Roland Peachie Andrew M. Saul

• Court: District Court, C.D. California
• Decided: May 20, 2020
• Docket: 5:19-cv-01216
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 ROLAND P.,1 ) Case No. EDCV 19-1216-JPR 11 ) Plaintiff, ) 12 ) MEMORANDUM DECISION AND ORDER v. ) AFFIRMING COMMISSIONER 13 ) ANDREW M. SAUL, ) 14 Commissioner of Social ) Security, ) 15 ) Defendant. ) 16 ) 17 18 I. PROCEEDINGS 19 Plaintiff seeks review of the Commissioner’s final decision 20 denying his application for Social Security supplemental security 21 income benefits (“SSI”). The parties consented to the 22 jurisdiction of the undersigned under 28 U.S.C. § 636(c). The 23 matter is before the Court on the parties’ Joint Submission, 24 1 Plaintiff’s name is partially redacted in line with 25 Federal Rule of Civil Procedure 5.2(c)(2)(B) and the 26 recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. 27 Although his first name sometimes appears in the record as “Ronald,” it is in fact Roland. (See, e.g., AR 194 (Plaintiff or 28 his wife writing his name as “Roland”).) 1 1 filed February 24, 2020, which the Court has taken under 2 submission without oral argument. For the reasons stated below, 3 the Commissioner’s decision is affirmed. 4 II. BACKGROUND 5 Plaintiff was born in 1968. (Administrative Record (“AR”) 6 173.) He completed sixth grade (AR 47), having attended special- 7 education classes since first grade (AR 184). He worked “odd 8 jobs” from 1997 to 2008. (AR 175, 191.) On June 18, 2015, he 9 applied for SSI, alleging disability since January 1, 2008, 10 because of chronic obstructive pulmonary disease, brain tumor, 11 asthma, seizures, and “rage and depression.” (AR 61, 183-84.) 12 After his application and reconsideration of it were denied (AR 13 79-80, 106-11), he requested a hearing before an Administrative 14 Law Judge (AR 113). A hearing was held on May 17, 2018, at which 15 Plaintiff, represented by counsel, testified, as did a vocational 16 expert. (AR 42-60.) In a written decision issued August 21, 17 2018, the ALJ found him not disabled. (AR 26-36.) On May 17, 18 2019, the Appeals Council denied his request for review. (AR 1- 19 3.) This action followed. 20 III. STANDARD OF REVIEW 21 Under 42 U.S.C. § 405(g), a district court may review the 22 Commissioner’s decision to deny benefits. The ALJ’s findings and 23 decision should be upheld if they are free of legal error and 24 supported by substantial evidence based on the record as a whole. 25 See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 26 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence 27 means such evidence as a reasonable person might accept as 28 adequate to support a conclusion. Richardson, 402 U.S. at 401; 2 1 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It 2 is “more than a mere scintilla but less than a preponderance.” 3 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 4 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). “[W]hatever the 5 meaning of ‘substantial’ in other contexts, the threshold for 6 such evidentiary sufficiency is not high.” Biestek v. Berryhill, 7 139 S. Ct. 1148, 1154 (2019). To determine whether substantial 8 evidence supports a finding, the reviewing court “must review the 9 administrative record as a whole, weighing both the evidence that 10 supports and the evidence that detracts from the Commissioner’s 11 conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 12 1998). “If the evidence can reasonably support either affirming 13 or reversing,” the reviewing court “may not substitute its 14 judgment” for the Commissioner’s. Id. at 720-21. 15 IV. THE EVALUATION OF DISABILITY 16 People are “disabled” for purposes of receiving Social 17 Security benefits if they are unable to engage in any substantial 18 gainful activity owing to a physical or mental impairment that is 19 expected to result in death or has lasted, or is expected to 20 last, for a continuous period of at least 12 months. 42 U.S.C. 21 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 22 1992). 23 A. The Five-Step Evaluation Process 24 An ALJ follows a five-step sequential evaluation process to 25 assess whether someone is disabled. 20 C.F.R. § 416.920(a)(4); 26 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as 27 amended Apr. 9, 1996). In the first step, the Commissioner must 28 determine whether the claimant is currently engaged in 3 1 substantial gainful activity; if so, the claimant is not disabled 2 and the claim must be denied. § 416.920(a)(4)(i). 3 If the claimant is not engaged in substantial gainful 4 activity, the second step requires the Commissioner to determine 5 whether the claimant has a “severe” impairment or combination of 6 impairments significantly limiting his ability to do basic work 7 activities; if not, a finding of not disabled is made and the 8 claim must be denied. § 416.920(a)(4)(ii) & (c). 9 If the claimant has a “severe” impairment or combination of 10 impairments, the third step requires the Commissioner to 11 determine whether the impairment or combination of impairments 12 meets or equals an impairment in the Listing of Impairments 13 (“Listing”) set forth at 20 C.F.R., part 404, subpart P, appendix 14 1; if so, disability is conclusively presumed and benefits are 15 awarded. § 416.920(a)(4)(iii) & (d). 16 Before proceeding to step four, the ALJ must determine the 17 claimant’s residual functional capacity (“RFC”).2 18 § 416.920(e); see also Laborin v. Berryhill, 867 F.3d 1151, 1153 19 (9th Cir. 2017) (ALJ assesses claimant’s RFC between steps three 20 and four). The fourth step requires that the ALJ determine 21 whether the claimant’s RFC is sufficient to perform past relevant 22 work. § 416.920(a)(4)(iv). When the claimant has no past 23 relevant work, the Commissioner then bears the burden of 24 establishing that he is not disabled because he can perform other 25 substantial gainful work in the national economy, the fifth and 26 27 2 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 416.945(a)(1); see Cooper v. 28 Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 4 1 final step of the analysis. §§ 416.920(a)(4)(v), 416.960(c)(2); 2 Drouin, 966 F.2d at 1257. 3 B. The ALJ’s Application of the Five-Step Process 4 At step one, the ALJ found that Plaintiff had not engaged in 5 substantial gainful activity since June 18, 2015, the application 6 date. (AR 28.) At step two, he determined that he had the 7 severe impairments of “schizoid personality disorder, bipolar 8 disorder, history of a seizure disorder, chronic obstructive 9 pulmonary disease (COPD), and obstructive sleep apnea.” (Id.) 10 At step three, he concluded that Plaintiff’s impairments did 11 not meet or equal any of the impairments in the Listing. (AR 29- 12 30.) At step four, he found that Plaintiff had the RFC to 13 perform light work with additional limitations: 14 Can sit about six hours total and can stand and/or walk 15 about six hours total in an eight-hour workday with 16 normal breaks. Can never climb ladders, ropes, or 17 scaffolds, but can frequently climb ramps and stairs. 18 Can frequently balance, kneel, stoop, crouch, and crawl. 19 Can never be exposed to concentrated levels of pulmonary 20 irritants. Can never operate a motor vehicle as a work 21 requirement. Can not [sic] work around unprotected 22 heights, moving machinery, or large bodies of water. Can 23 perform simple, routine tasks that can be learned in 30 24 days or less with an SVP of 1 or 2, requiring visual 25 demonstration learning. Can tolerate occasional changes 26 to work place setting or procedures. Can have only 27 occasional interaction with coworkers, supervisors, and 28 the public. 5 1 (AR at 30-31.) Because Plaintiff had no past relevant work, the 2 ALJ continued to step five. (AR 34.) 3 At that step, considering Plaintiff’s age, education, work 4 experience, and RFC and the VE’s testimony, he found that 5 Plaintiff could perform several jobs existing in significant 6 numbers in the national economy. (AR 34-35.) Accordingly, he 7 found him not disabled. (AR 35.) 8 V. DISCUSSION3 9 Plaintiff contends that the ALJ improperly rejected his 10 “testimony concerning his subjective symptoms by failing to offer 11 any specific, clear and convincing reasons supported by 12 substantial evidence in the record.” (J. Stip. at 3.) He 13 specifically challenges only the ALJ’s assessment of his 14 statements concerning his respiratory ailments. (See id. at 4-6, 15 12-13.) For the reasons discussed below, the ALJ did not err. 16 17 18 19 20 21 22 3 In Lucia v. SEC, 138 S. Ct. 2044, 2055 (2018), the Supreme Court held that ALJs of the Securities and Exchange Commission 23 are “Officers of the United States” and thus subject to the Appointments Clause. To the extent Lucia applies to Social 24 Security ALJs, Plaintiff has forfeited the issue by failing to raise it during his administrative proceedings. (See AR 43-60, 25 248-50); Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (as 26 amended) (plaintiff forfeits issues not raised before ALJ or Appeals Council); see also Kabani & Co. v. SEC, 733 F. App’x 918, 27 919 (9th Cir. 2018) (rejecting Lucia challenge because plaintiff did not raise it during administrative proceedings), cert. 28 denied, 139 S. Ct. 2013 (2019). 6 1 The ALJ Gave Clear and Convincing Reasons to Partially 2 Discount Plaintiff’s Subjective Symptom Statements 3 A. Relevant background4 4 1. Plaintiff’s treating doctors 5 Plaintiff was treated from June 23, 2014, through November 6 20, 2017, by primary-care physician Vivek Gill. (AR 251-60, 373- 7 414.) Progress notes are mostly illegible but indicate that Dr. 8 Gill prescribed Depakote ER5 on June 23, 2014 (AR 255), examined 9 Plaintiff prehydrocelectomy6 on February 16, 2015 (AR 253, 295- 10 96), noted complaints of breathing problems on June 30, 2015 (AR 11 377), and referred him for a CT scan on January 25, 2017, after 12 finding a “slightly enlarged lymph node in [his] che[s]t” (AR 13 400; see also id. at 412-14). On November 21, 2017, Plaintiff’s 14 chief complaint was “[c]heck blood pressure,” and Dr. Gill 15 reported a history of “[grand mal] seizures; [m]ild compression T 16 7, 9, 10; COPD; 6 MM Frontoparietal Meningioma;7 COPD with 17 18 4 Because Plaintiff challenges only the ALJ’s findings concerning his respiratory-impairment symptoms, the Court limits 19 its discussion primarily to those facts. 20 5 “Depakote ER . . . is indicated for the treatment of acute manic or mixed episodes associated with bipolar disorder, with or 21 without psychotic features.” Depakote ER, U.S. Nat’l Libr. of 22 Med., https://dailymed.nlm.nih.gov/dailymed/drugInfo (type “Depakote ER”; then follow first Depakote ER hyperlink) (last 23 visited May 18, 2020). 24 6 “A hydrocelectomy is a surgical procedure to repair a hydrocele, which is a buildup of fluid around a testicle.” 25 Hydrocelectomy: What You Need to Know, Healthline, https:// 26 www.healthline.com/health/hydrocelectomy (last visited May 18, 2020). 27 7 “A meningioma is a tumor that arises from a layer of 28 (continued...) 7 1 Asthma; [and] L. Hilar L. nodes.”8 (AR 374.) 2 Plaintiff’s CT scan indicated “[e]nlarged adenoids, evaluate 3 for lymphoproliferative disease.”9 (AR 389.) The scan found 4 “[n]o pathologically enlarged lymph nodes,” and as to Plaintiff’s 5 lungs, airways, and pleura, the “trachea and central airways 6 [were] . . . clear,” and there was “approved scarring” in the 7 left upper and lower lobes, “stable linear . . . scarring/ 8 nodularity” in the lateral right lower and left upper lobes, 9 “[n]o new or suspicious pulmonary nodules,” “mild emphysema,” and 10 “bullous disease10 . . . similar to the prior exam.” (Id.) The 11 12 7 (...continued) 13 tissue (the meninges) that covers the brain and spine. . . . Most are considered ‘benign’ because they are slow-growing with 14 low potential to spread.” Meningioma Brain Tumor, UCLA Health, https://www.uclahealth.org/neurosurgery/meningioma-brain-tumor 15 (last visited May 18, 2020). 16 8 “Hilar lymph nodes are those that are immediately adjacent to the main-stem bronchus and hilar vessels, including the 17 proximal portions of the pulmonary veins and main pulmonary 18 artery.” Ahmed H. El-Sherief et al., Lymph Node Map: Radiologic Review with CT Illustration, 6 RadioGraphics 1680, 1684 (Oct. 19 2014), available at https://pubs.rsna.org/doi/pdf/10.1148/ rg.346130097. 20 9 In lymphoproliferative disease, “cells of the lymphatic 21 system grow excessively”; it is often treated like cancer. 22 Lymphoproliferative Disorder, Nat’l Cancer Inst., https:// www.cancer.gov/publications/dictionaries/cancer-terms/def/ 23 lymphoproliferative-disorder (last visited May 18, 2020). 24 10 “[A] bulla is an air-filled space of > 1 cm in diameter within the lung which has developed because of emphysematous 25 destruction of the lung parenchyma. . . . Eighty percent of 26 patients presenting with bullae have associated pulmonary emphysema, [which] is referred to as bullous emphysema. It is a 27 subset of chronic obstructive pulmonary disease.” Bullous Emphysema, Nat’l Ctr. for Biotechnology Info., https:// 28 (continued...) 8 1 radiologist found the “newly prominent . . . lymph nodes . . . 2 indeterminate” and recommended a “[s]hort-term follow-up CT chest 3 . . . in 3 months.” (AR 391.) That follow-up scan found 4 Plaintiff’s lung changes “stable” and “benign.” (AR 387.) 5 Dr. Gill referred Plaintiff for a neurology history and 6 physical, which was performed by neurologist Raj Karnani on June 7 10, 2014. (AR 342.) Dr. Karnani found Plaintiff normal in all 8 areas and described him as “[a]lert and oriented.” (Id.) 9 Plaintiff was admitted to the hospital on August 29, 2014, 10 with “flu-like symptoms,” then discharged the next day; his 11 diagnosis was acute bronchitis. (AR 267-76.) On October 7, 12 2014, he saw neurologist Purnima Thakran for his seizures. (AR 13 327-29.) They had begun approximately four years prior and were 14 “mild,” with a “duration [of] 3-4 minutes.” (AR 327.) They were 15 aggravated by a “brain tumor,” and associated symptoms were “an 16 aura preceeding [sic] the seizure, lightheadedness, confusion, 17 [and] nausea.” (Id.) Dr. Thakran noted that Plaintiff’s 18 [o]verall condition is variable. The patient was on 19 Dilantin initially which worked well for seizure control 20 but caused gum hyperplasia and patient lost all his 21 teeth. Now on Depakote but tolerating poorly due to 22 extreme mood swings, anger. 23 (Id.) She assessed him with “[l]ocalization-related epilepsy 24 with complex partial seizures with intractable epilepsy” and 25 26 27 10 (...continued) www.ncbi.nlm.nih.gov/books/NBK537243/ (last visited May 18, 28 2020). 9 1 meningioma and prescribed oxcarbazepine,11 continued Depakote, 2 ordered an EEG, and planned to “taper Depakote next visit.” (AR 3 328.) She continued him on Ventolin HFA Aerosol Solution12 and 4 Qvar Aerosol Solution13 daily. (Id.) As to injury prevention, 5 Dr. Thakran recommended “no driving, climbing to heights, 6 operating machinery, swimming alone or other hazardous activity.” 7 (AR 329.) 8 The EEG was performed on October 31, 2014, and showed 9 “[n]ormal awake/asleep.” (AR 339.) Because “a routine normal 10 EEG does not preclude a diagnosis of epilepsy,” “[c]linical 11 correlation [was] recommended.” (Id.) On August 25, 2015, 12 another EEG was recorded, with a clinical impression of “[n]ormal 13 72 hour ambulatory EEG.” (AR 337.) At Plaintiff’s EEG follow-up 14 appointment, Dr. Thakran noted, “[i]mproving seizures.” (AR 15 335.) 16 At her recommendation, Plaintiff had a brain MRI on August 17 18 11 Oxcarbazepine tablets are “indicated for use as 19 monotherapy or adjunctive therapy in the treatment of partial- onset seizures in adults.” Oxcarbazepine, U.S. Nat’l Libr. of 20 Med., https://dailymed.nlm.nih.gov/dailymed/drugInfo (type “Oxcarbazepine”; then follow first hyperlink for Oxcarbazepine) 21 (last visited May 18, 2020). 22 12 “Ventolin HFA Inhalation Aerosol is indicated for the 23 treatment or prevention of bronchospasm in patients aged 4 years and older with reversible obstructive airway disease.” Ventolin 24 HFA, U.S. Nat’l Libr. of Med., https://dailymed.nlm.nih.gov/ dailymed/drugInfo (type “Ventolin HFA”; then follow first 25 hyperlink for Ventolin HFA (albuterol sulfate) aerosol, metered) 26 (last visited May 18, 2020). 27 13 “Qvar is used to prevent asthma attacks in adults and children who are at least 5 years old.” Qvar, Drugs.com, 28 https://www.drugs.com/mtm/qvar.html (last visited May 18, 2020). 10 1 31, 2016. (AR 357, 365-66.) It found a “[v]ery mild interval 2 increase in size of a small . . . mass which likely represents a 3 meningioma.” (AR 366.) It “[a]gain identified extensive 4 bilateral mastoid air cell disease” and “[e]nlarged adenoids with 5 mild cystic changes . . . likely secondary to reactive lymphoid 6 hypertrophy,”14 but clinical correlation was suggested because 7 “lymphoma cannot be entirely excluded.” (Id.) At Plaintiff’s 8 next three appointments, in 2017, he reported no further 9 seizures, and Dr. Thakran recommended continued observation, 10 “serial MRI” for the brain tumor, and refill of medication for 11 seizures. (AR 344-51.) 12 Dr. Robert Tsou, an ear, nose, and throat specialist, 13 treated Plaintiff for “bilateral nasal airway obstruction” and 14 “hearing loss” throughout 2017 and into 2018. (AR 427-43.) He 15 excised a nasal mass and inserted tubes in his ears. (AR 435- 16 37.) His condition improved but congestion persisted, “likely 17 . . . due to allergies.” (AR 439.) Attempts to remove the tubes 18 resulted “in violent reaction of discomfort,” so Dr. Tsou allowed 19 “time for the PE tube[s] to extrude on their own.” (AR 441.) 20 Four months later, Plaintiff was “having difficulty hearing 21 again” and had “recurrent atrial congestion.” (AR 442.) 22 On February 28, March 21, and April 12, 2018, pulmonologist 23 Anurag Sahai examined Plaintiff and tested his lung capacity, 24 14 Lymphoid hypertrophy “is an increase in the number of 25 normal cells (called lymphocytes) that are contained in lymph 26 nodes,” most often occurring “when there is an infection with bacteria, viruses, or other types of germs and is part of the 27 body’s reaction to the infection.” Lymphoid hyperplasia, U.S. Nat’l Libr. of Med., https://medlineplus.gov/ency/article/ 28 001320.htm (last visited May 18, 2020). 11 1 spirometry, and diffusing capacity. (AR 452-59.) Plaintiff’s 2 reasons for seeing him were COPD, obstructive sleep apnea, and 3 mediastinal adenopathy.15 (AR 452, 455.) As to chest and lungs 4 and cardiovascular exams, Dr. Sahai found Plaintiff “normal” but 5 with “prolonged expiration — both lung fields.” (AR 453, 456.) 6 These results were interpreted as a “severe obstructive lung 7 defect”: 8 The airway obstruction is confirmed by the decrease in 9 flow rate at peak flow and flow at 50% and 75% of the 10 flow volume curve. EVC changed by 8%, FEV1 changed by 11 8%. This is interpreted as an insignificant response to 12 bronchodilator. 13 (AR 458.) Dr. Sahai performed a spirometry on March 21, 2018, 14 indicating a FEV1 of 2.29 before bronchodilation and 2.48 after, 15 and an FVC of 5.74 before bronchodilation and 6.17 after.16 16 (AR 459.) Handwritten notes reflect “moderate obstruction 17 defect,” and “diffusion capacity normal.” (AR 458-59.) 18 19 15 Adenopathy means “[l]arge or swollen lymph nodes.” Med. 20 Definition of Adenopathy, MedicineNet, https:// www.medicinenet.com/script/main/art.asp?articlekey=22429 (last 21 visited May 18, 2020). 22 16 The pulmonary function test, most commonly spirometry, 23 measures ventilation of the lungs. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 3.00(D)(4) (2020). Normal results vary from person 24 to person based on age, race, height, and gender. Spirometry Normal Values and How to Read Your Results, Healthline, https:// 25 www.healthline.com/health/spirometry#results (last visited May 26 18, 2020). For Caucasian men aged 50 and 68 inches tall, like Plaintiff, the “lower limit of normal” for FVC is 3.85 and for 27 FEV1 2.93. Spirometry Reference Value Calculator, Nat’l Inst. for Occupational Safety & Health, https://www.cdc.gov/niosh/ 28 topics/spirometry/refcalculator.html (last visited May 18, 2020). 12 1 2. Examiners and reviewers 2 Dr. Seung Ha Lim, an internist, examined Plaintiff on 3 November 24, 2015, at Defendant’s request. (AR 317-20.) He 4 described Plaintiff’s chief complaints as “[h]istory of seizures 5 and asthma.” (AR 317.) Dr. Lim performed a pulmonary function 6 test documenting FEV1 of 2.32 before bronchodilation and 2.50 7 after, and an FVC of 4.56 before bronchodilation and 4.27 after. 8 (AR 312.) Dr. Lim interpreted these findings as “severe 9 obstructive lung disease,” noting that it “improved [with] 10 bronchodilation.” (Id.) After conducting a full examination of 11 Plaintiff, he provided the following functional assessment: 12 Based on available medical information, the patient, in 13 my opinion, is restricted to standing and/or walking 14 about 6 hours in an eight-hour workday with appropriate 15 breaks. The patient would be able to sit for 6 hours in 16 an eight-hour day with appropriate breaks. The patient 17 would be able to lift and/or carry 20 pounds occasionally 18 and 10 pounds frequently. The patient should avoid 19 unprotected heights and handling of dangerous machinery. 20 The patient has environmental limitations due to a 21 history of asthma. 22 (AR 320.) 23 A pulmonary function test was performed again on June 2, 24 2018, reflecting an FEV1 of 1.61 before bronchodilation and 1.51 25 after. (AR 446.) It showed an FVC of 3.43 before 26 bronchodilation and 3.36 after. (Id.) Interpretation notes 27 indicate “severe obstruction.” (Id.) 28 Dr. Gideon Lowe, III, an ophthalmologist (see AR 81 (showing 13 1 signature code of 28)); Soc. Sec. Admin., Program Operations 2 Manual System (POMS) DI 24501.004 (May 5, 2015), https:// 3 secure.ssa.gov/apps10/poms.nsf/lnx/0424501004 (signature code 28 4 indicates ophthalmology), reviewed the files on February 18, 5 2016, and rated Plaintiff’s exertional limitations similarly to 6 Dr. Lim. (AR 74-76.) He further noted that Plaintiff had 7 unlimited ability to “push and/or pull (including operation of 8 hand and/or foot controls)” and was limited to occasionally 9 “climbing ramps/stairs,” “stooping,” “kneeling,” “crouching,” and 10 “crawling.” (AR 75.) He found limitations in exposure to 11 unprotected heights and environmental factors because of 12 Plaintiff’s seizure disorder and asthma. (AR 75-76.) On 13 reconsideration, Dr. E. Cooper concurred with the limitations 14 identified by Dr. Lowe.17 (AR 91-93.) 15 Psychiatrist R. Singh reviewed Dr. Thakran’s opinion on 16 reconsideration and gave it “great weight.”18 (AR 90.) As for 17 Plaintiff’s subjective symptoms, he opined that 18 [b]ased on the statements of allegations compared to the 19 enclosed objective evidence, the statements appear 20 partially credible. The impairments could be expected to 21 produce some of the claimant’s stated symptoms but MER 22 and ADLs do[] not support the level of severity of the 23 claimant’s stated limitations. 24 17 Dr. Cooper’s area of specialty is not apparent from the 25 record. 26 18 Dr. Singh used a signature code of 37 (see AR 98), 27 indicating a psychiatry specialty, see Soc. Sec. Admin., Program Operations Manual System (POMS) DI 24501.004 (May 5, 2015), 28 https://secure.ssa.gov/apps10/poms.nsf/lnx/0424501004. 14 1 (Id.) 2 3. Plaintiff’s statements 3 Plaintiff described in his function report how his 4 “illnesses, injuries, or conditions” limited his ability to work: 5 Seizures, confusion, rage, cannot go into sun or white 6 light for extended time without throwing up, no control 7 over function[.] Difficulty seeing, dehydration, 8 fainting[.] Cannot work with people getting violent, 9 upset, anxiety, panic attacks[.] 10 (AR 199.) On a typical day he had coffee, watched television, 11 and tried to work in the yard if he could. (AR 200.) His sleep 12 was affected because he could not “stop thoughts and voices.” 13 (Id.) His ability to perform personal care was not limited; he 14 prepared “tv dinners” daily and mowed a small yard, with stops 15 for dizziness. (AR 200-01.) He needed reminders to take 16 medicines and do chores. (AR 201.) He argued and fought with 17 others and had “no social life.” (AR 204.) 18 At Plaintiff’s hearing, he described why he believed he was 19 unable to work: 20 I can’t breathe at all. And I have a hard time being 21 around people. That’s pretty much it. My hands are on 22 fire all the time, the medicine. I don’t sleep much at 23 all. And the little bit I do sleep, when I wake up from 24 it, I can’t breathe. It takes me an hour, hour and a 25 half of choking and puking to get my lungs back to 26 breathing. That’s pretty much it. 27 (AR 49-50.) He couldn’t do much housework because dust bothered 28 him, and he had to take breaks when showering or shaving because 15 1 he couldn’t breathe. (AR 50-51.) He left the house only to go 2 to doctor’s appointments because “[o]ther people are safer.” (AR 3 51.) 4 4. The ALJ’s decision 5 The ALJ found that Plaintiff’s “medically determinable 6 impairments could reasonably be expected to cause the alleged 7 symptoms; however, [his] statements concerning the intensity, 8 persistence, and limiting effects of these symptoms are not 9 entirely consistent with the medical evidence and other evidence 10 in the record.” (AR 31.) Despite a history of respiratory 11 difficulties, he noted, “x-rays of his chest and lungs were 12 essentially normal.” (Id.) While treatment records documented 13 diagnoses of “asthma, COPD, as well as a newly-diagnosed brain 14 tumor,” “physical examinations were within normal limits, with no 15 documented abnormalities.” (Id.) He noted Plaintiff’s history 16 of seizures but observed that the condition appeared “to be 17 manageable with medications.” (Id.) 18 Relying on Dr. Lim’s November 2015 consulting opinion, to 19 which he gave “great weight” (AR 33), the ALJ recognized 20 documented complaints of “seizure disorder and asthma” but noted 21 that overall Plaintiff had an “unremarkable objective 22 presentation.” (AR 32.) After a change in medication, he had 23 not had any seizures for several months. (Id.) He “reported 24 daily asthma attacks” and an “increased expiratory phase of 25 breathing on auscultation,” “consistent with COPD,” but Dr. Lim 26 nonetheless opined that he could “stand or walk for six hours 27 total and sit for six hours total in an eight-hour workday,” 28 “lift 20 pounds occasionally and 10 pounds frequently,” and 16 1 should “avoid unprotected heights and handling of dangerous 2 machinery, as well as respiratory irritants due to his asthma,” 3 which was inconsistent with Plaintiff’s claimed limitations. 4 (Id.) 5 The ALJ noted the results of pulmonary function tests in 6 November 2015 and March and June 2018, showing FEVI and FVC 7 levels before and after bronchodilation. (Id.) A CT of 8 Plaintiff’s chest in December 2017 “showed stable lung findings 9 consistent with COPD,” and a CT of his sinuses “showed no 10 evidence of sinusitis, but did note a septal deviation.” (Id.) 11 He had a “normal awake/sleep EEG.” (Id.) 12 The ALJ found Plaintiff’s allegations “somewhat out-of- 13 proportion to the medical findings.” (AR 33.) They were “not 14 fully consistent” with the “objective medical evidence and the 15 record as a whole.” (Id.) Although the medical records 16 documented asthma and COPD, they reflected “only mild objective 17 findings.” (Id.) Plaintiff had “a normal ambulatory EEG, he 18 could manage his asthma with medications, and consistently 19 exhibited respiratory test values within the mild to moderate 20 range.” (Id.) Construing the evidence in the light most 21 favorable to him, the ALJ found Plaintiff capable of “light 22 exertion” with postural and environmental limitations. (Id.) 23 B. Applicable law 24 An ALJ’s assessment of a claimant’s allegations concerning 25 the severity of his symptoms is entitled to “great weight.” 26 Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989) (as amended) 27 (citation omitted); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 28 1985) (as amended Feb. 24, 1986). “[T]he ALJ is not ‘required to 17 1 believe every allegation of disabling pain, or else disability 2 benefits would be available for the asking, a result plainly 3 contrary to 42 U.S.C. § 423(d)(5)(A).’” Molina v. Astrue, 674 4 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair v. Bowen, 885 F.2d 5 597, 603 (9th Cir. 1989)). 6 In evaluating a claimant’s subjective symptom testimony, the 7 ALJ engages in a two-step analysis. See Lingenfelter, 504 F.3d 8 at 1035-36; see also SSR 16-3p, 2016 WL 1119029, at *3 (Mar. 16, 9 2016). “First, the ALJ must determine whether the claimant has 10 presented objective medical evidence of an underlying impairment 11 [that] could reasonably be expected to produce the pain or other 12 symptoms alleged.” Lingenfelter, 504 F.3d at 1036 (citation 13 omitted). If such objective medical evidence exists, the ALJ may 14 not reject a claimant’s testimony “simply because there is no 15 showing that the impairment can reasonably produce the degree of 16 symptom alleged.” Id. (citation omitted and emphasis in 17 original). 18 If the claimant meets the first test, the ALJ may discount 19 the claimant’s subjective symptom testimony only if he makes 20 specific findings that support the conclusion. See Berry v. 21 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). Absent a finding or 22 affirmative evidence of malingering, the ALJ must provide a 23 “clear and convincing” reason for rejecting the claimant’s 24 testimony. Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 25 2015) (as amended) (citing Lingenfelter, 504 F.3d at 1036); 26 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th 27 Cir. 2014). The ALJ may consider, among other factors, the 28 claimant’s (1) reputation for truthfulness, prior inconsistent 18 1 statements, and other testimony that appears less than candid; 2 (2) unexplained or inadequately explained failure to seek 3 treatment or to follow a prescribed course of treatment; (3) 4 daily activities; (4) work record; and (5) physicians’ and third 5 parties’ statements. Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 6 996, 1006 (9th Cir. 2015) (as amended); Thomas v. Barnhart, 278 7 F.3d 947, 958-59 (9th Cir. 2002). If the ALJ’s evaluation of a 8 plaintiff’s alleged symptoms is supported by substantial evidence 9 in the record, the reviewing court “may not engage in second- 10 guessing.” Thomas, 278 F.3d at 959. 11 C. Analysis 12 The ALJ provided clear and convincing reasons supported by 13 substantial evidence for partially discounting Plaintiff’s 14 subjective symptom statements. Initially, the ALJ properly 15 concluded that Plaintiff’s subjective complaints were 16 inconsistent with the objective medical evidence (AR 31), which 17 is a “sufficient basis” for rejecting a claimant’s subjective 18 symptom testimony. Carmickle v. Comm’r., Soc. Sec. Admin., 533 19 F.3d 1155, 1161 (9th Cir. 2008) (citation omitted); see also 20 Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 21 1999) (upholding “conflict between [plaintiff’s] testimony of 22 subjective complaints and the objective medical evidence in the 23 record” as “specific and substantial” reason undermining 24 statements). Specifically, the ALJ cited to “essentially normal” 25 x-rays of his chest and lungs, physical examinations “within 26 normal limits, with no documented abnormalities,” inconsistent 27 reporting of seizures, and “normal awake/sleep EEG.” (AR 31-32.) 28 Plaintiff challenges the ALJ’s evaluation of the medical 19 1 evidence, arguing that three pulmonary tests indicated “severe 2 obstructive lung disease” and supported his symptom statements. 3 (J. Stip. at 4; see also id. at 13 (noting doctors’ notations of 4 obstructive lung defect).) But as the ALJ recognized and 5 Plaintiff has not challenged, Plaintiff’s respiratory ailments 6 were not restrictive enough to meet a Listing (see AR 29), and a 7 “severe” impairment does not necessarily imply a disabling 8 functional limitation. See Matthews v. Shalala, 10 F.3d 678, 680 9 (9th Cir. 1993) (rejecting claim of disability when plaintiff 10 failed to meet burden to prove impairment was disabling). The 11 ALJ acknowledged that treatment records showed a “history of 12 respiratory difficulties,” asthma, and COPD but nevertheless 13 recognized that objective medical tests and findings indicated 14 “normal” chest and lung x-rays, physical examinations, and 15 “awake/sleep EEG.” See Stoffan v. Berryhill, No. 16-CV-1654-SKO, 16 2018 WL 1335392, at *10 (E.D. Cal. Mar. 15, 2018) (no disability 17 when plaintiff with syncope, COPD, depression, and chronic pain 18 “was in no acute distress, appeared healthy, had good air 19 movement, and ambulated normally”). As the ALJ noted (AR 29, 31- 20 32), Plaintiff’s mild to moderate FVC and FEV1 test results were 21 inconsistent with his claim that he couldn’t “breathe at all” 22 (AR 49, 51). And his normal sleep EEG contradicted his assertion 23 that he couldn’t sleep “much at all.” (AR 49-50.) 24 Second, medical records showed that Plaintiff’s seizures, 25 COPD, and asthma were “manageable,” “stable,” and controlled with 26 medications, as the ALJ found. (AR 31, 33.) “Impairments that 27 can be controlled effectively with medication are not disabling 28 for the purpose of determining eligibility for SSI benefits.” 20 1 Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th 2 Cir. 2006); see also Danny L. R. II v. Saul, No. SA CV 19-498- 3 PLA, 2020 WL 264583, at *10 (C.D. Cal. Jan. 17, 2020) (ALJ’s 4 finding that pain medication provided relief from chronic pain 5 syndrome and mental-health medications controlled anxiety and 6 depression was clear and convincing reason to discount 7 plaintiff’s subjective symptom testimony). Indeed, Plaintiff’s 8 “auras” lessened after starting seizure medication in October 9 2014 (see AR 327-36), and he was seizure free at all three 10 appointments in 2017 (AR 344-51), with normal awake/asleep and 11 ambulatory EEGs (AR 337, 339). And his COPD while on medication 12 was “mild,” and he had “normal” lung diffusion capacity. (AR 13 455, 458.) Contrary to Plaintiff’s contention raised for the 14 first time in his reply (see J. Stip. at 13), the ALJ’s finding 15 that many of his conditions were manageable with medication was 16 amply supported by the record. 17 Finally, the ALJ relied on examining and reviewing doctors’ 18 opinions that Plaintiff could work with appropriate limitations 19 to discount his statements to the contrary. (See AR 32-34.) 20 This is a separate, independent reason from inconsistency with 21 the objective medical evidence, see § 416.929(c)(4); Molina, 674 22 F.3d at 1113 (examining doctor’s opinion that condition “was not 23 severe” and could be “control[led]” was “specific, clear, and 24 convincing reason[]” to reject subjective symptom testimony); 25 Moncada v. Chater, 60 F.3d 521, 524 (9th Cir. 1995) (per curiam) 26 (examining doctor’s assessment that plaintiff “could do sedentary 27 work” was “specific” and “valid” reason to reject his “claims of 28 excessive pain”), contrary to Plaintiff’s implication (see J. 21 1 Stip. at 5-6). The ALJ gave “great weight” to the opinions of 2 Dr. Lim and the “State agency doctors and psychologists.” (AR 3 33-34.) And he cited specific portions of treatment notes and 4 data from treating physicians Gill’s and Thakran’s records to 5 support his findings and to partially discount Plaintiff’s 6 statements. (See AR 29, 31-32.) Further, Dr. Lim’s opinion was 7 consistent with the RFC. Plaintiff never addresses the ALJ’s 8 reliance on the doctors’ opinions as a separate reason to 9 discount his statements. 10 The ALJ properly considered the objective medical evidence, 11 the doctors’ opinions, and Plaintiff’s ability to control his 12 symptoms with treatment in partially discounting his statements 13 about them. (AR 32.) In doing so, he provided clear and 14 convincing reasons and did “not arbitrarily discredit” 15 Plaintiff’s testimony. Orteza v. Shalala, 50 F.3d 748, 750 (9th 16 Cir. 1995). 17 The ALJ did not err, and remand is not warranted. 18 19 20 21 22 23 24 25 26 27 28 22 CONCLUSION 2 Consistent with the foregoing and pursuant to sentence four 3 |/of 42 U.S.C. § 405(g),1? IT IS ORDERED that judgment be entered 4 || DENYING Plaintiff’s request for remand, AFFIRMING the 5 | Commissioner’s decision, and DISMISSING this action with 6 || prejudice. 7 8 || DATED: May 20, 2020 fo brobate- JE ROSENBLUTH 9 U.S. Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 | -— 26 19 This sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, 27 || a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the 28 || cause for a rehearing.” 23