1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3 4 MICHAEL HAMMONDS, No. 1:19-cv-01139-GSA 5 Plaintiff, 6 v. ORDER DIRECTING ENTRY OF JUDGMENT IN FAVOR OF THE 7 ANDREW SAUL, Commissioner of Social COMMISSIONER OF SOCIAL SECURITY Security, AND AGAINST PLAINTIFF 8
9 Defendant.
11 I. Introduction 12 Plaintiff Michael Hammonds (“Plaintiff”) seeks judicial review of a final decision of the 13 Commissioner of Social Security (“Commissioner” or “Defendant”) denying his application for 14 supplemental security income pursuant to Title XVI of the Social Security Act. The matter is before 15 the Court on the parties’ briefs which were submitted without oral argument to the Honorable Gary 16 S. Austin, United States Magistrate Judge.1 See Docs. 19, 20 and 21. After reviewing the record, 17 the Court finds that substantial evidence and applicable law support the ALJ’s decision. 18 Accordingly, Plaintiff’s appeal is denied. 19 II. Procedural Background 20 On March 4, 2015 Plaintiff filed an application for supplemental security income alleging 21 disability beginning February 24, 1994. AR 164–69. Plaintiff claimed disability due to 22 emphysema, asthma, pain associated with 17 screws, bolts, and rods inserted in his right leg, bullets 23 present in his lower body, arthritis, post-traumatic stress disorder, depression, and anti-social 24 behavior. AR 164–69, 187. The Commissioner denied the application initially on November 2, 25 2015 and on reconsideration on August 9, 2016. AR 104–07; 110–12. 26 Plaintiff requested a hearing on October 10, 2016. AR 16. Administrative Law Judge Joyce 27
28 1 The parties consented to the jurisdiction of the United States Magistrate Judge. See Docs. 9 and 10. 1 Frost-Wolf (the “ALJ”) presided over an administrative hearing on December 13, 2017. AR 16. 2 Plaintiff appeared without the assistance of counsel or other representative. AR 16. On August 20, 3 2018, the ALJ issued a decision denying Plaintiff’s application. AR 16–28. 4 The Appeals Council denied review on June 21, 2019. AR 1–3. On August 26, 2019, 5 Plaintiff filed a complaint in this Court. Doc. 1. 6 III. Factual Background 7 A. Plaintiff’s Testimony 8 1. Agency Hearing 9 Plaintiff testified as follows at the administrative hearing on December 13, 2017. Plaintiff 10 (born May 16, 1971) lived with his wife, grandson and daughter in a two-story apartment which 11 required the use of stairs. AR 48–49. Plaintiff’s highest level of education was the 7th grade. AR 12 49. Plaintiff had not worked in the previous 15 years. AR 50. Plaintiff suffered from emphysema, 13 asthma, depression, chronic pain in his right leg, 17 screws, a rod, several bullets, debris, fragments 14 and gunshot wounds in his right leg. AR 50–51. Plaintiff had an inhaler for his breathing 15 conditions. AR 51. He used the inhaler two to three times daily. AR 51. He also had a nebulizer 16 which he used once or twice a day. AR 52. His breathing conditions were affected by exertion, 17 environmental factors like pollen and allergies, the weather, or cologne. AR 52. 18 Plaintiff took Norco, Soma, Tylenol 3, baclofen, Icy Hot Patch, Tiger Balm and lidocaine 19 patch for pain. AR 52–53. He took hydroxyzine for his depression. AR 52. He experienced no 20 side effects from the medication. AR 52. The medication provided some pain relief. AR 53. 21 Activity made pain worse, including walking up stairs, sitting for too long, lifting, or any level of 22 exertion. AR 54. He periodically went out on his apartment balcony with his grandchild, but he 23 used the stairs to and from his apartment as little as possible, perhaps once or twice a week. AR 24 54. His cooking activities were limited to using the microwave or making sandwiches because he 25 might forget the stove or oven were on. AR 54. His chores around the home were limited to 26 picking up after himself. AR 54–55. He chose not to be around a lot of people because he had 27 trust issues. AR 55. He went to the grocery store occasionally if it was a nice day. AR 55–56. 28 During the month prior to the hearing he left the house about half a dozen times. AR 56. He did 1 not spend time with individuals besides family outside the home. AR 56. He was on the waiting 2 list for therapy for depression. AR 57. 3 His physical therapy helped sometimes but other times made him uncomfortable. AR 57. 4 During the year preceding the hearing, he went to the emergency room once for his breathing 5 because he may have caught a virus. AR 57. He described his condition as chronic, noting that it 6 was not improving and that he thought it was getting worse. AR 58. He had been using a cane for 7 four years. AR 58. The cane helped him stay stable when he had to go certain distances because 8 his legs gave out on him sometimes. AR 58. He fell previously, including on one occasion a few 9 months prior to the hearing. AR 58. The fall resulted in him needing crutches for a while thereafter. 10 AR 58. 11 2. Function Report 12 Plaintiff provided additional statements in a July 21, 2018 function report in which he noted 13 daily leg spasms, worsening breathing condition, rarely leaving his home, social isolation, 14 depression non-responsive to medication, and medication side effects of nausea, mood swings, 15 forgetfulness and dizziness. AR 203–10. He estimated he could walk one-half black before 16 needing to rest for 10-15 minutes, depending on the weather. AR 208. He reported poor ability to 17 follow written or spoken instructions, interact with authority, or handle changes in routine. AR 18 208–09.2 19 B. Medical Records 20 Plaintiff suffered eleven gunshot wounds in his left leg in 1994, resulting in a reconstructed 21 right hip and thigh bone, residual bullet fragments and shrapnel, muscle spasms in both legs, and 22 chronic pain. AR 301, 304, 306–07. In May 2013 he reported to his physician with leg pain 23 uncontrolled by pain medication (baclofen), though a physical examination found a normal range 24 of motion in his upper and lower extremities with no swelling, erythema or joint deformities. AR 25 302. Plaintiff was prescribed hydrocodone and Neurontin. AR 303. A May 2013 x-ray revealed 26 bullet fragments in both femurs with no acute fractures in the right or left femur, and no dislocation 27 2 Plaintiff’s mother completed a third-party function report on June 11, 2016, the content of which has not been 28 placed in issue by either party. AR 246–253. 1 or other osseous abnormality in the left femur, which was otherwise unremarkable. AR 306–07. 2 Plaintiff reported to an emergency room on June 27, 2014 with leg pain and received Norco and 3 Xanax. AR 301. Thereafter Plaintiff reported to a physician, PA-C Abernathy, on August 1, 2014, 4 reporting constant sharp and progressive pain as well as bilateral muscle spasms in his legs. AR 5 301. An examination revealed full range of motion in his spine and limited range of leg motion 6 with ability to tandem walk but inability to heel walk. AR 301–02 . His diagnosis was chronic 7 post-operative pain and anxiety. AR 302. He was referred for follow up orthopedic pain 8 management and prescribed Flexeril and Neurontin for pain and Vistaril for anxiety. AR 302. 9 In May 2014 he sought mental health treatment, reporting concentration and decision- 10 making difficulties, mood swings, trust issues, appetite issues, weight loss, suicidal ideation, 11 excessive sleep patterns, nightmares, flash backs, fear of crowds, social isolation, and difficulty 12 handling household tasks. AR 345–47. He was diagnosed with post-traumatic stress disorder and 13 major depressive disorder, recurrent, severe. AR 342. Upon a psychiatric follow-up in October 14 2014, his diagnoses were maintained. AR 334. Plaintiff sought follow-up treatment in March 2015 15 after his son was shot and killed in October 2014. AR 330. He reported that his medications were 16 helping but made him sleepy, and he wanted to switch to valium. AR 330. An examination 17 revealed chronic pain, steady gain, and anxious and depressed mood. AR 331. 18 On some occasions Plaintiff reported constant pain at an intensity level 9 out of 10. See, 19 e.g., AR 444, 448. On other occasions he reported intermittent, moderate pain that was fairly 20 controlled or partially alleviated by medication. See, e.g., AR 381, 403. Plaintiff was prescribed a 21 cane and bilateral knee braces in December 2016. AR 395. In February 2017 Plaintiff reported 22 pain level 9 out of 10. AR 398. Plaintiff reported to the emergency room in February 2017 because 23 of leg pain and difficulty breathing. AR 421. Corresponding records reported a “mildly antalgic 24 gait.” AR 422. He was diagnosed with chronic pain. AR 422. In April 2017 Plaintiff rated his 25 pain a 4 out of 10. AR 400. 26 Plaintiff experienced a fall in July 2017 necessitating a trip to the emergency room. AR 27 425. The physical examination revealed normal extremity range of motion, no tenderness, and a 28 normal gait. AR 426. Femur and pelvis x-rays were negative for new fractures or dislocations. 1 AR 426, 431–32, 452–55. Plaintiff was prescribed pain medication and adhesive patches. AR 426. 2 The next day, following an unsuccessful attempt to obtain his prescription while uninsured, Plaintiff 3 returned to the emergency room with continued pain, the examination noted tenderness and mild 4 knee effusion. AR 429. He was prescribed an immobilizer brace, crutches and Hydrocodone. AR 5 430. 6 After his fall, an August 2017 follow-up visit and physical examination revealed diffuse 7 tenderness and traumatic scarring of the right lower extremity. AR 439. He was referred for a new 8 pain management regimen and physical therapy. AR 446. At Plaintiff’s physical therapy 9 evaluation on October 25, 2017, he reported pre-treatment pain level 9 out of 10. AR 460. He 10 reported pain when performing the physical therapy exercises and adjustments were made. AR 11 460. 12 At Plaintiff’s initial pain management consultation on October 27, 2017, he explained that 13 his pain intensity was 4 out of 10 with medication, 9 out of 10 without medication, that his pain 14 medication provided relief for 1 to 2 hours at a time, and that his pain was alleviated by heat, 15 massage, medications, change of position and rest. AR 516. A physical examination found 16 abnormal range of motion in Plaintiff’s spine. AR 518. Plaintiff was diagnosed with lumbar 17 radiculopathy and admitted for long-term opiate analgesic. AR 518. During a November 2017 18 office visit, Plaintiff reported worsening pain with rainy weather, pain level 8 out of 10, worsening 19 sleep quality, and sleeping only four hours a night. AR 512. 20 A December 2017 examination noted no pain upon range of motion testing, normal gait, 21 and normal lumbar range of motion. AR 509. Two physical examinations in January 2018 22 examination found normal gait, bilateral hip tenderness, and abnormal range of motion in the 23 lumbar spine. AR 497–98; 504. 24 C. Medical Opinions 25 1. Agency Examinations 26 On September 16, 2015, consultative examiner Dr. Peter Ciali, Ph.D., conducted a 27 psychological examination of Plaintiff. AR 357–60. Dr. Ciali noted that Plaintiff ambulated slowly 28 with a single point cane. AR 357. Dr. Ciali reported that Plaintiff displayed fair eye contact, no 1 visual or hearing problems, difficulty with sustained attention and concentration, emotional 2 distress, linear thought process, situationally appropriate thought content, fair recent and remote 3 memory, no perceptual disturbances or delusions, no suicidal or homicidal ideations, sad and tearful 4 affect, fair insight into his problems, intact judgment, and was forthright in providing information. 5 AR 357. Dr. Ciali administered the Montreal Cognitive Assessment (MoCA3), Plaintiff scored 6 18/30, below the normal level of 26 and above. AR 359. Plaintiff’s diagnoses were: PTSD, major 7 depressive disorder, recurrent moderate, r/o antisocial personality disorder. AR 360. Dr. Ciali’s 8 prognosis and recommendations were as follows: capable of independently managing his own 9 funds; guarded prognosis for improvement; significantly impaired ability to perform work related 10 mental activities including remembering information, understanding instructions, and maintaining 11 sustained concentration; significant deficits in ability to socially interact and adapt. AR 360. 12 On September 26, 2015, consultative examiner Abrar Adil, D.O., conducted a physical 13 examination of Plaintiff. AR 362–69. Dr. Adil noted that Plaintiff moved about the exam room 14 easily, had full range of motion in his spine, exhibited normal bilateral toe and heel walking, and 15 “palpable deep subcutaneous retained firm foreign body to left proximal anterior thigh consistent 16 with history of retained [gunshot wound].” AR 363. Dr. Adil noted that Plaintiff ambulated with 17 a steady gate at an appropriate speed without assistive devices. AR 363. Dr. Adil’s assessment 18 was as follows: bilateral leg pain and irritation from hardware and retained extra-articular foreign 19 body/retained bullet fragments, emphysema, asthma, PTSD, depression, status post-multiple 20 gunshot wounds, and past tobacco use. AR 363. Dr. Adil did not opine on Plaintiff’s functional 21 capacity or prognosis. 22 2. Agency Medical Consultants 23 On September 29, 2015, state agency medical consultant Karl K. Boatman, M.D., reviewed 24 Plaintiff’s medical records and opined that Plaintiff’s physical residual functional capacity was 25 limited to light work, occasionally lift/carry 20 pounds, frequently lift/carry 10 pounds, stand, walk 26 and sit for 6 hours on a sustained basis, push or pull on an unlimited basis, occasional climbing, 27 3 MoCA is a brief 30-question test which assesses different types of cognitive abilities, including orientation, short 28 term memory executive function, language abilities and visuospatial ability. 1 balancing, stopping, kneeling, crouching or crawling, with no manipulative, visual or 2 communicative limitations. AR 75–77. Dr. Boatman opined that Plaintiff had some environmental 3 limitations due to his asthma, namely avoiding concentrated exposure to fumes, odors, dusts, gases, 4 poor ventilation and hazards. AR 77. On reconsideration on July 28, 2016, Dr. Donald Baldwin, 5 M.D., a State agency medical consultant, reviewed the updated medical record and opined that Plaintiff 6 could perform work at all exertional levels. AR 94–96. Dr. Baldwin expressed the same environmental 7 limitations as Dr. Boatman expressed, namely the need to avoid concentrated exposure to fumes, odors, 8 dusts, gases, poor ventilation, and other respiratory irritants. AR 94–96. 9 On October 30, 2015, state agency medical consultant Dr. Carolyn Goodrich, PhD, 10 reviewed Plaintiff’s medical records and opined on Plaintiff’s mental residual functional capacity, 11 noting moderate restriction of daily activities, moderate difficulties maintaining social functioning, 12 moderate difficulties maintaining concentration, persistence and pace, and no repeated episodes of 13 decompensation of extended duration. AR 74. Dr. Goodrich opined that Plaintiff had marked 14 limitations remembering and carrying out detailed instructions, and marked difficulty interacting 15 appropriately with the general public. AR 78–79. She further opined that Plaintiff can understand 16 and perform simple tasks under routine supervision, can interact appropriately with others at a 17 superficial level (but not the general public) and can adapt to a work situation. AR 79–80. On 18 reconsideration on July 26, 2016, state agency psychological consultant Laura Lochner, PhD 19 opined as to Plaintiff’s mental residual functional capacity, expressing the same limitations that Dr. 20 Goodrich expressed. AR 96–98. 21 D. Vocational Expert 22 Vocational expert Paul Steven Ramirez testified at the administrative hearing on December 23 13, 2017. Mr. Ramirez opined that there are jobs available in the national economy for an 24 individual of claimant’s age, education and work history with no exertional limitations who could 25 have only occasional exposure to respiratory irritants, perform simple, routine tasks, have only 26 occasional contact with coworkers and supervisors, and have no public contact. AR 61. 27 Specifically, available jobs would include: packer, hand; laborer, stores; and cleaner, housekeeper. 28 AR 61. For an individual with Plaintiff’s background and an exertional limitation of light work, 1 the following jobs would be available: cannery worker; assembler, small products. AR 62. Finally, 2 if a condition was added that the individual had to take two additional breaks during the workday, 3 up to 10 minutes each, no jobs would be available. AR 62. 4 IV. Standard of Review, Generally 5 Pursuant to 42 U.S.C. §405(g), this court has the authority to review a decision by the 6 Commissioner denying a claimant disability benefits. “This court may set aside the 7 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on legal 8 error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180 9 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence within the 10 record that could lead a reasonable mind to accept a conclusion regarding disability status. See 11 Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but less than a 12 preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (internal citation omitted). 13 When performing this analysis, the court must “consider the entire record as a whole and may not 14 affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. Social Security 15 Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citations and internal quotation marks omitted). 16 If the evidence could reasonably support two conclusions, the court “may not substitute its 17 judgment for that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112 18 F.3d 1064, 1066 (9th Cir. 1997) (citation omitted). “[T]he court will not reverse an ALJ’s decision 19 for harmless error, which exists when it is clear from the record that the ALJ’s error was 20 inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 21 1038 (9th Cir. 2008) (citations and internal quotation marks omitted). 22 V. The Disability Standard 23 To qualify for benefits under the Social Security Act, a plaintiff must establish that he or she is unable to engage in substantial gainful 24 activity due to a medically determinable physical or mental impairment that has lasted or can be expected to last for a continuous 25 period of not less than twelve months. 42 U.S.C. § 1382c(a)(3)(A). An individual shall be considered to have a disability only if . . . his 26 physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, 27 considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national 28 economy, regardless of whether such work exists in the immediate 1 area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. 2 42 U.S.C. §1382c(a)(3)(B). 3 To achieve uniformity in the decision-making process, the Commissioner has established a 4 sequential five-step process for evaluating a claimant’s alleged disability. 20 C.F.R. §§ 416.920(a)- 5 (f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding that the 6 claimant is or is not disabled. 20 C.F.R. §§ 416.927, 416.929. 7 Specifically, the ALJ is required to determine: (1) whether a claimant engaged in substantial 8 gainful activity during the period of alleged disability, (2) whether the claimant had medically 9 determinable “severe impairments,” (3) whether these impairments meet or are medically 10 equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1, (4) 11 whether the claimant retained the residual functional capacity (“RFC”) to perform his past relevant 12 work, and (5) whether the claimant had the ability to perform other jobs existing in significant 13 numbers at the national and regional level. 20 C.F.R. § 416.920(a)-(f). 14 VI. The ALJ’s Decision 15 The ALJ found that Plaintiff had not engaged in substantial gainful activity since the 16 application date of March 1, 2015. AR 18. The ALJ found that Plaintiff’s severe impairments were 17 as follows: right femur status post injuries, fixation, and anxiety disorder. AR 18. The ALJ found 18 Plaintiff’s breathing conditions, lumbar pain, PTSD and depression non-severe. AR 18–19. The 19 ALJ found that Plaintiff did not have an impairment or combination of impairments that met or 20 medically equaled the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, 21 Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925, 416.926). AR 19. 22 The ALJ concluded that Plaintiff had the residual functional capacity to perform medium 23 work as defined in 20 C.F.R. §§ 416.967(c), except that he could have only occasional exposure to 24 respiratory irritants, could perform simple routine tasks, and could have no public contact. AR 20. 25 Plaintiff had no past relevant work. AR 26. The ALJ found that considering Plaintiff’s age, 26 education, work experience and residual functional capacity, jobs existed in the national economy 27 in significant numbers that Plaintiff could perform. AR 26. Accordingly, the ALJ concluded that 28 1 Plaintiff was not disabled as defined in the Act. AR 27. 2 VII. Reliability of Plaintiff’s Testimony 3 Plaintiff’s overarching contention is that the ALJ “erred by rejecting Plaintiff’s testimony 4 without a clear and convincing reason based on substantial evidence.” Br. at 20, Doc. 19. 5 A. Applicable Law 6 The ALJ is responsible for determining credibility, resolving conflicts in medical testimony 7 and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). His or her 8 findings of fact must be supported by “clear and convincing evidence.” Burrell v. Colvin, 775 F.3d 9 1133, 1136–37 (9th Cir. 2014). 10 11 To determine whether the ALJ’s findings are supported by sufficient evidence, a court must 12 consider the record as a whole, weighing both the evidence that supports the ALJ’s determination 13 and the evidence against it. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). “[A] federal 14 court’s review of Social Security determinations is quite limited.” Brown-Hunter v. Colvin, 806 15 F.3d 487, 492 (9th Cir. 2015). “For highly fact-intensive individualized determinations like a 16 claimant’s entitlement to disability benefits, Congress places a premium upon agency expertise, 17 18 and, for the sake of uniformity, it is usually better to minimize the opportunity for reviewing courts 19 to substitute their discretion for that of the agency.” Id. (quoting Treichler v. Comm’r of Soc. Sec. 20 Admin., 775 F.3d 1090, 1098 (9th Cir. 2014), quoting Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 21 621 (1966)) (internal quotation marks omitted). Federal courts should generally ‘“leave it to the 22 ALJ to determine credibility, resolve conflicts in the testimony, and resolve ambiguities in the 23 record.’” Brown-Hunter, 806 F.3d at 492 (quoting Treichler, 775 F.3d at 1098). 24 Social Security Ruling 16-3p applies to disability applications heard by the agency on or 25 26 after March 28, 2016. Ruling 16-3p eliminated the use of the term “credibility” to emphasize that 27 subjective symptom evaluation is not “an examination of an individual’s character” but an endeavor 28 1 to “determine how symptoms limit ability to perform work-related activities.” S.S.R. 16-3p at 1- 2 2. 3 A claimant’s statements of pain or other symptoms are not conclusive evidence of a physical 4 or mental impairment or disability. 42 U.S.C. § 423(d)(5)(A); Soc. Sec. Rul. 16-3p. “An ALJ 5 cannot be required to believe every allegation of [disability], or else disability benefits would be 6 7 available for the asking, a result plainly contrary to the [Social Security Act].” Fair v. Bowen, 885 8 F.2d 597, 603 (9th Cir. 1989). 9 An ALJ performs a two-step analysis to determine whether a claimant’s testimony regarding 10 subjective pain or symptoms is credible. See Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 11 2014); Smolen, 80 F.3d at 1281; S.S.R 16-3p at 3. First, the claimant must produce objective 12 medical evidence of an impairment that could reasonably be expected to produce some degree of 13 the symptom or pain alleged. Garrison, 759 F.3d at 1014; Smolen, 80 F.3d at 1281–82. 14 15 If the claimant satisfies the first step and there is no evidence of malingering, the ALJ must 16 “evaluate the intensity and persistence of [the claimant’s] symptoms to determine the extent to 17 which the symptoms limit an individual’s ability to perform work-related activities.” S.S.R. 16-3p 18 at 2. “[S]ome individuals may experience symptoms differently and may be limited by symptoms 19 to a greater or lesser extent than other individuals with the same medical impairments, the same 20 objective medical evidence and the same non-medical evidence.” S.S.R. 16-3p at 5. In reaching a 21 conclusion, the ALJ must examine the record as a whole, including objective medical evidence; the 22 23 claimant’s representations of the intensity, persistence and limiting effects of his symptoms; 24 statements and other information from medical providers and other third parties; and, any other 25 relevant evidence included in the individual’s administrative record. S.S.R. 16-3p at 5. “The 26 determination or decision must contain specific reasons for the weight given to the individual’s 27 symptoms, be consistent with and supported by the evidence, and be clearly articulated so the 28 1 individual and any subsequent reviewer can assess how the adjudicator evaluated the individual’s 2 symptoms.” S.S.R. 16-3p at *10. 3 Because a “claimant’s subjective statements may tell of greater limitations than can medical 4 evidence alone,” an “ALJ may not reject the claimant’s statements regarding her limitations merely 5 because they are not supported by objective evidence.” Tonapetyan v. Halter, 242 F.3d 1144, 6 7 1147–48 (2001) (quoting Fair, 885 F.2d at 602). See also Bunnell v. Sullivan, 947 F.2d 341, 345 8 (9th Cir. 1991) (holding that when there is evidence of an underlying medical impairment, the ALJ 9 may not discredit the claimant’s testimony regarding the severity of his symptoms solely because 10 they are unsupported by medical evidence). “Congress clearly meant that so long as the pain is 11 associated with a clinically demonstrated impairment, credible pain testimony should contribute to 12 a determination of disability.” Id. (internal quotation marks and citations omitted). 13 The law does not require an ALJ simply to ignore inconsistencies between objective 14 15 medical evidence and a claimant’s testimony. “While subjective pain testimony cannot be rejected 16 on the sole ground that it is not fully corroborated by objective medical evidence, the medical 17 evidence is still a relevant factor in determining the severity of claimant’s pain and its disabling 18 effects.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); SSR 16-3p (citing 20 C.F.R. § 19 404.1529(c)(2)). As part of his or her analysis of the record as a whole, an ALJ properly considers 20 whether the objective medical evidence supports or is consistent with a claimant’s pain testimony. 21 Id.; 20 C.F.R. §§ 404.1529(c)(4), 416.1529(c)(4) (symptoms are determined to diminish residual 22 23 functional capacity only to the extent that the alleged functional limitations and restrictions “can 24 reasonably be accepted as consistent with the objective medical evidence and other evidence”). 25 “[O]bjective medical evidence is a useful indicator to help make reasonable conclusions about the 26 intensity and persistence of symptoms, including the effects those symptoms may have on the 27 ability to perform work-related activities.” S.S.R. 16-3p at 6. Because objective medical evidence 28 1 may reveal the intensity, persistence and limiting effects of a claimant’s symptoms, an ALJ must 2 consider whether the symptoms reported by a claimant are consistent with medical signs and 3 laboratory findings of record. Id. For example, “reduced joint motion, muscle spasm, sensory 4 deficit, and motor disruption illustrate findings that may result from, or be associated with, pain.” 5 Id. 6 7 B. Analysis 8 Here, the ALJ found that Plaintiff’s medically determinable impairments could reasonably 9 be expected to cause the alleged symptoms. AR 21. The ALJ found no malingering. AR 21. Thus, 10 the ALJ was required to articulate clear and convincing reasons before rejecting Plaintiff’s 11 testimony. Laborin v. Berryhill, 867 F.3d 1151, 1155 (9th Cir. 2017). 12 Following Plaintiff’s thorough 21-page recitation of fact and law, Plaintiff’s analysis 13 consists of only three short points with minimal accompanying elaboration. The Court will address 14 15 each one in turn. 16 1. Limited Mobility 17 First, Plaintiff takes issue with the ALJ’s opinion for stating that “nothing in the record” 18 indicates Plaintiff’s right femur problem “severely reduced” his mobility, while ignoring contrary 19 medical evidence in the record. Br. at 22 (citing AR 24–25). 20 Before addressing the sub-components of this argument it is worth noting that it has little 21 to do with Plaintiff’s overarching challenge to the ALJ’s decision, namely that ALJ “erred by 22 23 rejecting Plaintiff’s testimony . . .” Br. at 20. Plaintiff does not identify which statements from his 24 testimony support the conclusion that his right femur impairment severely reduces his overall 25 mobility. His testimony, on balance, does not support that conclusion. Although he testified that 26 exertion exacerbated his leg pain, that he had been using a cane for four years, and that he had 27 experienced a fall (AR 54, 58), he also testified that he periodically takes his grandchild on the 28 1 balcony, uses the stairs to his apartment once or twice a week, goes to the store when the weather 2 is nice, left his home half a dozen times the previous month, and experienced some pain relief from 3 medication. AR 53–56. If Plaintiff’s position is that he testified that his femur pain has advanced 4 to the point where his mobility is severely reduced, he does not make that position clear in his brief. 5 Moreover, the ALJ did not reject Plaintiff’s testimony outright. Rather, the ALJ compared 6 7 certain of Plaintiff’s statements with other statements, and the ALJ also compared Plaintiff’s 8 statements with the content of the medical records: 9 The claimant claims he has difficulty lifting, sitting, standing and walking for extended periods due to pain and breathing problems and he uses [a] cane or use[s] 10 crutches to ambulate and prevent falls . . . However, the medical evidence shows 11 that he has normal motor strength, normal range of motion in his joints and stable gate without the use of assistance devices . . . Moreover, he testified that he uses the 12 stairs to get to his apartment on the second floor and his current medications provide relief. 13 AR 25 (emphasis added). Thus, it is not correct for Plaintiff to contend that the ALJ simply 14 15 “rejected” his testimony outright. Rather, the ALJ considered the extent to which the medical 16 evidence and Plaintiff’s testimony as a whole supported the notion that Plaintiff’s mobility was 17 significantly limited. If, as Plaintiff contends, the ALJ did reject part of his testimony, the ALJ’s 18 decision to do so was based on clear and convincing evidence, namely other portions of Plaintiff’s 19 own testimony and innumerable pieces of objective medical evidence. See S.S.R. 16-3p at 5 20 (explaining that an ALJ must “examine the entire case record, including the objective medical 21 evidence; an individual’s statements about the intensity, persistence, and limiting effects of 22 23 symptoms; statements and other information provided by medical sources and other persons; and 24 any other relevant evidence in the individual's case record.”). Here, the ALJ did exactly that, as 25 explained below. 26 Turning now to the specifics of Plaintiff’s argument (specifics which, again, have nothing 27 to do with the content of his testimony), Plaintiff argues that “the ALJ failed to address probative 28 1 evidence in the medical record that contradicts her conclusions.” Br. at 22. An ALJ “need not 2 discuss all evidence presented to her. Rather, she must explain why significant probative evidence 3 has been rejected . . . An ALJ must explain why he has rejected uncontroverted medical evidence.” 4 Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984). 5 Specifically, Plaintiff contends that “the ALJ did not address the portions of the medical 6 7 record which reflect Plaintiff’s physicians prescribed Mr. Hammond a cane due to his reduced 8 mobility,” (Br. at 22, citing AR 345, 357, 426), “[n]or did the ALJ address Emergency Room 9 records pertaining to Mr. Hammonds’ fall in July 2017 resulting in a brace and crutches,” (Br. at 10 22, citing AR 425–30) “[n]or clinical findings of restricted range of motion in Plaintiff’s lower back 11 with pain upon range of motion testing.” (Br. at 22, citing AR 446, 450, 504, 518). 12 Although the ALJ did not cite each record Plaintiff cited, the ALJ properly discussed 13 numerous records touching on the same topics. For example, the ALJ cited others: See, e.g., AR 14 15 22 (“He requested a cane and bilateral knee braces to assist with ambulation . . . He was given a 16 referral for DME (for cane and bilateral knee braces) . . .”). Similarly, although the ALJ did not 17 refer to Plaintiff’s July 24, 2017 emergency visit as an “emergency” visit, she did discuss X-Rays 18 conducted during said visit and X-Rays conducted the following day. See AR 22. Similarly, 19 although the ALJ did not cite each record Plaintiff cites regarding lumbar range of motion, she did 20 discuss others. See, e.g., AR 23 (“Physical examinations . . . were all essentially within normal 21 limits with the exception of pain with hip range of motion . . . decreased lumbar spine range of 22 23 motion . . . Objective findings on clinical examination were otherwise generally within normal 24 limits, including . . . normal range of motion of the lumbar spine . . .”) (emphasis added). Thus, 25 the ALJ did consider the objective medical evidence of Plaintiff’s cane use, his emergency 26 department visit, and his lower back range of motion in reaching a conclusion about his mobility. 27 Thus, Plaintiff’s contention that the ALJ ignored the objective medical evidence on these topics is 28 1 not altogether correct. 2 Moreover, the ALJ’s alleged failure to specifically cite and discuss every medical record 3 cited by Plaintiff regarding cane use and lower back range of motion does not undermine her 4 decision because those records are not uncontroverted. See Vincent, 739 F.2d at 1395 (“An ALJ 5 must explain why he has rejected uncontroverted medical evidence.”). As to Plaintiff’s cane use, 6 7 even substantially contemporaneous records reveal different findings. For example, on September 8 16, 2015, consultative examiner Dr. Peter Ciali reported that Plaintiff “ambulated slowly with a 9 single point cane,” (AR 357), whereas 10 days later on September 26, 2015, consultative examiner 10 Dr. Abrar Adil noted that Plaintiff “ambulate[d] with a steady gate at an appropriate speed without 11 use of assistive devices.” AR 363. Similarly, whereas physical examinations dated October 2017 12 and January 2018 found limited, painful and/or abnormal range of motion in Plaintiff’s low back 13 (AR 518, 499, 504), physical examinations dated August 2014, September 2015 and December 14 15 2017 found normal and/or painless range of motion (AR 302, 363, 509).4 16 The ALJ considered the relevant objective medical evidence concerning Plaintiff’s 17 mobility, some of which supports and some of which contradicts her conclusion. Given the variety 18 of testimonial and medical evidence on both sides of the issue, the ALJ’s conclusion that Plaintiff’s 19 mobility is not several reduced is supported by substantial evidence. See Jamerson v. Chater, 112 20 F.3d 1064, 1066 (9th Cir. 1997) (noting that, if the evidence could reasonably support two 21 conclusions, the court “may not substitute its judgment for that of the Commissioner” and must 22 23
24 4 It is worth noting that these variations are not unique but are emblematic of the administrative record more generally. For example, on some occasions Plaintiff reported sleeping too much (AR 346), whereas other times he reported 25 sleeping too little (AR 512). On some occasions Plaintiff reported constant pain at an intensity level 9 out of 10 (AR 444, 448), whereas on other occasions he reported intermittent, moderate pain that was fairly controlled or partially alleviated by medication (AR 381, 403). In February 2017 Plaintiff rated his pain a 9 out of 10 (AR 398), whereas two 26 months later he rated his pain a 4 out of 10 (AR 400). At Plaintiff’s initial physical therapy evaluation in October 2017 he reported a pain level of 9 out of 10 (AR 460), whereas days later he rated his pain a 4 out of 10 with medication and 27 a 9 out of 10 without medication (AR 516). A July 2017 physical examination noted no tenderness in his back or extremities upon range of motion testing (AR 426), whereas an examination the following day noted tenderness and 28 swelling (AR 429). 1 affirm the decision.). 2 2. Conservative Treatment 3 Plaintiff’s second argument is somewhat difficult to parse, but consists of the following 4 assertions: 1) a claimant cannot be discredited for failing to pursue non-conservative treatment 5 options where none exist; 2) here, Plaintiff was receiving narcotic medication for pain associated 6 7 with his gunshot wounds . . .; 3) the ALJ states that Plaintiff’s treatment has been conservative in 8 nature, but does not address any more aggressive treatment options that could have been provided 9 to Plaintiff; and 4) substantial evidence does not support the ALJ’s finding that Plaintiff has only 10 received conservative treatment for his pain. AR 23. 11 It is not clear whether Plaintiff is arguing 1) that Plaintiff appropriately declined to pursue 12 non-conservative treatment options because none existed, or 2) that the ALJ overlooked the fact 13 that Plaintiff’s course of narcotic medication was itself a non-conservative treatment option. In any 14 15 event, it seems Plaintiff’s broader position is that his alleged failure to pursue non-conservative 16 treatment options is not a legitimate basis for the ALJ to discredit Plaintiff’s testimony about his 17 pain. 18 Plaintiff’s argument here seems undeveloped. It does not appear that the ALJ made a 19 finding that Plaintiff should have pursued non-conservative treatment options, nor discredited 20 Plaintiff’s testimony on that basis. Rather, after observing that the “claimant’s statements 21 concerning the intensity, persistence and limiting effects of his symptoms are not fully supported 22 23 by the objective medical evidence and other relevant documented evidence . . .” the ALJ made 24 some general observations about the evidence before delving into the specifics. The second such 25 observation was that “the claimant’s treatment has been conservative in nature.” AR 24. The ALJ’s 26 broad characterization of his treatment as “conservative,” without elaboration, neither adds to nor 27 detracts from her opinion. See Tommasetti, 533 F.3d at 1038 (noting that alleged errors are not 28 1 reversible when it is apparent that they are “inconsequential to the ultimate nondisability 2 determination.”). That statement does not undermine the litany of independent evidence (medical 3 and non-medical) the ALJ identified in support of her conclusion about Plaintiff’s functional 4 limitations. 5 3. Daily Activities 6 7 Finally, Plaintiff takes issue with the ALJ’s statement that “[d]espite his subjective 8 symptoms and difficulties, the claimant is able to take care of his personal hygiene and grooming, 9 prepare simple meals, shop in stores, pay bills, count change, use public transportation, ride in cars 10 with others, attend church on Sunday.” Br. at 24 (citing AR 25). Plaintiff relies on Orn and Molina, 11 noting that daily activities can only form the basis for an adverse credibility determination when 12 the activities contradict the claimant’s other testimony or where the activities demonstrate 13 transferable work skills. Br. at 24 (citing Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007); Molina 14 15 v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012), superseded by regulation on other grounds). 16 In Orn, the ALJ rejected the plaintiff’s testimony because his daily activities of “read[ing], 17 watch[ing] television and color[ing] in coloring books” “indicate that he is more functional than 18 alleged.” Orn, 495 F.3d at 639. The Ninth Circuit found that the ALJ improperly rejected the 19 plaintiff’s testimony on that basis because the daily activities described did not contradict the 20 plaintiff’s other testimony, nor did those activities meet the threshold for transferable work skills. 21 Id. The Ninth Circuit found that they were “activities that are so undemanding that they cannot be 22 23 said to bear a meaningful relationship to the activities of the workplace.” Id. Simply put, the daily 24 activities Plaintiff engaged in here, as described by the ALJ and quoted above, are quite distinct 25 from reading, watching TV, and coloring. Thus Orn has no factually applicability here. 26 The activities Plaintiff engaged in here are closer to the facts of Molina, where the Ninth 27 Circuit found that the ALJ properly concluded that the plaintiff’s alleged social limitations were 28 1 inconsistent with her daily activities of “walking her grandchildren to and from school, attending 2 church, shopping, and taking walks,” activities which the court found were transferable to a work 3 setting. See Molina, 674 F.3d at 1113. Plaintiff offers no reason why this Court should reach a 4 different conclusion here. 5 Finally, Plaintiff relies on Burch, in which the Ninth Circuit stated that “if a claimant 6 7 engages in numerous daily activities involving skills that could be transferred to the workplace, the 8 ALJ may discredit the claimant’s allegations upon making specific findings relating to those 9 activities.” Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (emphasis added by Plaintiff). 10 Plaintiff contends that the “the ALJ did not make any specific findings how or whether [his daily] 11 activities transfer to a work setting.” Br. at 24. Indeed, the ALJ did not offer such an explanation. 12 However, the “specific findings” requirement Plaintiff underscores do not appear to be as 13 demanding as Plaintiff suggests. In Burch, the only “specific findings” the ALJ made regarding 14 15 the plaintiff’s daily activities were that those activities “suggest that she is quite functional. She is 16 able to care for her own personal needs, cook, clean and shop. She interacts with her nephew and 17 her boyfriend. She is able to manage her own finances and those of her nephew.” Burch, 400 F.3d 18 at 681. The ALJ in Burch did not explain how those activities transfered to a work setting, yet the 19 Ninth Circuit nevertheless affirmed the ALJ’s decision. Id. Similarly here, the ALJ’s reasoning is 20 not undermined by her lack of an explanation as to how Plaintiff’s daily activities transfer to a work 21 setting. 22 23 Plaintiff offers no reason why this Court should reach a different conclusion than the Burch 24 court reached on comparable facts. Notably, the impairments at issue in Burch were quite similar 25 to those at issue here, including asthma, back pain, weakness and depression (albeit in addition to 26 breast cancer). Id. The plaintiff’s daily activities described in Burch were also substantially similar 27 to those Plaintiff engaged in here. Id. And, much like in Burch, “although the evidence of 28 1 [Plaintiff’s] daily activities may also admit of an interpretation more favorable to [Plaintiff],” the 2 ALJ’s interpretation here was rational. Id. Moreover, the ALJ’s decision was supported by other 3 substantial evidence in the record including Plaintiff’s medical history as described above, not just 4 his daily activities. See Burch, 400 F.3d at 680–81 (“Contrary to Burch’s argument, the ALJ did 5 not solely rely on the minimal objective evidence and Burch’s daily activities in discrediting her 6 7 testimony . . . the ALJ also considered the objective medical findings in discounting Burch’s 8 testimony.”). The ALJ’s findings regarding Plaintiff’s daily activities do not undermine her 9 conclusions regarding his functional limitations, which were supported by substantial evidence. 10 VIII. Conclusion and Order 11 Based on the foregoing, the Court finds that the ALJ’s decision that Plaintiff is not disabled 12 is supported by substantial evidence in the record as a whole and is based on proper legal standards. 13 Accordingly, Plaintiff’s appeal from the administrative decision of the Commissioner of Social 14 15 Security is denied. The Clerk of Court is directed to enter judgment in favor of Defendant Andrew 16 Saul, Commissioner of Social Security, and against Plaintiff Michael Hammonds. 17 18 IT IS SO ORDERED. 19 Dated: October 14, 2020 /s/ Gary S. Austin 20 UNITED STATES MAGISTRATE JUDGE
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