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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ANTHONY WAYNE COMBS
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Plaintiff,
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v.
NANCY A. BERRYHILL,1
Acting Commissioner of Social
Security,

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Defendant.

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) No. CV 16-02580-AS
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) MEMORANDUM OPINION
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PROCEEDINGS

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On

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December

16,

2016,

Plaintiff

Anthony

Wayne

Combs

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(“Plaintiff”) filed a Complaint seeking review of the Commissioner’s

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denial of Plaintiff’s application for Social Security Disability

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Insurance benefits (“DIB”) and Supplemental Security Income benefits

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(“SSI”) for lack of disability.

(Docket Entry No. 1).

On May 3,

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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

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2017, Defendant filed an Answer to the Complaint along with the

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Certified Administrative Record (“AR”).

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The

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Magistrate Judge.

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Joint Stipulation (“Joint Stip.”) on August 2, 2017, setting forth

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their respective positions on Plaintiff’s claims.

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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.

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For

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the

reasons

discussed

below,

the

decision

of

the

Administrative Law Judge is AFFIRMED.

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SUMMARY OF ADMINISTRATIVE DECISION

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On

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September

9,

2013,

Plaintiff,

formerly

employed

as

a

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cashier, driller, convenient store porter, and retail store stocker,

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filed

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October 20, 2012.

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filed

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beginning

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seizures, and blindness in the right eye.

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2015,

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hearing at which he heard testimony from Plaintiff and vocational

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expert (“VE”) Ruth Arnush.

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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).

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The ALJ applied the five-step process in evaluating Plaintiff’s

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case.

At step one, the ALJ found that Plaintiff meets the insured

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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.

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the ALJ found that Plaintiff had the following severe impairments:

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seizure disorder and right eye blindness (Id.).

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ALJ determined that Plaintiff’s impairments did not meet or equal a

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Listing found in 20 C.F.R. Part 404, Subpart P, Appendix 1.

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37).

(AR 36).

activity

since

At step two,

At step three, the

(AR 36-

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The ALJ then found that Plaintiff had the residual functional

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capacity (“RFC”)2 to perform a full range of work at all exertional

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levels

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[plaintiff]

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[plaintiff]

but

with

the

should

following
climb

machinery

and

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unprotected heights; and the [plaintiff] has monocular vision.”

(AR

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37).

working

ropes,

with

or

“the
the

avoid

ladders,

limitations:
scaffolds;

should

not

non-exertional

moving

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In arriving at his conclusion, the ALJ found that Plaintiff’s

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medically determinable impairments could reasonably be expected to

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cause some of the alleged symptoms; however, Plaintiff’s statements

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concerning the intensity, persistence and limiting effects of these

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symptoms are not entirely credible.

(AR 38).

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At step four, the ALJ determined that Plaintiff was capable of

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performing past relevant work as a commercial cleaner and stock

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clerk, as this work does not require the performance of work-related

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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).
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activities precluded by Plaintiff’s RFC.

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the ALJ found that, in the alternative and considering Plaintiff’s

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age,

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existed

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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).

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STANDARD OF REVIEW

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This court reviews the Administration’s decision to determine

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if it is free of legal error and supported by substantial evidence.

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See Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th

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Cir. 2012).

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but less than a preponderance.

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1009 (9th Cir. 2014).

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supports a finding, “a court must consider the record as a whole,

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weighing both evidence that supports and evidence that detracts from

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the [Commissioner’s] conclusion.”

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1033, 1035 (9th Cir. 2001).

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reasonably

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conclusion, [a court] may not substitute [its] judgment for that of

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the ALJ.”

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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.

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PLAINTIFF’S CONTENTIONS

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Plaintiff

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record

by

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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

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After

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reviewing

the

record,

the

Court

finds

that

the

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Commissioner’s findings are supported by substantial evidence and

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are free from material legal error.3

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A.

The ALJ Did Not Fail To Fulfill His Duty To Fully And Fairly
Develop The Record

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Plaintiff claims that the ALJ failed to fulfill his duty to

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fully

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Specifically, Plaintiff argues that the ALJ should have obtained

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physical

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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.

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Although Plaintiff bears the burden of proving disability, an
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ALJ has an affirmative duty to assist the claimant in developing the
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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).
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1

record

at

every

step

of

the

sequential

evaluation

process.

2

Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir.2001); see also

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Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir.2005).

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to develop the record is triggered, however, only “when there is

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ambiguous evidence or when the record is inadequate to allow for

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proper evaluation of the evidence.” Mayes v. Massanari, 276 F.3d

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453, 459–60 (9th Cir.2001).

The ALJ's duty

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Here, the ALJ did not state, and the record does not reflect,

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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
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as the opinions of two State agency medical consultants who found
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Plaintiff was not disabled, explaining that, “[a]lthough you have a
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history of seizures, you are able to perform work that does not
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involve

a

great

deal

of

climbing,

balancing

or

e3xposure

to

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workplace

hazards.

Although

you

suffered

a

brain

injury,

that

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condition is not considered severe. Your vision allows you to do
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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

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to seizure frequency in March 2014 . . .[t]here were simply a number

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of

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consultative

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[Plaintiff’s] treating sources, was harmful error.”

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14).

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access to medical records dated after their reviews (conducted on

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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

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articulate what new and impactful information these records provide,

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how they demonstrate that his condition significantly worsened, or

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how

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Plaintiff has failed to show that the inclusion of these records

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would

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medical conditions.

their

inclusion

have

would

altered

the

have

impacted

reviewing

the

physicians’

physicians’

assessment

review.

of

his

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Moreover,

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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

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coincided with lab results indicating low levels of his anti-seizure
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medications, which is suggestive of noncompliance . . . ” (AR 38).
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With regard to the other significant medical evidence in the
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record, Plaintiff contends that the ALJ is unqualified to “play
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doctor”
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(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

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coincided with lab results indicating low levels of anti-seizure

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medications, which is suggestive of non-compliance, the ALJ cited to

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medical reports stating “most recent dilantin drug level was May 14,

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2014

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which seem to be under control when comply with dilantin meds 100 mg

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po id and most recent level was 6.4mcg/ml”.

(low)

6.4mcg/ml”

and

that

Plaintiff

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“developed

SZ

(AR 463, 465).

disorder

Thus, the Court finds that the ALJ did not fail to fulfill his

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duty

to

fully

and

fairly

develop

the

record.

Contrary

to

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Plaintiff’s assertion, the record was fully developed and included

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substantial evidence to support the ALJ’s RFC finding as well as his

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finding that Plaintiff’s condition could be controlled if he was

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compliant with his treatment regimen.

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B.

The ALJ Properly Considered Plaintiff’s Seizure Disorder Under

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The Listings

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Plaintiff

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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

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claims that the ALJ offered “no comparison of evidence as to why
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Plaintiff

did

not

meeting

Listing

11.02.”4

(Id.).

Defendant

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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
https://secure.ssa.gov/poms.nsf/lnx/0434131013.
8

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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.

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6

A

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unless

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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
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record of anticonvulsant blood levels. Social Security Ruling 87–6
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(1987).

The ALJ must evaluate blood drug levels along with all

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other evidence to determine the extent of the claimant's compliance
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with treatment. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 11.00A.
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Here, the ALJ evaluated Plaintiff’s medical record as well as
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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. . .”

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(Id.).

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seizure episodes “coincided with low levels of the claimant’s anti-

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seizure medications or drug use.”

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indicate that a level between 10 and 20 is an effective medication

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level,

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system.

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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

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1

The

medical

record

2

patient

3

Plaintiff reported to the Emergency Department following three back

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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.

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Thus,

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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.

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C.

The ALJ’s Credibility Determination Is Supported By Substantial

12

Evidence
13
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Plaintiff contends that the ALJ’s credibility determination is
15

not supported by substantial evidence because Plaintiff’s testimony
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directly

comports

with

the

medical

evidence

of

record

and

no

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examining
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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

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ALJ reasonably found Plaintiff’s subjective symptom allegations not

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fully credible.

(Joint Stip. at 31).

The Court agrees.

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The

ALJ

rejected

Plaintiff's

testimony

as

to

the

disabling

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nature of his limitations in part due to his non-compliance with

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treatment.

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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

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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

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exaggerated.”).

as

Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007);

a

basis

for

finding

the

complaint

unjustified

or

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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
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the patient [] about coverage, but when he leaves the hospital he
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refuses to answer or return calls,” and that “[t]hey have also given
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20
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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

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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

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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

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CONCLUSION

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For the foregoing reasons, the decision of the Commissioner is
AFFIRMED.

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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Dated: August 29, 2017

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_____________/s/______________
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

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