Dale Mongeau v. Andrew Saul

Filing 22

MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY by Magistrate Judge John E. McDermott. IT IS HEREBY ORDERED that Judgment be entered affirming the decision of the Commissioner of Social Security and dismissing this case with prejudice. (es)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 DALE MONGEAU, Plaintiff, 13 14 v. ANDREW M. SAUL, 15 Commissioner of Social Security, 16 Defendant. 17 18 19 ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 20-02911-JEM MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY PROCEEDINGS On March 27, 2020, Dale Mongeau (“Plaintiff” or “Claimant”) filed a complaint seeking 20 review of the decision by the Commissioner of Social Security (“Commissioner”) denying 21 Plaintiff’s application for Social Security Disability Insurance Benefits. (Dkt. 1.) The 22 Commissioner filed an Answer on September 23, 2020. (Dkt. 16.) On January 26, 2021, the 23 parties filed a Joint Stipulation (“JS”). (Dkt. 21.) The matter is now ready for decision. 24 Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed bef ore this 25 Magistrate Judge. After reviewing the pleadings, transcripts, and administrative record (“AR”), 26 the Court concludes that the Commissioner’s decision must be affirmed and this case 27 dismissed with prejudice. 28 1 BACKGROUND 2 Plaintiff is a 58 year-old male who applied for Social Security Disability Insurance 3 benefits on June 20, 2016, alleging disability beginning November 19, 2014. (AR 25.) The ALJ 4 determined that Plaintiff did not engage in substantial gainful activity during the period from his 5 alleged onset date of November 19, 2014, through his date last insured of December 31, 2016. 6 (AR 27.) 7 Plaintiff’s claim was denied initially on August 22, 2016 and on reconsideration on 8 October 28, 2016. (AR 25.) Plaintiff filed a timely request for hearing, which was held before 9 Administrative Law Judge (“ALJ”) Donna M. Montano on June 26, 2018, and a supplem ental 10 hearing was also held on January 11, 2019, both in Pasadena, California. (AR 25.) Plaintiff 11 appeared and testified at both hearings and was represented by counsel. (AR 25.) In January 12 2019, vocational expert (“VE”) John J. Komar, Ph.D., testified via teleconference call. (AR 25.) 13 The ALJ issued an unfavorable decision on February 27, 2019. (AR 25-36.) The 14 Appeals Council denied review on January 29, 2020. (AR 1-3.) DISPUTED ISSUES 15 16 As reflected in the Joint Stipulation, Plaintiff only raises the following disputed issue as 17 ground for reversal and remand: 18 19 20 21 1. Whether the ALJ properly considered Plaintiff’s symptom and pain limitation testimony about his limited ability to stand or walk for prolonged periods. STANDARD OF REVIEW Under 42 U.S.C. § 405(g), this Court reviews the ALJ’s decision to determine whether 22 the ALJ’s findings are supported by substantial evidence and free of legal error. Smolen v. 23 Chater, 80 F.3d 1273 , 1279 (9th Cir. 1996); see also DeLorm e v. Sullivan, 924 F.2d 841, 846 24 (9th Cir. 1991) (ALJ’s disability determination must be supported by substantial evidence and 25 based on the proper legal standards). 26 Substantial evidence means “‘more than a mere scintilla,’ but less than a 27 preponderance.” Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting Richardson v. 28 Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is “such relevant evidence as a 2 1 reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 2 401 (internal quotation marks and citation omitted). 3 This Court must review the record as a whole and consider adverse as well as 4 supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). W here 5 evidence is susceptible to more than one rational interpretation, the ALJ’s decision m ust be 6 upheld. Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). 7 “However, a reviewing court must consider the entire record as a whole and may not affirm 8 simply by isolating a ‘specific quantum of supporting evidence.’” Robbins, 466 F.3d at 882 9 (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)); see also Orn v . Astrue, 495 10 F.3d 625, 630 (9th Cir. 2007). THE SEQUENTIAL EVALUATION 11 12 The Social Security Act defines disability as the “inability to engage in any substantial 13 gainful activity by reason of any medically determinable physical or mental impairment which 14 can be expected to result in death or . . . can be expected to last for a continuous period of not 15 less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The Commissioner has established a five16 step sequential process to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 17 416.920. 18 The first step is to determine whether the claimant is presently engaging in substantial 19 gainful activity. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). If the claimant is engaging 20 in substantial gainful activity, disability benefits will be denied. Bowen v. Yuckert, 482 U.S. 137, 21 140 (1987). Second, the ALJ must determine whether the claimant has a severe impairment or 22 combination of impairments. Parra, 481 F.3d at 746. An impairment is not severe if it does not 23 significantly limit the claimant’s ability to work. Smolen, 80 F.3d at 1290. Third, the ALJ must 24 determine whether the impairment is listed, or equivalent to an impairment listed, in 20 C.F.R. 25 Pt. 404, Subpt. P, Appendix I of the regulations. Parra, 481 F.3d at 746. If the impairment 26 meets or equals one of the listed impairments, the claimant is presumptively disabled. Bowen, 27 482 U.S. at 141. Fourth, the ALJ must determine whether the impairment prevents the 28 claimant from doing past relevant work. Pinto v. Massanari, 249 F.3d 840, 844-45 (9th Cir. 3 1 2001). Before making the step four determination, the ALJ first must determine the claimant’s 2 residual functional capacity (“RFC”). 20 C.F.R. § 416.920(e). The RFC is “the most [one] can 3 still do despite [his or her] limitations” and represents an assessment “based on all the relevant 4 evidence.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). T he RFC must consider all of the 5 claimant’s impairments, including those that are not severe. 20 C.F.R. §§ 416.920(e), 6 416.945(a)(2); Social Security Ruling (“SSR”) 96-8p. 7 If the claimant cannot perform his or her past relevant work or has no past relevant work, 8 the ALJ proceeds to the fifth step and must determine whether the impairment prevents the 9 claimant from performing any other substantial gainful activity. Moore v. Apfel, 216 F.3d 864, 10 869 (9th Cir. 2000). The claimant bears the burden of proving steps one through four, 11 consistent with the general rule that at all times the burden is on the claimant to establish his or 12 her entitlement to benefits. Parra, 481 F.3d at 746. Once this prima facie case is established 13 by the claimant, the burden shifts to the Commissioner to show that the claimant may perform 14 other gainful activity. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). T o support 15 a finding that a claimant is not disabled at step five, the Commissioner must provide evidence 16 demonstrating that other work exists in significant numbers in the national economy that the 17 claimant can do, given his or her RFC, age, education, and work experience. 20 C.F.R. 18 § 416.912(g). If the Commissioner cannot meet this burden, then the claimant is disabled and 19 entitled to benefits. Id. 20 21 THE ALJ DECISION In this case, the ALJ determined at step one of the sequential process that Plaintiff did 22 not engage in substantial gainful activity during the period from his alleged onset date of 23 November 19, 2014, through his date last insured of December 31, 2016. (AR 27.) 24 At step two, the ALJ determined that through the date last insured Plaintiff had the 25 following medically determinable severe impairments: degenerative disc disease of the cervical 26 and lumbosacral spine and hypertension. (AR 28-29.) 27 28 4 1 At step three, the ALJ determined that through the date last insured Plaintiff did not have 2 an impairment or combination of impairments that met or medically equaled the severity of one 3 of the listed impairments. (AR 29-30.) 4 The ALJ then found that through the date last insured Plaintiff had the RFC to perform a 5 range of light work as defined in 20 CFR § 404.1567(b) with the following limitations: 6 Claimant could lift and/or carry twenty pounds occasionally, ten pounds 7 frequently, stand and/or walk six hours and sit six hours in an eight-hour workday. 8 Claimant could occasionally climb ramps, stairs, ladders, ropes and scaffolds, 9 balance, stoop, kneel, crouch and crawl. 10 (AR 30-34.) In determining the above RFC, the ALJ made a determination that Plaintiff’s 11 subjective symptom allegations were “not entirely consistent” with the medical evidence and 12 other evidence of record dated through the date last insured. (AR 33.) 13 At step four, the ALJ found that through the date last insured Plaintiff was unable to 14 perform any past relevant work as a heavy truck driver. (AR 34.) The ALJ, however, also 15 found at step five that through the date last insured, considering Claimant’s age, education, 16 work experience, and RFC, there were jobs that existed in significant numbers in the national 17 economy that Claimant could have performed, including the jobs of collator operator, routing 18 clerk, and order caller. (AR 34-35.) 19 Consequently, the ALJ found that Claimant was not disabled, within the meaning of the 20 Social Security Act, at any time from November 19, 2014, the alleged onset date, through 21 December 31, 2016, the date last insured. (AR 35.) 22 23 DISCUSSION Plaintiff contends that the ALJ erred in discounting Plaintiff’s subjective symptom 24 allegations. The Court disagrees. The ALJ properly discounted Plaintiff’s subjective symptom 25 allegations for clear and convincing reasons supported by substantial evidence. The ALJ’s 26 RFC is supported by substantial evidence. The ALJ decision must be affirmed. 27 28 5 1 A. Relevant Federal Law 2 The ALJ’s RFC is not a medical determination but an administrative finding or legal 3 decision reserved to the Commissioner based on consideration of all the relevant evidence, 4 including medical evidence, lay witnesses, and subjective symptoms. See SSR 96-5p; 20 5 C.F.R. § 1527(e). In determining a claimant’s RFC, an ALJ must consider all relevant evidence 6 in the record, including medical records, lay evidence, and the effects of symptoms, including 7 pain reasonably attributable to the medical condition. Robbins, 466 F.3d at 883. 8 The test for deciding whether to accept a claimant’s subjective symptom testimony turns 9 on whether the claimant produces medical evidence of an impairment that reasonably could be 10 expected to produce the pain or other symptoms alleged. Bunnell v. Sullivan, 947 F.2d 341, 11 346 (9th Cir. 1991); see also Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998); Sm olen, 80 12 F.3d at 1281-82 esp. n.2. The Commissioner may not discredit a claimant’s testimony on the 13 severity of symptoms merely because they are unsupported by objective medical evidence. 14 Reddick, 157 F.3d at 722; Bunnell, 947 F.2d at 343, 345. If the ALJ finds the claimant’s pain 15 testimony not credible, the ALJ “must specifically make findings which support this conclusion.” 16 Bunnell, 947 F.2d at 345. The ALJ must set forth “findings sufficiently specific to permit the 17 court to conclude that the ALJ did not arbitrarily discredit claimant’s testimony.” Thomas v. 18 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002); see also Rollins v . Massanari, 261 F.3d 853, 857 19 (9th Cir. 2001); Bunnell, 947 F.2d at 345-46. Unless there is ev idence of malingering, the ALJ 20 can reject the claimant’s testimony about the severity of a claimant’s symptoms only by offering 21 “specific, clear and convincing reasons for doing so.” Smolen, 80 F.3d at 1283-84; see also 22 Reddick, 157 F.3d at 722. The ALJ must identify what testimony is not credible and what 23 evidence discredits the testimony. Reddick, 157 F.3d at 722; Smolen, 80 F.3d at 1284. 24 B. Analysis 25 Plaintiff has a history of neck and back pain due to an alleged work-related injury that 26 occurred on November 19, 2014. (AR 28.) He alleges he has been unable to work ever since 27 and can lift no more than fifteen pounds due to extreme low back pain. (AR 33.) He alleges he 28 has difficulty bending over and cannot sit longer than 20 minutes. (AR 33.) The ALJ did find 6 1 that Plaintiff had the medically determinable severe impairments of degenerative disc disease 2 of the cervical spine and lumbosacral spine and hypertension, through the date last insured of 3 December 31, 2016. (AR 28, 27.) Notwithstanding these impairments, the ALJ assessed 4 Plaintiff with a reduced range of light work RFC (AR 30) and concluded that Plaintiff was not 5 disabled from the alleged onset date of November 19, 2014, through the date last insured of 6 December 31, 2016. (AR 35.) 7 In determining Plaintiff’s RFC, the ALJ determined that Plaintiff’s medically determinable 8 impairments reasonably could be expected to cause some of the alleged symptoms. (AR 33.) 9 The ALJ, however, also found that Plaintiff’s statements regarding the intensity, persistence, 10 and limiting effects of these symptoms are “not entirely consistent” with the medical evidence 11 and other evidence in the record through the date last insured. (AR 33.) Because the ALJ did 12 not make any finding of malingering, he was required to provide clear and convincing reasons 13 supported by substantial evidence for discounting Plaintiff’s subjective symptom allegations. 14 Smolen, 80 F.3d at 1283-84; Tommasetti v. Astrue, 533 F.3d 1035, 1039-40 (9th Cir. 2008). 15 The ALJ did so. 16 17 1. Inconsistency With Medical Evidence First, the ALJ found that Plaintiff’s subjective symptom allegations are inconsistent with 18 the objective medical evidence. (AR 33, 34.) An ALJ is permitted to consider whether there is 19 a lack of medical evidence to corroborate a claimant’s alleged symptoms so long as it is not the 20 only reason for discounting a claimant’s credibility. Burch v. Barnhart, 400 F.3d 676, 680-81 21 (9th Cir. 2005). Here, regarding Plaintiff’s lumbar spine impairment, X-rays in January 2015 22 revealed severe degenerative disc disease with no evidence of spondylolisthesis. (AR 28.) In 23 February 2015, an MRI scan revealed spondylosis. (AR 28.) X-rays in August 2016 revealed 24 moderate disc disease as did a November 2016 MRI, with no evidence of contact or 25 compromise of the nerve roots. (AR 28.) Workers’ compensation records contain clinical 26 findings of reduced range of motion, occasional straight leg raising, and mildly decreased 27 sensation. (AR 28.) The ALJ noted that the radiographic studies of record show no evidence 28 of nerve root impingement, compression, or compromise through the date last insured. (AR 7 1 29-30.) There also was no MRI evidence of stenosis during the relevant period. (AR 28.) 2 There was no evidence of an inability to ambulate effectively, muscle atrophy, or decreased 3 motor strength. (AR 30.) There was a December 2018 MRI scan showing increased severity 4 in the lumbar spine, but the scan was two years after Plaintiff’s date last insured and 5 inconsistent with the studies in the period at issue. (AR 28.) 6 Regarding Plaintiff’s cervical spine impairment, Plaintiff did not complain or seek 7 treatment for his neck impairments during the relevant period. (AR 33.) All of the medical 8 records from Plaintiff’s Workers’ Compensation medical doctors and his general medical 9 providers show no evidence of neck impairment until after the date last insured. (AR 33.) A 10 December 2018 MRI scan two years after the date last insured revealed multilevel 11 degenerative disc disease of Plaintiff’s cervical spine. (SR 29.) So did a January 2018 scan. 12 (AR 29.) The ALJ found that Plaintiff’s cervical spine impairment relates back to before the 13 date last insured but not to the degree demonstrated in either of the January or December 14 2018 scans. (AR 29, 33.) The ALJ found that the evidence of record does not support the 15 degree of neck pain alleged at the hearings. (AR 33.) 16 The medical opinion testimony supports the ALJ’s light work RFC. At the initial 17 determination level, DDS reviewing physician Dr. Chan opined Plaintiff could perform a range 18 of light exertion work, lift and/or carry 20 pounds occasionally, and stand, walk, or sit six hours 19 in an eight-hour work day. (AR 30.) On reconsideration, another DDS reviewing physician, Dr. 20 M. Bayar, offered a similar reduced range light work RFC assessment. (AR 30.) The ALJ gave 21 great weight to the opinions of these State agency medical consultants. (AR 31.) Medical 22 expert Dr. Dorothy Leong also opined that from the alleged onset date through the date last 23 insured Plaintiff could perform a range of light work, including lifting and/or carrying 20 pounds. 24 (AR 31.) The ALJ gave significant weight to Dr. Leong’s assessment. (AR 32.) 25 Dr. Joe Y. B. Lee, Plaintiff’s primary treating orthopedist for his Workers’ Compensation 26 claim, consistently opined from February 2015 to February 2016 that Plaintiff could lift 20 27 pounds. (AR 30-31.) From March through June 2017, Dr. Lee opined Plaintiff could lift 25 28 pounds. (AR 31.) In November and December 2016 and March 2017, Dr. Lee opined Plaintif f 8 1 could only lift 15 pounds. (AR 31.) The ALJ did not give significant weight to these latter 2 opinions because in some instances they were after the date last insured, they also were 3 inconsistent with subsequent opinions that Plaintiff could lift 25 pounds, and opinions about 4 lifting only 15 pounds would not meet durational requirements. (AR 31.) Additionally, Dr. Bayar 5 and Dr. Leong all opined that Plaintiff could lift 20 pounds for the entire relevant period. The 6 medical evidence supports the ALJ’s reduced range light work RFC for the relevant period. 7 Plaintiff asserts that Dr. Lee documented abnormal findings of his back at every 8 appointment. (JS 13:1-2.) Dr. Lee’s records between January 15, 2015, through June 2016 9 did reveal a reduced back range of motion, positive straight leg tests on the left, and mildly 10 decreased sensation. (AR 28.) Dr. Lee, however, also noted in these same examinations that 11 Plaintiff was in no acute distress, had full (5/5) strength throughout his lower extremities, and 12 otherwise normal sensation throughout. (AR 449, 460, 477-78, 481, 495, 498, 563, 523, 537, 13 547, 554, 565.) Dr. Lee’s progress notes reveal positive straight leg tests and spasms but also 14 good strength and normal sensation. (AR 599, 629, 632, 635.) Most im portantly, despite the 15 abnormal findings, Dr. Lee consistently opined from January 2015 through October 2016 that 16 Plaintiff could lift 20-25 pounds, consistent with the ALJ’s light work RFC finding. (AR 30, 32, 17 450, 461, 478, 482, 489, 496, 499, 504, 524, 538, 548, 555, 565, 600, 636.) Plaintif f contends 18 he is unable to stand or walk for long periods of time, but Dr. Lee did not opine that Plaintif f had 19 any standing, walking, or sitting limitations. 20 The ALJ also considered the opinion of Dr. Jorge Galindo, Plaintiff’s primary care 21 physician. (AR 31.) In June 2018, Dr. Galindo opined Plaintif f could perform less than 22 sedentary work, lift and/carry only 10 pounds, stand/walk/sit only two hours in an eight-hour 23 work day, and would miss work more than three times a month. (AR 31.) The ALJ gave no 24 weight to Dr. Galindo’s opinion because it was well after the date last insured, there was no 25 evidence that he was relating his assessment back before the date last insured, and records of 26 Dr. Galindo and his colleagues show no complaints of neck or back pain and no clinical 27 findings relating to the neck or back. (AR 32.) 28 Plaintiff does not dispute the ALJ’s evaluation of the medical evidence. 9 2. 1 Conservative Treatment The second reason that the ALJ gave for rejecting Plaintiff’s subjective symptom 2 3 allegations is conservative treatment. An ALJ may consider conservative treatment in 4 evaluating a claimant’s subjective symptom allegations. Tommasetti, 533 F.3d at 1039. Here, 5 Plaintiff received physical therapy, chiropractic treatment, and acupuncture; he was prescribed 6 pain and anti-inflammatory medications and a TENS unit (AR 28). All of these are conservative 7 treatments. Dr. Lee recommended a series of epidural steroid injections, which are not 1 8 conservative treatment, but they were not approved because with no evidence of nerve root 9 compression or MRI evidence of stenosis, Plaintiff did not meet the criteria for such treatment. 10 (AR 28.) Plaintiff also was prescribed medication for his hypertension, and there is no evidence of 11 12 end-organ damage. (AR 29.) Impairments that can be controlled with medication are not 13 disabling. Warre v. Comm’r of Soc. Sec., 439 F.3d 1001, 1006 (9th Cir. 2006 ). *** 14 Plaintiff disputes the ALJ’s assessment of Plaintiff’s subjective symptom allegations but 15 16 it is the ALJ’s responsibility to resolve conflicts in the medical evidence and ambiguities in the 17 record. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). W here the ALJ’s 18 interpretation of the record is reasonable, as it is here, it should not be second-g uessed. 19 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). The ALJ discounted Plaintiff’s subjective symptom allegations for clear and convincing 20 21 reasons supported by substantial evidence. *** 22 The ALJ’s RFC is supported by substantial evidence. 23 *** 24 25 26 27 28 1 Garrison v. Colvin, 759 F.3d 995, 1015 n.20 (9th Cir. 2014) (“[W]e doubt that epidural steroid shots to the neck and back qualify as ‘conservative’ medical treatment.”). 10 1 The ALJ’s nondisability determination is supported by substantial evidence and free of 2 legal error. 3 ORDER 4 IT IS HEREBY ORDERED that Judgment be entered affirming the decision of the 5 Commissioner of Social Security and dismissing this case with prejudice. 6 7 8 DATED: February 18, 2021 9 /s/ John E. McDermott JOHN E. MCDERMOTT UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

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