Dennis S. Heber v. Carolyn W. Colvin

Filing 21

MEMORANDUM OPINION AND ORDER by Magistrate Judge Douglas F. McCormick. For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. (twdb)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 DENNIS S. HEBER, Plaintiff, 12 v. 13 14 15 Case No. CV 16-01449-DFM MEMORANDUM OPINION AND ORDER NANCY A. BERRYHILL, Acting Commissioner of Social Security,1 16 Defendant. 17 18 Dennis S. Heber (“Plaintiff”) appeals from the Social Security 19 20 Commissioner’s final decision denying his applications for disability insurance 21 benefits and supplemental security income. For the reasons discussed below, 22 the Commissioner’s decision is affirmed and this matter is dismissed with 23 prejudice. 24 /// 25 /// 26 On January 21, 2017, Berryhill became the Acting Social Security Commissioner. She is automatically substituted as Defendant under Federal Rule of Civil Procedure 25(d). 27 28 1 1 I. 2 BACKGROUND Plaintiff applied for supplemental security income and disability 3 4 insurance benefits on December 10, 2012, alleging disability beginning on 5 March 25, 2008. Administrative Record (“AR”) 56-58, 143-58. After his 6 applications were denied, AR 45-89, 92-97, he requested a hearing before an 7 Administrative Law Judge (“ALJ”), AR 98-99. A hearing was held on May 8 12, 2015, at which Plaintiff, who was represented by counsel, testified, as did a 9 vocational expert (“VE”). AR 31-44. In a written decision issued on May 29, 2015, the ALJ denied Plaintiff’s 10 11 claims. AR 14-30. The ALJ found that Plaintiff had the severe impairment of 12 “mental retardation to borderline,” but it did not meet or equal an impairment 13 in the Listing of Impairments (“Listing”) set forth at 20 C.F.R., Part 404, 14 Subpart P, Appendix 1. AR 19-20. The ALJ found that Plaintiff retained a 15 residual functional capacity to perform a full range of work at all exertional 16 levels, including heavy work, with the following non-exertional limitations: he 17 could understand and remember tasks; sustain concentration and persistence; 18 socially interact with the general public, co-workers, and supervisors; and 19 adapt to workplace changes frequently enough to perform unskilled, low stress 20 jobs that require simple instructions. AR 22. Based on the VE’s testimony, the 21 ALJ found that Plaintiff was unable to perform his past relevant work as a food 22 server and warehouse worker, but he could work as a hospital cleaner, poultry 23 hanger, and bag loader. AR 25. Therefore, the ALJ concluded that Plaintiff 24 was not disabled. AR 26. Plaintiff requested review of the ALJ’s decision. AR 11-13. On January 25 26 20, 2016, the Appeals Council denied review. AR 1-7. This action followed. 27 /// 28 /// 2 1 II. 2 DISCUSSION The parties dispute whether (1) the ALJ erred in concluding at step two 3 4 of the sequential evaluation process that Plaintiff did not have a severe physical 5 impairment and (2) the ALJ erred in concluding at step three that Plaintiff’s 6 impairments did not meet the requirements of a Listing. See Dkt. 20, Joint 7 Stipulation (“JS”) at 4, 10-11, 13-17.2 8 A. 9 10 ALJ’s Step-Two Finding 1. Hearing Testimony and ALJ Opinion At the hearing, Plaintiff testified that he had hernia surgery that “went 11 well, but after a while it starts to get weak in the area.” AR 36-37. His ability to 12 sit was “so-so” because his lower back started to hurt if he sat for 3 or 4 hours. 13 AR 36. He had “not much” of an ability to lift things and experienced low- 14 back pain near the hernia repair site when he lifted items weighing more than 15 50 pounds. Id. Plaintiff worked as a kitchen aide for 3 or 4 hours every day, 16 but was “not sure” if he could do the job full time, because his back started to 17 hurt after “too long on [his] feet.” AR 38. He could stand or walk for at least 4 18 out of 8 hours, and “maybe” could stand or walk for a longer period. AR 39. 19 His roommate’s mother did the household chores, and his roommate did the 20 cooking. AR 37. To pass time during the day, Plaintiff went to the mall. Id. 21 With respect to Plaintiff’s alleged physical limitations, the ALJ found: 22 [Plaintiff’s] medically determinable impairment of enlarged 23 prostate and crooked spinal cord, allergic rhinitis, esophageal 24 reflux, 25 hyperlipidemia, as alleged by [Plaintiff] and evidenced by the 26 27 28 osteoarthritis, inguinal hernia, dysphagia, and The Joint Stipulation presents only one disputed issue. See JS at 4. Because it consists of two distinct arguments, the Court addresses each argument separately. 2 3 1 record did not cause more than minimal limitation in [his] ability 2 to perform basic work activities. The medical evidence of record 3 reveals that [Plaintiff] walks daily for one to two hours. [He] has 4 no problems with personal care. [Plaintiff] has described daily 5 activities, which are not limited to the extent one would expect, 6 given the complaints of disabling symptoms and limitations. 7 [Plaintiff] reported that he does household chores such as cleaning 8 and laundry and all basic household chores unassisted; runs 9 errands and goes shopping alone; is able to cook meals without 10 assistance; goes outside every day by walking, riding a bicycle, and 11 using public transportation; shop in stores; pays and manages 12 money and bills; watches television with no indication of 13 difficult[y] following a program; interacts with friends and 14 neighbors; and does magic tricks. Moreover, the record shows that 15 treatment has been essentially routine and conservative in nature 16 as [Plaintiff] merely received follow-up care for intermittent 17 physical complaints. Additionally, the objective findings do not 18 support anything [other] than mild abnormalities. Accordingly, the 19 undersigned finds [Plaintiff’s] physical impairments are nonsevere. 20 AR 19-20 (citations omitted). 21 2. 22 Plaintiff argues that the ALJ’s finding that he does not have a severe 23 physical impairment is not supported by substantial evidence. JS at 5. The 24 Court disagrees. 25 Analysis “In step two of the disability determination, an ALJ must determine 26 whether the claimant has a medically severe impairment or combination of 27 impairments.” Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 725 (9th 28 Cir. 2011). The existence of a severe impairment is demonstrated when the 4 1 evidence establishes that an impairment has more than a minimal effect on an 2 individual’s ability to perform basic work activities. Webb v. Barnhart, 433 3 F.3d 683, 686-87 (9th Cir. 2005); Smolen v. Chater, 80 F.3d 1273, 1290 (9th 4 Cir. 1996); 20 C.F.R. §§ 404.1520(c), 404.1521(a), 416.920(c), 416.921(a).3 The 5 ability to do basic work activities is defined as “the abilities and aptitudes 6 necessary to do most jobs,” which include physical functions such as walking, 7 standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling. 20 8 C.F.R. §§ 404.1521(b), 416.921(b). The inquiry at this stage is “a de minimis 9 screening device to dispose of groundless claims.” Smolen, 80 F.3d at 1290 10 (citing Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987)). An impairment is not 11 severe if it is only a slight abnormality with “no more than a minimal effect on 12 an individual’s ability to work.” SSR 85-28, 1985 WL 56856, at *3 (1985); 13 Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988). A “finding of no 14 disability at step two” may be affirmed where there is a “total absence of 15 objective evidence of severe medical impairment.” Webb, 433 F.3d at 688 16 (reversing a step two determination “because there was not substantial 17 evidence to show that [the claimant’s] claim was ‘groundless’”). 18 The ALJ’s determination that Plaintiff’s alleged physical impairments 19 were not severe is supported by substantial evidence. In October 2008, Plaintiff 20 reported that he could cook meals and perform all basic household chores 21 unassisted, run errands, go shopping, and independently perform all self-care 22 activities. AR 272. In April 2013, Plaintiff reported that he walked for 1 to 2 23 hours a day. AR 287. In an April 16, 2013 function report, Plaintiff wrote that 24 25 26 27 28 The Court notes that 20 C.F.R. §§ 404.1521 and 416.921 have been renumbered in a revision effective March 27, 2017, as 20 C.F.R. §§ 404.1522 and 416.922, with no substantive changes. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844-01, 2017 WL 168819, at *5860 (Jan. 18, 2017). 3 5 1 after working part-time for 3 or 4 hours, he would visit the mall. AR 236. He 2 also wrote that he had “no problem with personal care,” including dressing, 3 bathing, shaving, feeding himself, or using the toilet. Id. He cleaned his house 4 and did laundry once a week and went outside every day. AR 237-38. He 5 could “go out alone,” walk, ride a bicycle, use public transportation, and shop 6 in stores. AR 238. Plaintiff testified at the hearing that he could stand or walk 7 for 4 hours a day, “maybe” more, and he could sit for 3 or 4 hours at a time. 8 AR 36-39. None of this evidence suggests that Plaintiff’s ability to walk, stand, 9 sit, or lift was significantly limited. 10 Plaintiff argues that the ALJ inaccurately concluded that Plaintiff had 11 only “mild [physical] abnormalities.” JS at 8. Plaintiff points to (1) a 1999 x- 12 ray showing slight impingement on the left neural foramen for the C5 nerve by 13 posterior osteophytes, with no other significant abnormalities, AR 432; (2) a 14 December 2010 lumbar spine x-ray revealing “mild degeneration and 15 listhesis,” AR 415, 512; and (3) a September 2013 right shoulder and cervical 16 spine x-ray showing “mild glenotumeral and arconioclevicular osteoarthritis,” 17 AR 666. JS at 8. The September 2013 x-ray showed “advanced degenerative 18 changes at C4/C5 and C5/C6.” JS at 8; AR 667. But Plaintiff’s September 19 2013 physical examination was benign and his doctor prescribed only home 20 exercises. See AR 719-20. Furthermore, regardless of the x-ray results, the 21 record as a whole reflects that Plaintiff’s actual abilities to perform basic work 22 activities were not significantly limited. To the extent Plaintiff implies that the 23 Court must remand because the ALJ did not specifically discuss the x-rays or 24 acknowledge that the 2013 x-rays showed degeneration not present 14 years 25 earlier, see JS at 8, the ALJ was not required to discuss every piece of evidence 26 submitted. See Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003). 27 Plaintiff also criticizes the ALJ for relying on evidence related to 28 Plaintiff’s daily activities, because his participation in “basic human function” 6 1 is not determinative of disability. JS at 9 (citing Magallanes v. Bowen, 881 2 F.2d 747, 756 (9th Cir. 1989)). As previously discussed, the record reflects that 3 Plaintiff was capable of far more than “basic human function.” The ALJ 4 properly took into account Plaintiff’s level of activity. See Magallanes, 881 5 F.2d at 756. Plaintiff argues that the ALJ wrongly concluded that Plaintiff pursued 6 7 nothing more than conservative treatment for his physical impairments. See JS 8 at 10. According to Plaintiff, non-conservative treatment options did not exist. 9 See id. Plaintiff’s argument at least partially misses the ALJ’s point. The ALJ 10 noted that the treatment was “routine and conservative in nature as [Plaintiff] 11 merely received follow-up care for intermittent physical complaints.” AR 20; 12 see also AR 24 (“[T]he record reveals relatively infrequent trips to the doctor 13 for the allegedly disabling symptoms.”). In other words, the ALJ concluded 14 that Plaintiff’s treatment history and his efforts to obtain treatment did not 15 support a finding that Plaintiff’s physical impairments were severe. The record 16 contains substantial evidence to support that conclusion, demonstrating that 17 not only were Plaintiff’s doctor visits infrequent but that he took pain 18 medications only briefly before and after his hernia surgery in 2011. AR 339- 19 40, 469. The ALJ properly took Plaintiff’s “essentially . . . conservative” 20 treatment into account. See Parra v. Astrue, 481 F.3d 742, 750–51 (9th Cir. 21 2007) (noting that “evidence of ‘conservative treatment’ is sufficient to 22 discount a claimant’s testimony regarding severity of an impairment”); see also 23 Moncada v. Chater, 60 F.3d 521, 524 (9th Cir.1995) (allegations of disabling 24 pain can be discredited by evidence of infrequent use of pain medication). 25 B. 26 27 28 ALJ’s Step Three Finding Listing 12.05C4 covers intellectual disabilities and provides in relevant 4 Social Security Regulations regarding the criteria for evaluating mental 7 1 part: Intellectual disability refers to significantly subaverage 2 3 general 4 functioning initially manifested during the developmental period; 5 i.e., the evidence demonstrates or supports onset of the 6 impairment before age 22. functioning with deficits in adaptive The required level of severity for this disorder is met when 7 8 intellectual the requirements in A, B, C, or D are satisfied. .... 9 C. 10 A valid verbal, performance, or full scale IQ of 60 11 through 70 and a physical or other mental impairment imposing 12 an additional and significant work-related limitation of function. 13 14 15 20 C.F.R. § 404, subpt. P, app. 1 § 12.05.5 The ALJ found that Plaintiff’s impairments did not meet Listing 12.05C for the following reasons: 16 In terms of the requirements in paragraph C, they are not 17 met because [Plaintiff] does not have a valid verbal, performance, 18 19 20 21 22 23 24 25 26 27 28 disorders were amended effective January 17, 2017. Because the ALJ’s decision is the final decision of the Commissioner, the Court applies the version of Listing 12.05 in effect at the time of the ALJ’s decision. See Revised Medical Criteria for Evaluating Mental Disorders, 81 Fed. Reg. 66138, 2016 WL 5341732, *66138 & n.1 (Sept. 26, 2016) (“We expect that Federal courts will review our final decisions using the rules that were in effect at the time we issued the decisions.”); see, e.g., Hooks v. Colvin, No. 16-2888, 2017 WL 622215, at *7 (N.D. Ill. Feb. 15, 2017) (assessing claimant’s “argument under Listing 12.05(C) as it was written at the time of the ALJ’s decision”); Johnson v. Berryhill, No. 15-4666, 2017 WL 1135129, at *2 (D.S.C. Mar. 27, 2017) (analyzing “case as if Listing 12.05C were still in effect”). Plaintiff does not contend that he satisfied the requirements of paragraphs A, B, or D. 5 8 1 or full scale IQ of 60 through 70 and a physical or other mental 2 impairment imposing an additional and significant work-related 3 limitation of function. The Wechsler Adult Intelligence Scale, 4 Third Edition reveals a verbal I.Q. score of 68, performance I.Q. 5 score of 77, and a full scale I.Q. score of 77, all of which fall 6 between the mildly mentally retarded and borderline range of 7 current intellectual functioning for [Plaintiff’] age group. However, 8 the [examining psychologist] noted that [Plaintiff’s] behavioral 9 functioning appears to be significantly higher than the I.Q. 10 estimates would suggest as [Plaintiff] is able to perform activities 11 of daily living without assistance and without difficulty. 12 13 AR 20-21.6 At step three of the disability determination, the ALJ determines 14 whether a claimant has an impairment or combination of impairments that 15 meets or equals a listed impairment. See Tackett v. Apfel, 180 F.3d 1094, 1099 16 (9th Cir. 1999); 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). The 17 claimant has the initial burden of proving that he has an impairment that meets 18 or equals a Listing. Sullivan v. Zebley, 493 U.S. 521, 530-33 (1990); see Burch 19 v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005) (“An ALJ is not required to 20 discuss the combined effects of a claimant’s impairments or compare them to 21 any listing in an equivalency determination, unless the claimant presents 22 evidence in an effort to establish equivalence.”). To “meet” a listed 23 impairment, a claimant must establish that he satisfies each characteristic of 24 the listed impairment in question. Tackett, 180 F.3d at 1099. To “equal” a 25 26 27 28 The ALJ mistakenly wrote that Plaintiff was assigned a full scale IQ score of 77. See AR 20, 23 (citing AR 274). However, the ALJ correctly indicated that Plaintiff received a verbal IQ score of 68, which meets paragraph C’s IQ requirement. 6 9 1 listed impairment, a claimant “must establish symptoms, signs, and laboratory 2 findings ‘at least equal in severity and duration’ to the characteristics of a 3 relevant listed impairment, or, if a claimant’s impairment is not listed, then to 4 the listed impairment ‘most like’ the claimant’s impairment.” Id. (citation 5 omitted). 6 Plaintiff contends that the medical record established that he met or 7 equaled Listing 12.05C because he “obtained a verbal IQ score of 68[] and a 8 full scale IQ of 70” and he had the severe “physical impairment of 9 osteoarthritis and cervical degenerative disc disease.” JS at 11, 18.7 However, 10 as explained in Section III.A.2, supra, the ALJ’s determination that Plaintiff 11 did not have a severe physical impairment is supported by substantial 12 evidence. Thus, substantial evidence necessarily supports the ALJ’s conclusion 13 that Plaintiff’s physical impairments did not impose an additional and 14 significant work-related limitation of function. The Court finds no error in the 15 ALJ’s determination that Plaintiff’s impairments did not meet Listing 12.05C. 16 III. 17 CONCLUSION 18 19 For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. 20 21 Dated: May 11, 2017 ______________________________ DOUGLAS F. McCORMICK United States Magistrate Judge 22 23 24 25 26 27 28 Plaintiff does not argue that he had another mental impairment imposing an additional and significant work-related limitation of function. 7 10

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