. AR 32. Because the matter is being remanded for reconsideration of the residual functional capacity, the Commissioner is free to reconsider Plaintiff's subjective allegations in that context. 13 IV. 14 ORDER 15 IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and 16 || remanded for reconsideration of Plaintiff's residual functional capacity assessment as of January 1, 2018, specifically whether Plaintiff is capable of occasional crouching 18|| required for his past relevant work of screen printer. 19 20 Wbiar A Koaenberg, DATED: March 24, 2021 21 ~_ ALICIAG. ROSENBERG ~ 39 United States Magistrate Judge
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