Anthony Wayne Combs v. Carolyn W. Colvin

Filing 29

MEMORANDUM OPINION by Magistrate Judge Alka Sagar. (See document for complete details) (afe)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 ANTHONY WAYNE COMBS 12 Plaintiff, 13 14 15 v. NANCY A. BERRYHILL,1 Acting Commissioner of Social Security, 16 Defendant. 17 ) No. CV 16-02580-AS ) ) MEMORANDUM OPINION ) ) ) ) ) ) ) ) ) 18 PROCEEDINGS 19 20 On 21 December 16, 2016, Plaintiff Anthony Wayne Combs 22 (“Plaintiff”) filed a Complaint seeking review of the Commissioner’s 23 denial of Plaintiff’s application for Social Security Disability 24 Insurance benefits (“DIB”) and Supplemental Security Income benefits 25 (“SSI”) for lack of disability. (Docket Entry No. 1). On May 3, 26 27 28 1 Nancy A. Berryhill is now the Acting Commissioner of Social Security and is substituted for Acting Commissioner Carolyn W. Colvin in this case. See Fed. R. Civ. P. 25(d). 1 1 2017, Defendant filed an Answer to the Complaint along with the 2 Certified Administrative Record (“AR”). 3 The 4 Magistrate Judge. 5 Joint Stipulation (“Joint Stip.”) on August 2, 2017, setting forth 6 their respective positions on Plaintiff’s claims. 7 26). parties have consented to (Docket Entry Nos. 21-22). proceed before (Docket Entry Nos. 13, 27). a United States The parties filed a (Docket Entry No. 8 For 9 10 the reasons discussed below, the decision of the Administrative Law Judge is AFFIRMED. 11 SUMMARY OF ADMINISTRATIVE DECISION 12 13 On 14 September 9, 2013, Plaintiff, formerly employed as a 15 cashier, driller, convenient store porter, and retail store stocker, 16 filed 17 October 20, 2012. 18 filed 19 beginning 20 seizures, and blindness in the right eye. 21 2015, 22 hearing at which he heard testimony from Plaintiff and vocational 23 expert (“VE”) Ruth Arnush. 24 denied Plaintiff’s application. an an application for alleging (AR 270, 236). application on DIB, October Administrative for 20, Law Judge beginning on On September 16, 2013, Plaintiff SSI, 2012 disability similarly due to (“ALJ”) (AR 48-67). alleging traumatic brain (238-246). Dante M. disability injury, On March 13, Alegre held a On August 5, 2015, the ALJ (AR 33-41). 25 The ALJ applied the five-step process in evaluating Plaintiff’s 26 27 case. At step one, the ALJ found that Plaintiff meets the insured 28 status requirements of the Social Security Act through September 6, 2 1 2014 and has not engaged in substantial gainful 2 October 20, 2012, the alleged onset date. 3 the ALJ found that Plaintiff had the following severe impairments: 4 seizure disorder and right eye blindness (Id.). 5 ALJ determined that Plaintiff’s impairments did not meet or equal a 6 Listing found in 20 C.F.R. Part 404, Subpart P, Appendix 1. 7 37). (AR 36). activity since At step two, At step three, the (AR 36- 8 9 The ALJ then found that Plaintiff had the residual functional 10 capacity (“RFC”)2 to perform a full range of work at all exertional 11 levels 12 [plaintiff] 13 [plaintiff] but with the should following climb machinery and 14 unprotected heights; and the [plaintiff] has monocular vision.” (AR 15 37). working ropes, with or “the the avoid ladders, limitations: scaffolds; should not non-exertional moving 16 17 In arriving at his conclusion, the ALJ found that Plaintiff’s 18 medically determinable impairments could reasonably be expected to 19 cause some of the alleged symptoms; however, Plaintiff’s statements 20 concerning the intensity, persistence and limiting effects of these 21 symptoms are not entirely credible. (AR 38). 22 23 At step four, the ALJ determined that Plaintiff was capable of 24 performing past relevant work as a commercial cleaner and stock 25 clerk, as this work does not require the performance of work-related 26 27 28 2 A Residual Functional Capacity is what a claimant can still do despite existing exertional and nonexertional limitations. See 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). 3 1 activities precluded by Plaintiff’s RFC. 2 the ALJ found that, in the alternative and considering Plaintiff’s 3 age, 4 existed 5 Plaintiff could also perform. education, in work experience, significant numbers and in (AR 39). RFC, the there At step five, were national jobs that economy that (AR 40). 6 STANDARD OF REVIEW 7 8 9 This court reviews the Administration’s decision to determine 10 if it is free of legal error and supported by substantial evidence. 11 See Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th 12 Cir. 2012). 13 but less than a preponderance. 14 1009 (9th Cir. 2014). 15 supports a finding, “a court must consider the record as a whole, 16 weighing both evidence that supports and evidence that detracts from 17 the [Commissioner’s] conclusion.” 18 1033, 1035 (9th Cir. 2001). 19 reasonably 20 conclusion, [a court] may not substitute [its] judgment for that of 21 the ALJ.” 22 2006). “Substantial evidence” is more than a mere scintilla, support Garrison v. Colvin, 759 F.3d 995, To determine whether substantial evidence Aukland v. Massanari, 257 F.3d As a result, “[i]f the evidence can either affirming or reversing the ALJ’s Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 23 PLAINTIFF’S CONTENTIONS 24 25 26 Plaintiff 27 record by 28 evidence; not (2) alleges that: obtaining the ALJ (1) the treating failed to 4 or ALJ failed examining properly to develop source consider the opinion Plaintiff’s 1 seizure disorder under the Listings; and (3) the ALJ’s credibility 2 determination 3 Stip. at 2). is not supported by substantial evidence. (Joint 4 DISCUSSION 5 6 After 7 reviewing the record, the Court finds that the 8 Commissioner’s findings are supported by substantial evidence and 9 are free from material legal error.3 10 11 A. The ALJ Did Not Fail To Fulfill His Duty To Fully And Fairly Develop The Record 12 13 Plaintiff claims that the ALJ failed to fulfill his duty to 14 15 fully 16 Specifically, Plaintiff argues that the ALJ should have obtained 17 physical 18 19 20 21 and fairly and develop cognitive treating source. (Id.). the record. opinion evidence (Joint from Stip. an at 13). examining or Defendant counters that the record was fully developed and that substantial evidence throughout the record supports the ALJ’s RFC finding as well as his finding that Plaintiff’s condition could be controlled if he was compliant with his treatment regimen. (Joint Stip. at 16, 18). The Court agrees. 22 23 Although Plaintiff bears the burden of proving disability, an 24 ALJ has an affirmative duty to assist the claimant in developing the 25 3 26 27 28 The harmless error rule applies to the review of administrative decisions regarding disability. See McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (an ALJ’s decision will not be reversed for errors that are harmless). 5 1 record at every step of the sequential evaluation process. 2 Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir.2001); see also 3 Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir.2005). 4 to develop the record is triggered, however, only “when there is 5 ambiguous evidence or when the record is inadequate to allow for 6 proper evaluation of the evidence.” Mayes v. Massanari, 276 F.3d 7 453, 459–60 (9th Cir.2001). The ALJ's duty 8 Here, the ALJ did not state, and the record does not reflect, 9 10 11 that the medical evidence was ambiguous or otherwise inadequate to allow for proper evaluation of the evidence. See AR 36-40. To the contrary, the record included significant medical evidence as well 12 as the opinions of two State agency medical consultants who found 13 Plaintiff was not disabled, explaining that, “[a]lthough you have a 14 history of seizures, you are able to perform work that does not 15 involve a great deal of climbing, balancing or e3xposure to 16 workplace hazards. Although you suffered a brain injury, that 17 condition is not considered severe. Your vision allows you to do 18 19 20 21 normal daily activities. There is no evidence of any other disabling medical conditions.” (AR 124, 133, 145, 155). With regard to the consultants’ opinions, Plaintiff contends that “there were only nonexamining physician opinions in the record, and they occurred prior 22 to seizure frequency in March 2014 . . .[t]here were simply a number 23 of 24 consultative 25 [Plaintiff’s] treating sources, was harmful error.” 26 14). 27 access to medical records dated after their reviews (conducted on 28 November records these doctors examination, did not or see failure . . to . failure recontact to get any a of (Joint Stip. at While the non-examining consultant physicians did not have 4, 2013 and January 16, 6 2014), Plaintiff fails to 1 articulate what new and impactful information these records provide, 2 how they demonstrate that his condition significantly worsened, or 3 how 4 Plaintiff has failed to show that the inclusion of these records 5 would 6 medical conditions. their inclusion have would altered the have impacted reviewing the physicians’ physicians’ assessment review. of his 7 Moreover, 8 9 10 11 as discussed specifically addressed become frequent more more Plaintiff’s since the thoroughly claims below, that non-examining his the seizures physicians’ ALJ had review, stating “the record documents the [plaintiff’s] reports of varying degrees of frequency to his doctors. Additionally … his seizures 12 coincided with lab results indicating low levels of his anti-seizure 13 medications, which is suggestive of noncompliance . . . ” (AR 38). 14 15 With regard to the other significant medical evidence in the 16 record, Plaintiff contends that the ALJ is unqualified to “play 17 doctor” 18 19 20 21 (Joint and “turn Stip. interpretation the 21). of raw medical However, “raw the data.” data ALJ The into did ALJ functional not rely on cited to the terms.” his own medical personnel’s interpretation of Plaintiff’s records in support of his decision. For example, in determining that Plaintiff’s seizures 22 coincided with lab results indicating low levels of anti-seizure 23 medications, which is suggestive of non-compliance, the ALJ cited to 24 medical reports stating “most recent dilantin drug level was May 14, 25 2014 26 which seem to be under control when comply with dilantin meds 100 mg 27 po id and most recent level was 6.4mcg/ml”. (low) 6.4mcg/ml” and that Plaintiff 28 7 “developed SZ (AR 463, 465). disorder Thus, the Court finds that the ALJ did not fail to fulfill his 1 2 duty to fully and fairly develop the record. Contrary to 3 Plaintiff’s assertion, the record was fully developed and included 4 substantial evidence to support the ALJ’s RFC finding as well as his 5 finding that Plaintiff’s condition could be controlled if he was 6 compliant with his treatment regimen. 7 8 B. The ALJ Properly Considered Plaintiff’s Seizure Disorder Under 9 The Listings 10 11 Plaintiff 12 13 asserts that the ALJ improperly evaluated whether Plaintiff’s impairment met or medically equaled the criteria of any medical listing. (Joint Stip. at 22). Specifically, Plaintiff 14 claims that the ALJ offered “no comparison of evidence as to why 15 Plaintiff did not meeting Listing 11.02.”4 (Id.). Defendant 16 17 18 19 20 21 22 23 24 25 26 27 28 4 At the time of the ALJ’s decision, the Listing of Impairments stated: “In epilepsy, regardless of etiology, degree of impairment will be determined according to type, frequency, duration, and sequelae of seizures. At least one detailed description of a typical seizure is required. Such description includes the presence or absence of aura, tongue bites, sphincter control, injuries associated with the attack, and postictal phenomena. The reporting physician should indicate the extent to which description of seizures reflects his own observations and the source of ancillary information. Testimony of persons other than the claimant is essential for description of type and frequency of seizures if professional observation is not available. Under 11.02 and 11.03, the criteria can be applied only if the impairment persists despite the fact that the individual is following prescribed antiepileptic treatment. Adherence to prescribed antiepileptic therapy can ordinarily be determined from objective clinical findings in the report of the physician currently providing treatment for epilepsy.” See 8 1 counters that, because Plaintiff failed to adhere to his prescribed 2 treatment, the ALJ reasonably found that he did not meet all the 3 requirements 4 disabled. of Listing 11.02, (Joint Stip. at 24). and was therefore not per se The Court agrees. 5 6 A 7 unless 8 9 10 11 claimant's it impairment “persists does despite not the meet fact the that epilepsy the listing individual is following prescribed anticonvulsive treatment.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 11.00A. a claimant is adhering An ALJ can ordinarily determine whether to his or her prescribed therapy objective clinical findings in the treating physician's report. from Id. An ALJ cannot allow a claim under the epilepsy listing without a 12 record of anticonvulsant blood levels. Social Security Ruling 87–6 13 (1987). The ALJ must evaluate blood drug levels along with all 14 other evidence to determine the extent of the claimant's compliance 15 with treatment. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 11.00A. 16 17 Here, the ALJ evaluated Plaintiff’s medical record as well as 18 19 20 21 evidence regarding blood suggested non-compliance. drug levels (AR 38). and concluded that they The ALJ stated that Plaintiff’s seizures “coincided with lab results indicating low levels of his anti-seizure medications, which is suggestive of noncompliance. . .” 22 (Id.). 23 seizure episodes “coincided with low levels of the claimant’s anti- 24 seizure medications or drug use.” 25 indicate that a level between 10 and 20 is an effective medication 26 level, 27 system. 28 seizure and his Dilantin level was recorded at “0.1.” (AR 488, 493). The ALJ later noted that certain of Plaintiff’s alleged but that Plaintiff (Id.). consistently (see e.g., AR 493). Indeed, medical records had lower levels in his In March 2014, Plaintiff suffered a 9 1 The medical record 2 patient 3 Plaintiff reported to the Emergency Department following three back 4 to back seizures. 5 (AR 472-474). not take indicates Dilantin.” that (AR Plaintiff’s 488). sister Again, in “reports May 2014, Lab results indicated a Dilantin level of 6.3. 6 Thus, 7 8 9 10 because significant evidence indicates that Plaintiff failed to adhere to his prescribed treatment, the ALJ reasonably found that he did not meet all the requirements of Listing 11.02, and was not per se disabled. 11 C. The ALJ’s Credibility Determination Is Supported By Substantial 12 Evidence 13 14 Plaintiff contends that the ALJ’s credibility determination is 15 not supported by substantial evidence because Plaintiff’s testimony 16 directly comports with the medical evidence of record and no 17 examining 18 19 20 21 or treating physician endorsed Plaintiff’s functional limitations or the assertion that Plaintiff underwent “conservative treatment.” (Joint Stip. at 30). Defendant counters that there is evidence throughout the record that Plaintiff’s physicians measured his anti-seizure medication at sub-therapeutic levels and, thus, the 22 ALJ reasonably found Plaintiff’s subjective symptom allegations not 23 fully credible. (Joint Stip. at 31). The Court agrees. 24 25 The ALJ rejected Plaintiff's testimony as to the disabling 26 nature of his limitations in part due to his non-compliance with 27 treatment. 28 prescribed (AR 38-39). course of Failure treatment 10 to seek is a treatment relevant or follow a credibility 1 consideration. 2 see also id. at 638 (“Our case law is clear that if a claimant 3 complains about disabling pain but fails to seek treatment, or fails 4 to follow prescribed treatment, for the pain, an ALJ may use such 5 failure 6 exaggerated.”). as Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007); a basis for finding the complaint unjustified or 7 The 8 9 10 11 ALJ further noted that Plaintiff’s treatment was conservative and that he failed to seek more aggressive treatment. (AR 38). indicates Plaintiff financial claims struggles, that to the the record point “overwhelming[ly] where he required referrals from emergency departments after treatments of seizures 12 due to lack of insurance.” (Joint Stip. at 30). financial an However, even if 13 constraints were obstacle to treatment, Plaintiff's 14 non-compliance support the ALJ's credibility determination. The 15 record indicates that a social worker stated that she “talked with 16 the patient [] about coverage, but when he leaves the hospital he 17 refuses to answer or return calls,” and that “[t]hey have also given 18 19 20 21 him numerous business cards and brochures.” (AR 498). A separate medical report indicates that when Plaintiff was asked if he has “attempted to get Medi-Cal or Arrowcare, he responded ‘No.’” (AR 505). Thus, it was reasonable for the ALJ to consider Plaintiff’s 22 failure 23 medication, and conservative care when evaluating his credibility. to seek treatment, non compliance with prescribed 24 25 The Ninth Circuit has made clear that when the evidence is 26 subject to more than one interpretation, the ALJ's interpretation is 27 entitled to deference as long as it is reasonable. See, e.g., Thomas 28 11 1 v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (“Where the evidence 2 is susceptible to more than one rational interpretation, one of 3 which supports the ALJ's decision, the ALJ's conclusion must be 4 upheld.”) 5 of the evidence to be reasonable. 6 are free of legal error and will not be disturbed. On this record, the Court finds the ALJ's interpretation Accordingly, the ALJ's findings 7 CONCLUSION 8 9 10 11 For the foregoing reasons, the decision of the Commissioner is AFFIRMED. 12 13 LET JUDGMENT BE ENTERED ACCORDINGLY. 14 15 Dated: August 29, 2017 16 17 18 19 _____________/s/______________ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 12

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