(SS) Rodriguez v. Commissioner of Social Security

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOE SERAPIO RODRIGUEZ, Case No. 1:21-cv-00514-CDB 12 Plaintiff, ORDER DENYING PLAINTIFF’S SOCIAL SECURITY APPEAL 13 v. (Doc. 16) 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16

17 18 Joe Serapio Rodriguez (“Plaintiff”) seeks judicial review of a final decision of the 19 Commissioner of Social Security (“Commissioner” or “Defendant”) denying his application for 20 disability insurance benefits under the Social Security Act. (Doc. 1). The matter is currently 21 before the Court on the parties’ briefs, which were submitted without oral argument. (Docs. 16, 22 21, 22). For the reasons stated, Plaintiff’s appeal shall be denied.1 23 I. BACKGROUND 24 A. Introduction 25 On April 10, 2018, Plaintiff filed an application for disability insurance benefits pursuant 26

27 1 Both parties have consented to the jurisdiction of a magistrate judge and this action has been assigned to Magistrate Judge Christopher D. Baker for all purposes, in accordance with 28 28 U.S.C. § 636(c)(1). (Doc. 8). 1 to Title II of the Social Security Act (the “Act”), 42 U.S.C. § 401 et seq., alleging a period of 2 disability beginning on January 1, 2014. (Administrative Record (“AR”) 19, Docs. 11-1, 11-2). 3 Plaintiff was born on May 23, 1958, and was 55 years old on the alleged disability onset date. 4 See generally AR. Plaintiff claimed disability due to arthritis in his shoulder, knee, and lower 5 back. Id. at 188-194. Subsequently, Plaintiff alleges disability due to degenerative disc disease 6 and chronic back pain. Id. at 33. Plaintiff alleges the pain from his disability has prevented him 7 from working. Id. 8 B. Relevant Medical Evidence2 9 On April 15, 2014, Plaintiff called Dr. Bimalroy Narendra Shah’s office and reported he 10 had been experiencing lower back pain for two weeks. Id. at 291. An appointment was 11 scheduled for the next day. Id. On April 16, 2014, Dr. Shah reported Plaintiff had limited range 12 of motion and pain in his back and diagnosed him with a thoracic spine sprain. Id. at 290. Dr. 13 Shah ordered an x-ray of Plaintiff’s thoracic spine and advised rest, ice/heat and Tylenol. Id. 14 That same day, Plaintiff underwent an x-ray of his thoracic spine performed by Dr. Joseph 15 J. Lum. Id. at 289-90, 372-74. The x-ray found no thoracic vertebral body compression 16 fractures. Id. The x-ray notes there were “multilevel degenerative changes with his intervertebral 17 disc space narrowing and mild vertebral body spurring.” Id. In addition, the x-ray reported 18 visible degenerative changes of the cervical spine. Id. 19 On August 13, 2014, Plaintiff had another appointment with Dr. Shah. Id. at 288-89. 20 Plaintiff reported he felt tired following a camping trip. Id. at 288. The record indicates 21 Plaintiff’s back was not discussed in this appointment. Id. at 288-89. On February 24, 2015, 22 Plaintiff saw Dr. Shah for a third time. Id. at 286-87. Plaintiff complained of abdomen pain and 23 expressed an interest in restarting Prozac for his memory. Id. at 286. Dr. Shah restarted 24 medications for Plaintiff’s hypertension and major depression. Id. at 287. The record indicates 25 Plaintiff’s back was not discussed in this appointment. Id. at 286-87. On March 2, 2015, Plaintiff 26 saw Dr. Shah for a fourth time. Id. at 286. Plaintiff reported that his “[abdomen] pain has 27 2 Because the parties are familiar with the medical evidence, it is summarized here only to 28 the extent relevant to the contested issue. 1 completely resolved” and felt his back was “normal”. Id. From 2016 to March 2017, Plaintiff 2 had three more appointments with Dr. Shah. Id. at 280-81, 283-86. In one appointment, Plaintiff 3 reported upper back pain along with complaints of congestion, dry cough, and wheezing. Id. at 4 283. Dr. Shah diagnosed Plaintiff with an upper respiratory infection. Id. 5 On June 2, 2017, Plaintiff saw Dr. Shah complaining of low back pain. Id. at 275. Dr. 6 Shah diagnosed Plaintiff with chronic low back pain and advised him to rest, apply cold and heat 7 packs, and use analgesics and muscle relaxants. Id. That same day, Plaintiff underwent an x-ray 8 of his lumbosacral spine. Id. at 325. The x-ray found there was moderate to severe disc space 9 narrowing at Plaintiff’s L5-S1 with adjacent bony sclerosis and anterior spurring and mild disc 10 space narrowing at L4-L5. Id. at 326. On June 21, 2017, Dr. Shah noted Plaintiff was still having 11 chronic low back pain and prescribed him medicine for his back. Id. at 274. On October 13, 12 2017, Plaintiff saw Dr. Shah for memory issues. Id. at 269. In this appointment, Dr. Shah noted 13 Plaintiff’s “[chronic lower back pain] was somewhat better after stem cell injections in Mexico” 14 but the pain had returned. Id. 15 In April 2018, state agency medical consultants Drs. D. Tayloe, and Phaedra Caruso 16 evaluated Plaintiff’s medical record. Id. at 61-69. The consultants’ assessment noted “the only 17 abnormal finding during the period” was Plaintiff’s back, identifying it had been non-tender and 18 diagnosed with a thoracic sprain. Id. at 65. The consultants considered if Plaintiff possessed a 19 spine disorder but found there was insufficient evidence to evaluate the claim. See Id. at 66-67 20 (there is no indication that there is a medical opinion from any medical source). In June 2018, 21 state agency medical consultant Dr. F. Greene evaluated Plaintiff’s medical record on 22 reconsideration. Id. at 70-76. Dr. F. Greene determined the “evidence in file is not sufficient to 23 fully evaluate [Plaintiff’s] claim” and determined he was not disabled. Id. at 75. 24 C. Administrative Proceedings 25 The Commissioner denied Plaintiff’s application initially on May 3, 2018, and again on 26 reconsideration on June 12, 2018. Id. at 144-50, 153-58. On June 19, 2018, Plaintiff submitted a 27 written request for a hearing. Id. at 165-66. Plaintiff represented by counsel appeared and 28 testified at a video conference hearing held before Administrative Law Judge Shane McGovern 1 (the “ALJ”) on December 19, 2020. Id. at 39-62, 210-19. 2 D. Hearing Testimony 3 Plaintiff’s attorney testified Plaintiff was severely impaired due to thoracic and lumbar 4 degenerative disc disease. Id. at 33. Plaintiff testified in 2014 he began experiencing pain in his 5 back. Id. at 36, 46. Plaintiff worked as a handyman but alleges he wasn’t able to function due to 6 back pain. Id. at 38. Plaintiff claims he sought treatment for his back from January 2014 to 7 September 2015 and received an x-ray and physical therapy. Id. at 47. Plaintiff asserts his back 8 pain limited the time he could sit, stand, and drive a vehicle, and the pain prevented him from 9 lifting objects heavier than a gallon of milk. Id. at 48-49. 10 E. The ALJ’s Decision 11 On February 5, 2020, the ALJ issued a decision finding that Plaintiff was not disabled. Id. 12 at 18-33. The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. §§ 13 404.1520(a) and 416.920(a). Id. at 22. The ALJ found Plaintiff had met the Social Security Act’s 14 insured status requirement on September 30, 2015. Id. at 21. The ALJ determined Plaintiff did 15 not engage in substantial gainful activity since January 1, 2014, the alleged onset date (step one). 16 Id. 17 The ALJ held Plaintiff did not possess a severe impairment (step two). Id. at 21-23. The 18 ALJ found, that in April 2014, Plaintiff had sought treatment for lower back pain and had been 19 diagnosed with a thoracic spine sprain. Id. at 22. The ALJ noted Plaintiff’s subsequent treatment 20 records in 2014 and 2015, did not indicate he was experiencing any medical problems with his 21 back. Id. at 22-23. The ALJ considered the medical opinions of state agency medical 22 consultants. Id. at 23. Dr, D, Tayloe and Dr. Phaedra Caruso opined following a review of the 23 record that Plaintiff had no severe impairments. Id. at 23. Dr. F. Greene opined there was 24 insufficient evidence in the file to evaluate the claim. Id. The ALJ found “these opinions were 25 persuasive to support the finding that the [Plaintiff] had no severe impairments through his date 26 last insured as these opinions are consistent with the sparse treatment records during the relevant 27 period in question.” Id. 28 The ALJ determined the Plaintiff had “failed his burden of proof to establish a medically 1 determinable impairment prior to his date last insured, as there are no medical signs or laboratory 2 findings to substantiate the existence of a medically determinable impairment through the date 3 last insured.” Id. The ALJ thus concluded that Plaintiff was not under a disability within the 4 meaning of the Act, at any time from January 1, 2014, through September 30, 2015, pursuant to 5 (20 CFR 404.1520(c)). Id. 6 On February 12, 2020, the Appeals Council received a request for review of the ALJ’s 7 decision in this case. Id. at 11. The Appeals Council denied Plaintiff’s request for review on 8 August 21, 2020, making the ALJ’s decision the final decision of the Commissioner. Id. at 5-10. 9 Plaintiff filed this action on March 26, 2021, seeking judicial review of the denial of his 10 application for benefits. (Doc. 1). The Commissioner lodged the administrative record on 11 February 23, 2022. (Doc. 11). Plaintiff filed an opening brief on July 28, 2022. (Doc. 16). 12 Defendant filed an opposition on September 16, 2022. (Doc. 21). Plaintiff filed a reply to 13 Defendant’s opposition on October 3, 2022. (Doc. 22). The matter is deemed submitted on the 14 pleadings. 15 II. LEGAL STANDARD 16 A. The Disability Standard 17 Disability Insurance Benefits and Supplemental Security Income are available for every 18 eligible individual who is “disabled.” 42 U.S.C. §§ 402(d)(1)(B)(ii), and 1381(a). An individual 19 is “disabled” if unable to “engage in any substantial gainful activity by reason of any medically 20 determinable physical or mental impairment …”3 Bowen v. Yuckert, 482 U.S. 137, 140 (1987) 21 (quoting identically worded provisions of 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A)). To 22 achieve uniformity in the decision-making process, the Social Security regulations set out a five- 23 step sequential evaluation process to be used in determining if an individual is disabled. See 20 24 C.F.R. § 404.1520; Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1194 (9th Cir. 2004). 25 Specifically, the ALJ is required to determine: 26 3 A “physical or mental impairment” is one resulting from anatomical, physiological, or 27 psychological abnormalities that are demonstrated by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. § 423(d)(3). 28 1 (1) whether a claimant engaged in substantial gainful activity during the period of 2 alleged disability, (2) whether the claimant had medically determinable “severe” impairments, (3) whether these impairments meet or are medically equivalent to one 3 of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1, (4) 4 whether the claimant retained the residual functional capacity (“RFC”) to perform past relevant work and (5) whether the claimant had the ability to perform other jobs 5 existing in significant numbers at the national and regional level.

6 Stout v. Comm’r. Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). The burden of proof is 7 on a claimant at steps one through four. Ford v. Saul, 950 F.3d 1141, 1148 (9th Cir. 2020) (citing 8 Valentine v. Comm’r of Soc. Sec. Admin, 574 F.3d 685, 689 (9th Cir. 2009)). The burden shifts to 9 the commissioner at step five to prove that Plaintiff can perform other work in the national 10 economy given the claimant’s RFC, age, education, and work experience. Garrison v. Colvin, 11 759 F.3d 995, 1011 (9th Cir. 2014). To do this, the ALJ can use either the Medical-Vocational 12 Guidelines or rely upon the testimony of a VE. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 13 (9th Cir. 2006); Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). “Throughout the five- 14 step evaluation, the ALJ ‘is responsible for determining credibility, resolving conflicts in medical 15 testimony and for resolving ambiguities.’” Ford, 950 F.3d at 1149 (quoting Andrews v. Shalala, 16 53 F.3d 1035, 1039 (9th Cir. 1995)). 17 B. Standard of Review 18 Congress has provided that an individual may obtain judicial review of any final decision 19 of the Commissioner of Social Security regarding entitlement to benefits. 42 U.S.C. § 405(g). In 20 determining whether to reverse an ALJ’s decision, a court reviews only those issues raised by the 21 party challenging the decision. Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). A court 22 may set aside the Commissioner’s denial of benefits when the ALJ’s findings are based on legal 23 error or are not supported by substantial evidence. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 24 1999). 25 “Substantial evidence is relevant evidence which, considering the record as a whole, a 26 reasonable person might accept as adequate to support a conclusion.” Thomas v. Barnhart, 278 27 F.3d 947, 954 (9th Cir. 2002) (quoting Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 28 1 1457 (9th Cir, 1995)). “[T]he threshold for such evidentiary sufficiency is not high.” Biestek v. 2 Berryhill, 139 S. Ct. 1148, 1154 (2019). Rather, “[s]ubstantial evidence means more than a 3 scintilla, but less than a preponderance; it is an extremely deferential standard.” Thomas v. 4 CalPortland Co., 993 F.3d 1204, 1208 (9th Cir. 2021) (internal quotations and citations omitted). 5 “[A] reviewing court must consider the entire record as a whole and may not affirm 6 simply by isolating a specific quantum of supporting evidence.” Hill v. Astrue, 698 F.3d 1153, 7 1159 (9th Cir. 2012) (internal quotations and citations omitted). “If the evidence ‘is susceptible 8 to more than one rational interpretation, it is the ALJ’s conclusion that must be upheld.’” Ford, 9 950 F.3d at 1154 (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). Even if the 10 ALJ has erred, the Court may not reverse the ALJ’s decision where the error is harmless. Stout, 11 454 F.3d at 1055-56. The burden of showing that an error is not harmless “normally falls upon 12 the party attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009). 13 III. ISSUES 14 Plaintiff’s pending motion argues that the ALJ erred by failing to properly evaluate the 15 severity and limiting effects of Plaintiff’s degenerative disc disease because the ALJ erroneously 16 concluded that the impairment was not “medically determinable.” (Doc. 16 at 4-6). 17 IV. DISCUSSION 18 At step two of the sequential evaluation, the ALJ must determine if the claimant has a 19 medically severe impairment or a combination of impairments. Smolen v. Chater, 80 F.3d 1273, 20 1289-90 (9th Cir. 1996) (citing Yuckert, 482 U.S. at 140-41); 20 C.F.R. §§ 404.1520(a)(4)(ii), 21 404.1521. An impairment is severe if it “significantly limits your physical or mental ability to do 22 basic work activities.” See 20 C.F.R. §§ 404.1520(c), 416.921. Basic work activities are “the 23 abilities and aptitudes necessary to do most jobs,” and those abilities and aptitudes include: (1) 24 physical functions such as walking, standing, sitting, lifting, and carrying; (2) capacities for 25 seeing, hearing and speaking; (3) understanding, carrying out, and remembering simple 26 instructions; (4) use of judgment; (5) responding appropriately to supervision, co-workers, and 27 usual work situations; and (6) dealing with changes in a routine work setting. 20 C.F.R. §§ 28 404.1521, 416.921. 1 It is Plaintiff’s burden to prove that these impairments or their symptoms affect her ability 2 to perform basic work activities. Edlund v. Massanari, 253 F.3d 1152, 1159-60 (9th Cir. 2001). 3 A severe impairment must meet the durational requirement under the Act, which means the 4 impairment has lasted, or is expected to last, 12 months or more. 20 C.F.R. § 404.1509. Plaintiff 5 also must establish disability before the date last insured. Flaten, 44 F.3d at 1458. Any 6 deterioration in a claimant’s condition after that date is irrelevant. Weetman v. Sullivan, 877 F.2d 7 20, 22 (9th Cir. 1989). 8 “Step two is merely a threshold determination meant to screen out weak claims.” Buck v. 9 Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017) (citing Yuckert, 482 U.S. at 146-47); see also 10 Webb v. Barnhart, 433 F.3d 83, 686 (9th Cir. 2005) (stating that step two is a “de minimis 11 screening device” to “dispose of groundless claims” (quoting Smolen, 80 F.3d at 1290). “Ample 12 authority cautions against a determination of nondisability at step two.” Ortiz v. Comm’r of Soc. 13 Sec., 425 F. App’x 653, 655 (9th Cir. 2011); see also Bowen, 482 U.S. at 153 (noting that step 14 two is intended to identify “claimants whose medical impairments are so slight that it is unlikely 15 they would be found to be disabled.”). 16 “An ALJ may find that a claimant lacks a medically severe impairment or combination of 17 impairments only when his [or her] conclusion is clearly established by medical evidence.” 18 Webb, 433 F.3d at 688.(quotations marks omitted); see Ortiz, 425 Fed. Appx. At 655 (the total 19 absence of objective evidence of a severe medical impairment would permit the court to affirm a 20 finding of no disability at step two); Cf. Ukolov v. Barnhart, 420 F.3d 1002, 1006 (9th Cir. 2005) 21 (the claimant failed to satisfy his step two burden where “none of the medical opinions included a 22 finding of impairment, a diagnosis, or objective test results”). 23 Plaintiff argues the ALJ’s conclusion “that ‘there are no medical signs’ to establish a 24 medically determinable impairment during the relevant period is [] erroneous.” (Doc. 16 at 6). 25 Plaintiff asserts he has a clinical finding that supports a medical determination of a severe medical 26 impairment. Id. Specifically, Plaintiff claims the April 2014 x-ray of his thoracic spine showed 27 “multilevel degenerative changes with intervertebral disc space narrowing and mild vertebral 28 body spurring” and degenerative changes of the cervical spine “support the medically 1 determinable impairment of degenerative disc disease.” Id. 2 Plaintiff’s claim that the April 2014 x-ray’s report of degenerative changes in his back 3 establishes evidence of a severe medically determinable impairment is unavailing. There is little, 4 if any, evidence that Plaintiff’s degenerative changes had an impact on his ability to work from 5 January 1, 2014, through September 30, 2015. Dr. Shah, Plaintiff’s treating physician did not 6 find he was limited as a result of this condition. On April 14, 2014, Dr. Shah noted Plaintiff was 7 experiencing back pain and diagnosed him with a thoracic spine sprain. (AR. 290). That same 8 day, an x-ray revealed “degenerative changes” in his back. Id. at 289-90, 372-74. Thereafter, 9 Plaintiff had three more appointments with Dr. Shah, from August 2014 to March 2015. Id. at 10 286-89. Dr. Shah, with the benefit of the April 2014 x-ray, did not diagnose Plaintiff with 11 degenerative disc disease. Instead, Dr. Shah noted Plaintiff’s back was back to “normal.” Id. at 12 286. 13 Likewise, state agency consultants, who had the benefit of Plaintiff’s April 2014 x-ray did 14 not find Plaintiff possessed a medical impairment in his spine. Instead, the consultants found 15 “[t]here is no indication that there is a medical opinion from any medical source” and that “the 16 evidence in file is not sufficient to evaluate [Plaintiff’s] claim.” Id. at 66-67. 17 In contrast, it appears Dr. Shah was capable of diagnosing Plaintiff with a medical 18 impairment if warranted. On June 2, 2017, Dr. Shah diagnosed Plaintiff with chronic low back 19 pain. Id. at 275. That same day, Plaintiff underwent an x-ray of his spine that found there was 20 moderate to severe disc space narrowing at Plaintiff’s L5-S1 with adjacent bony sclerosis and 21 anterior spurring and mild disc space narrowing at L4-L5. Id. at 326. Thereafter, Dr. Shah, with 22 the benefit of the June 2017 x-ray, confirmed and attempted to treat Plaintiff’s chronic low back 23 pain. Id. at 271-74. No doctor translated the degenerative changes identified in Plaintiff’s x-ray 24 into a functional limitation restricting, in any degree, Plaintiff’s ability to work within the 25 applicable limitation period. Absent such evidence, the ALJ did not err in failing to conclude at 26 step two that Plaintiff’s alleged back condition was a severe impairment. 27 V. CONCLUSION 28 A reviewing court should not substitute its assessment of the evidence for the ALJ. 1 | Tackett, 180 F.3d at 1098. On the contrary, a reviewing court must defer to an ALJ’s assessment 2 | as long as it is supported by substantial evidence. 42 U.S.C. § 405(g). After review, the Court 3 | finds that the ALJ’s decision is supported by substantial evidence and free of harmful legal error. 4 Accordingly, it is ORDERED: 5 1. Plaintiff's appeal of the decision of the Commissioner of Social Security (Doc. 16) is 6 DENIED. 7 2. The decision of the Commissioner of Social Security is AFFIRMED. 8 3. The Clerk of the Court is directed to enter judgment in favor of the Commissioner of 9 Social Security and close this case. 10 | IT IS SO ORDERED. | Dated: _May 31, 2023 | Word bo 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10