Brian Rhodes v. Andrew Saul

Filing 23

MEMORANDUM OPINION AND ORDER by Magistrate Judge Douglas F. McCormick. The decision is the Social Security Commission is affirmed and this case is dismissed with prejudice. (es)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
EASTERN DIVISION

BRIAN R.,

Case No. ED CV 19-02381-DFM

Plaintiff,

MEMORANDUM OPINION AND
ORDER

v.
ANDREW M. SAUL,
Commissioner of Social Security,
Defendant.

INTRODUCTION
Brian R. (“Plaintiff”) filed an application for Supplemental Security
Income on November 16, 2016, alleging disability beginning November 1,
2013. See Dkt. 16, Administrative Record (“AR”) 258-71.1 After being denied
benefits initially and on reconsideration, see AR 103, 115, Plaintiff requested
and received a hearing before an Administrative Law Judge (“ALJ”) on
November 28, 2018, see AR 41-91.
The Court partially redacts Plaintiff’s name in compliance with Federal
Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the
Committee on Court Administration and Case Management of the Judicial
Conference of the United States.
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Additionally, all citations to the AR are to the record pagination. All
other docket citations are to the CM/ECF pagination.

The ALJ issued an unfavorable decision on February 14, 2019. See AR
14-36. The ALJ followed the five-step sequential evaluation process for
determining whether an individual is disabled. At step one, the ALJ found that
Plaintiff had not engaged in substantial gainful activity since the application
date. See AR 19. At step two, the ALJ determined that Plaintiff had the severe
impairments of “cervical strain and degenerative disc disease/osteoarthritis of
the cervical spine with a history of cervical surgery and fusion in August 2017;
minimal osteoarthritis/mild degenerative disc disease of the lumbar spine;
minimal osteoarthritis of the thoracic spine; chronic migraine and occipital
neuralgia; osteoporosis; and rheumatoid arthritis.” AR 20. At step three, the
ALJ determined that Plaintiff did not have an impairment or combination of
impairments that met or medically equaled one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. See AR 22.
Before reaching step four, the ALJ determined that Plaintiff had the
residual functional capacity (“RFC”) to perform light work with some
limitations. See id. At step four, the ALJ found that Plaintiff could perform his
past relevant work as a real estate agent (DOT 250.357-018) as actually and
generally performed. See AR 28-29. Accordingly, the ALJ denied benefits. See
AR 29.
The Appeals Council denied review of the ALJ’s decision, which
became the final decision of the Commissioner. See AR 1-7. This action
followed. See Dkt. 1.
LEGAL STANDARD
A district court will set aside a denial of Social Security benefits only
when the ALJ decision is “based on legal error or not supported by substantial
evidence in the record.” Benton ex rel. Benton v. Barnhart, 331 F.3d 1030,
1035 (9th Cir. 2003). “Substantial evidence means more than a mere scintilla,
but less than a preponderance. It means such relevant evidence as a reasonable
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mind might accept as adequate to support a conclusion.” Desrosiers v. Sec’y of
Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988) (citations and
internal quotation marks omitted).
DISCUSSION
The parties dispute whether the ALJ erred in (1) determining Plaintiff’s
RFC and (2) evaluating his subjective symptom testimony. See Dkt. 21, Joint
Stipulation (“JS”) at 4.
RFC
Plaintiff argues that the ALJ failed to consider relevant and substantial
medical evidence of record in assessing his RFC. See JS at 4-10.
The RFC “is the most [a claimant] can still do despite [his or her]
limitations.” 20 C.F.R. § 416.945(a)(1). The ALJ must assess a claimant’s RFC
“based on all the relevant medical and other evidence.” Id. § 416.945(a)(3). It
is ultimately an administrative finding reserved to the Commissioner. See id.
§ 416.927(d)(2) (“[T]he final responsibility for deciding [a claimant’s RFC] is
reserved to the Commissioner.”). A district court must affirm the ALJ’s
determination of a claimant’s RFC if the ALJ applied “the proper legal
standard” and “his decision is supported by substantial evidence.” Bayliss v.
Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005).
Here, the ALJ found that Plaintiff had the RFC to perform “light work”
as defined in 20 C.F.R. § 416.967(b) except that he could:
frequently balance; occasionally climb ramps and stairs;
occasionally stoop, kneel, crouch and crawl; never climb ropes,
ladders or scaffolds; never be exposed to unprotected heights or
hazardous moving machinery parts; can work in a moderate noise
environment; and can have occasional exposure to lighting as
bright as direct sunlight.
AR 22.
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Plaintiff contends that the ALJ failed to consider the effect of his
migraine headaches and upper extremity impairments in determining his RFC.
See JS at 4-5. In so arguing, Plaintiff takes a shotgun approach of cataloging
several years of medical evidence (mostly unrelated to either headaches or his
upper extremities) without identifying what evidence the ALJ failed to
consider or how it would specifically necessitate a more restrictive RFC. When
interpreting the evidence and developing the record, “the ALJ does not need to
discuss every piece of evidence.” Howard ex rel. Wolff v. Barnhart, 341 F.3d
1006, 1012 (9th Cir. 2003) (citation and internal quotation marks omitted). At
best, Plaintiff has offered an alternative interpretation of the record, which is
an insufficient basis for reversal. See Thomas v. Barnhart, 278 F.3d 947, 954
(9th Cir. 2002) (“Where the evidence is susceptible to more than one rational
interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion
must be upheld.”).
Regardless, the Court finds that the ALJ’s RFC is supported by
substantial evidence. With respect to Plaintiff’s migraines, the ALJ noted a
history of migraines since childhood but that CT scans of the brain have been
negative. See AR 26 (citing AR 407-11). The ALJ then went through several
years of treatment records, which indicated that although Plaintiff often
complained of headaches and accompanying pain, physical examination and
diagnostic findings were generally unremarkable. See AR 26-27 (citing AR
382-86, 439, 443). Considering that evidence, the ALJ accommodated
Plaintiff’s migraines and occipital neuralgia by limiting his exposure to noise
level and bright lights. See AR 22. Plaintiff does not say why those limitations
are inadequate or what greater limitations are required.
As to Plaintiff’s upper extremities, the ALJ noted that in mid-2017,
Plaintiff complained of hand and arm pain, and that physical examination
findings included decreased sensation in the C6 and C7 dermatomes of the
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right hand. See AR 25. Plaintiff’s orthopedic surgeon, Dr. Rajiv Puri, assessed
severe degenerative disc disease at C4-5, C5-6, and C6-7, with radicular pain to
the right arm and neurological deficit, and recommended surgical fusion. See
id. (citing AR 497, 560-61). After surgery, Plaintiff reported “feeling better as
far as his arm pain is concerned, though he still had pain in the back of the
neck and shoulders.” AR 502. In October 2017, Dr. Puri noted that Plaintiff’s
arm symptoms were “much better” than before the surgery, and neural
examination of the upper extremities was normal. AR 506.
Plaintiff also argues that the ALJ ignored his diagnosis of rheumatoid
arthritis (“RA”). See JS at 6-8. To the contrary, the ALJ explicitly noted that
Plaintiff’s rheumatologist, Dr. Bikramjit Ahluwalia, assessed RA in May 2018
based on mild to moderate swelling of the bilateral metacarpophalangeal
joints. See AR 27 (citing AR 664-65). Plaintiff submitted post-hearing
treatment records in January 2019, which indicated that he had not needed to
see an RA specialist since his May 2018 diagnosis, and that his treating
physician did not address RA except to note the diagnosis. See AR 625
(“[P]atient has self reported Rheumatoid Arthritis.”). The ALJ observed that,
while there might come a time that Plaintiff’s RA symptoms were so
insufficiently controlled that additional limitations (e.g., restrictions on
Plaintiff’s use of his hands) might be required, the evidence at the time of the
ALJ’s decision was inadequate to support such restrictions. See AR 27.
Plaintiff points to no RA-related treatment records commanding a different
result.
Accordingly, the ALJ did not err in determining Plaintiff’s RFC.
Subjective Symptom Testimony
1.

Testimony

At the hearing, Plaintiff testified as follows. Plaintiff has had cervical
pain since he injured his neck in 2003 or 2004. Plaintiff’s condition worsened
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after he was involved in a motor vehicle accident in May 2015. He had neck
surgery in August 2017, which fixed two of his discs, but there was a problem
with the third disc. He has problems with cervical range of motion and pain,
and experiences numbness in his upper extremities about 40% of the time,
right worse than left. His neck is his biggest obstacle preventing him from
working. He has headaches due to his cervical issues, which are sometimes
triggered by noise or bright lights. He was recently diagnosed with severe RA.
Plaintiff takes Norco, Gabapentin, and Flexeril for pain. Plaintiff uses a cane
to get up and down from sitting. He can sit for 40 minutes, stand for 15-20
minutes, and lift 10-15 pounds, but cannot carry things.
Plaintiff spends most of his time watching television and reading. He
does not help with household chores but is able to drive for 30 to 40 minutes.
Prior to his August 2017 surgery, Plaintiff was physically inspecting properties
and doing real estate paperwork for his mother. After the surgery, he reviewed
paperwork for a few hours a week, and stopped working altogether when his
mother retired and no longer owned the real estate business.
2.

Law

The ALJ must make two findings before finding the claimant’s pain or
symptom testimony not credible. “First, the ALJ must determine whether the
claimant has presented objective medical evidence of an underlying
impairment which could reasonably be expected to produce the pain or other
symptoms alleged.” Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014)
(citation omitted). Second, if the claimant has produced that evidence, and
there is no evidence of malingering, “‘the ALJ can reject the claimant’s
testimony about the severity of her symptoms only by offering specific, clear
and convincing reasons for doing so.’” Id. at 1014-15 (quoting Smolen v.
Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). “General findings are insufficient;
rather, the ALJ must identify what testimony is not credible and what evidence
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undermines the claimant’s complaints.” Reddick v. Chater, 157 F.3d 715, 722
(9th Cir. 1998) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). If
the ALJ’s subjective symptom finding is supported by substantial evidence in
the record, the reviewing court “may not engage in second-guessing.” Thomas
v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).
3.

Analysis

The ALJ concluded that although Plaintiff’s “medically determinable
impairments could reasonably be expected to cause the alleged symptoms,” his
statements “concerning the intensity, persistence and limiting effects of these
symptoms are not entirely consistent with the medical evidence and other
evidence in the record for the reasons explained in this decision.” AR 23-24.
Specifically, the ALJ found that Plaintiff’s statements were inconsistent with
(1) the objective medical evidence and (2) his work activity. See id.
First, the ALJ found that the medical evidence as a whole did not
support Plaintiff’s alleged limitations. This finding is supported by substantial
evidence. The ALJ went through each of Plaintiff’s severe impairments, noting
that the physical examination and diagnostic findings did not support, or were
inconsistent with, Plaintiff’s subjective symptom testimony. See AR 24-27.
Plaintiff argues that it “should be remembered” that he underwent a
multi-level cervical discectomy and fusion with cage implantation in August
2017. JS at 14. The ALJ, however, discussed Plaintiff’s surgery at length. The
ALJ noted that post-surgery, Plaintiff’s neck and arm were doing much better,
although he still had some back pain. See AR 25-26. Plaintiff also notes that
two treating orthopedic surgeons have suggested that he might need additional
surgery on his lumbar spine. See JS at 14. Plaintiff does not explain, however,
how suggestions of hypothetical, future surgery undercut the ALJ’s findings.
Plaintiff also argues that lack of supporting objective evidence cannot
form the sole basis for discounting symptom testimony. The Court does not
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disagree, but it is a relevant factor for the ALJ to consider. “Although lack of
medical evidence cannot form the sole basis for discounting pain testimony, it
is a factor that the ALJ can consider in his credibility analysis.” Burch v.
Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). The ALJ’s thorough cataloging of
objective medical evidence that was inconsistent with Plaintiff’s subjective
complaints was thus a valid factor weighing in the ultimate credibility finding.
Second, the ALJ found that Plaintiff’s work activity undermined his
subjective symptom statements. Specifically, the ALJ noted that Plaintiff
worked at his mother’s real estate business through 2017, four years after the
alleged disability onset date, and even after that. See AR 24. An ALJ can
discredit a claimant’s subjective pain testimony if they participate in “activities
indicating capacities that are transferrable to a work setting.” Molina v. Astrue,
374 F.3d 1104, 1113 (9th Cir. 2012); see also Bray v. Astrue, 554 F.3d 1219,
1221, 1227 (9th Cir. 2009) (affirming the ALJ’s adverse credibility finding
where the claimant “recently worked [part-time] as a personal caregiver for
two years, and has sought other employment since then”).
Plaintiff does not challenge this finding, which is supported by
substantial evidence. Plaintiff testified that until his 2017 surgery, he spent two
to four hours a day, five days a week, physically inspecting properties and
doing real estate paperwork:
[ALJ]: So, during the time between 2013 and 2017 when you were
still doing appraisal work were you doing like any of the actual—
the walking through the house inspections, looking to attics or
looking into basements, taking out a measuring tape, measuring
square footage; any of that kind of work?
[Plaintiff]: Yes, I was.
[ALJ]: Okay. All right. In an average week how many hours were
you spending doing that?
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[Plaintiff]: Maybe 20.
AR 76-78. After his surgery, Plaintiff continued to spend a few hours a week
doing paperwork, stopping only when his mother retired and no longer owned
the real estate business. See AR 79. That Plaintiff was able to able to work in
this capacity for several years past his alleged onset date formed a valid basis
for discrediting his subjective symptom testimony. See Carter v. Astrue, 472 F.
App’x 550, 552 (9th Cir. 2012) (affirming the ALJ’s adverse credibility finding
where the claimant “worked part-time for nearly another year after his alleged
disability onset date”).
Accordingly, the ALJ gave clear and convincing reasons in support of
the adverse credibility finding.
CONCLUSION
The decision is the Social Security Commission is affirmed and this case
is dismissed with prejudice.
IT IS SO ORDERED.
Date: October 13, 2020

___________________________
DOUGLAS F. McCORMICK
United States Magistrate Judge

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