Thomas Scott Duval v. Andrew Saul

Filing 22

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

Case No. ED CV 20-01256-DFM

THOMAS D.,

MEMORANDUM OPINION AND
ORDER

Plaintiff,
v.
KILOLO KIJAKAZI, Acting
Commissioner of Social Security,1
Defendant.

INTRODUCTION
In 2017, Thomas D. (“Plaintiff”) applied for Social Security Disability
Insurance Benefits, alleging disability beginning February 1, 2009. See Dkt. 16,
Administrative Record (“AR”) 296-97.2 After the claim was denied initially
and on reconsideration, Plaintiff requested a hearing before an Administrative
Kilolo Kijakazi was appointed acting commissioner on July 9, 2021
and is substituted in as the correct Defendant. See Fed. R. Civ. P. 25(d).
1

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.
2

Additionally, all citations to the AR are to the record pagination. All
other docket citations are to the CM/ECF pagination.

Law Judge (“ALJ”). See AR 208-20. The ALJ conducted a hearing on April 9,
2019. See AR 158-181.
The ALJ denied Plaintiff’s claim by written decision on April 19, 2019.
See AR 130-46. 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 between January 1,
2015, and April 24, 2019, a period of more than 12 consecutive months. See
AR 135. At step two, the ALJ determined that Plaintiff had the severe
impairments of “psoriatic arthritis, diabetes mellitus, fibromyalgia, obesity,
lumbar, cervical and thoracic degenerative disc disease, obesity, and
depression.” AR 136. 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 136-37.
Before reaching step four, the ALJ determined that Plaintiff had the
residual functional capacity (“RFC”) to perform light work with various
limitations. See AR 137. At step four, the ALJ found that Plaintiff was unable
to perform any past relevant work. See AR 140-41. At step five, the ALJ relied
on the testimony of a vocational expert to conclude that someone with
Plaintiff’s RFC could perform jobs that exist in the national economy,
including cashier II (Dictionary of Occupational Titles or “DOT” 211.462010), sales attendant (DOT 299.677-010), and housekeeping/cleaner (DOT
323.687-014). See AR 141-42. Accordingly, the ALJ denied benefits. See AR
142-43.
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.

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LEGAL STANDARD
A district court will set aside a denial of Social Security benefits only
when the ALJ’s 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 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). The substantial
evidence threshold “is not high” and “defers to the presiding ALJ, who has
seen the hearing up close.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154, 1157
(2019). “Where evidence is susceptible to more than one rational
interpretation, it is the ALJ’s conclusion that must be upheld.” Burch v.
Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
DISCUSSION
The parties dispute whether the ALJ properly considered Plaintiff’s
subjective symptom testimony. See Dkt. 21, Joint Stipulation (“JS”) at 4.
Legal Standard
The ALJ applies a two-step analysis to assess a claimant’s credibility for
symptom severity. See Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017).
Once the claimant “has presented objective medical evidence of an underlying
impairment which could reasonably be expected to produce the pain or other
symptoms alleged,” then, absent 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. “This is not an easy
requirement to meet: The clear and convincing standard is the most
demanding required in Social Security cases.” Id. The assessment of an
individual’s testimony by the ALJ is “designed to evaluate the intensity and
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persistence of symptoms . . . not to delve into wide-ranging scrutiny of the
claimant’s character and apparent truthfulness.” Id. at n.5.
Plaintiff’s Testimony and ALJ’s Finding
Plaintiff testified at the hearing as follows. Plaintiff was doing okay until
2015, when he woke up with “screaming pain” coming from his neck down to
his fingers. AR 168. He currently experiences pain in his lower back,
shoulders, neck, arms, and feet. See AR 161-64. He suffers from diabetes,
which is “pretty much controlled” with insulin. AR 162. Plaintiff can sit in a
chair for up to 10 minutes at a time but is “always constantly rocking and
fidgeting.” AR 163. Plaintiff has intense pain in his feet and blisters, which
makes it difficult to walk. See AR 164. He can walk for up to 2 blocks and then
needs to stop or rest. See AR 164-65. Plaintiff can lift something heavy once a
day but then would be done for the day. See AR 165.
Plaintiff works 15 hours a week at his church doing the bulletin and
prayer requests. See AR 161. He also takes care of his wife’s grandmother,
reads the bible, and goes to the store. See AR 166. Plaintiff can do some light
cleaning, but it often makes him light-headed. See id. Plaintiff has neuropathy
affecting his feet, for which he must wear orthotic shoes. See AR 172. As for
his mental health, Plaintiff has been seeing a psychiatrist and taking
antidepressants, which help with his depression. See AR 175-76.
The ALJ discredited Plaintiff under the second Trevino step, finding that
his statements of his symptoms were “not entirely consistent with the medical
evidence and other evidence in the record” and that “the objective record”
supported a finding that Plaintiff could perform work-related activities within
the RFC. AR 138.
Analysis
The ALJ’s primary finding was that Plaintiff’s statements were not
consistent with the objective medical record. See AR 138-39. “While subjective
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pain testimony cannot be rejected on the sole ground that it is not fully
corroborated by objective medical evidence, the medical evidence is still a
relevant factor in determining the severity of the claimant’s pain and its
disabling effects.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).
This finding is supported by substantial evidence. Plaintiff testified that
he was unable to work due to significant and debilitating pain in his lower
back, shoulders, neck, arms, and feet. See AR 161-64. But as the ALJ
explained, although Plaintiff’s physical examinations revealed tender points
consistent with fibromyalgia and range of motion limitations, they did not
show motor weakness, significant sensory deficits, or gait abnormality. See AR
138-39 (citing AR 384, 449, 680, 723, 726-27, 797-98). The ALJ further noted
that Plaintiff had unremarkable musculoskeletal and neurological
examinations. See AR 139. The ALJ cited specifically to Plaintiff’s
examination in December 2018 by consultative examiner Dr. Herman
Schoene. See id. (citing AR 838-40). Dr. Schoene found that Plaintiff could sit
and stand without difficulty, had a normal gait, and had a normal and painless
range of motion in his neck, back, shoulder, elbows, wrists, hands, hips, knees,
and ankles. See AR 839-40. Dr. Schoene also found that Plaintiff had normal
motor strength, sensation, and reflexes. See AR 840. The ALJ also cited other
examinations from 2018 that showed no significant findings, including cardiac
workups that were unremarkable with no findings of ischemia or valvular
dysfunction. See AR 139 (citing AR 890-899). The ALJ also highlighted that a
December 2018 consultative psychologist concluded that Plaintiff effectively
had no work-related limitations from a mental health perspective. See AR 140
(citing AR 828-36).
Plaintiff does not directly confront these records. Instead, Plaintiff
criticizes the ALJ for merely summarizing the medical evidence instead of
connecting it to Plaintiff’s testimony. An ALJ is not required “to perform a
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line-by-line exegesis of the claimant’s testimony,” but must do more than offer
“non-specific conclusions that [a claimant’s] testimony was inconsistent with
her medical treatment.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020).
The ALJ did a satisfactory job here. For example, the ALJ explained that
Plaintiff’s diagnosis of psoriatic arthritis, which accounted for many of his
issues, had been well controlled with a regimen of prednisone, methotrexate,
and Humira. See AR 138. Additionally, the ALJ pointed out that Plaintiff’s
chief complaint to Dr. Schoene was neck pain, but that he had an “entirely
unremarkable musculoskeletal and neurological examination.” AR 139.
Plaintiff also criticizes the ALJ’s finding in light of his fibromyalgia. See JS at
13-14. But the ALJ did not discount Plaintiff’s subjective symptom testimony
regarding the severity of his fibromyalgia symptoms solely based on a lack of
objective medical evidence. See, e.g., AR 138-39. In any event, a claimant’s
diagnosis of fibromyalgia does not completely insulate a claimant’s subjective
testimony.
The ALJ also rejected Plaintiff’s testimony because his “level of
functioning after the alleged onset date had been somewhat greater than [he]
had generally reported.” AR 139. An ALJ may use a claimant’s daily activities
to form the basis of an adverse credibility determination if they are
transferrable to a work setting or contradict the claimant’s other testimony. See
Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). This finding is likewise
supported by substantial evidence. The ALJ referenced Plaintiff’s testimony
that he could walk for only 2 blocks before needing to stop, rest, and have his
wife pick him up. See AR 138 (citing AR 164-65). But as the ALJ pointed out,
Plaintiff reported to his treating physician that his pain decreased with
movement and that he was walking 7 days a week. See AR 139 (citing AR
445). The ALJ also cited another progress report in which Plaintiff reported
that he walks for 30 minutes, twice a week, and that he had recently joined a
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gym. See id. (citing AR 644). Additionally, the ALJ noted that despite
Plaintiff’s allegations of widespread, intense pain, he reported working parttime at his church, where he did the bulletins, scheduling, and sent out prayer
requests. See AR 139-40, 830 (“He reports that he does the bulletins,
scheduling and sending out prayer requests. He states that it is going okay and
‘I love it.’”). Plaintiff also testified that he was able to care for his wife’s elderly
grandmother who has Alzheimer’s disease. See AR 139, 166. That Plaintiff
was able to work in this capacity 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”).
Plaintiff contends that the fact that he can participate in “basic human
function ‘is not determinative of disability.’” JS at 15-16 (quoting Magallanes
v. Bowen, 881 F.2d at 756. The Court does not disagree, and it is evident from
the record that Plaintiff had difficulties in his activities of daily living. But
“[e]ven where [daily] activities suggest some difficulty functioning, they may
be grounds for discrediting the claimant’s testimony to the extent that they
contradict claims of a totally debilitating impairment.” Molina v. Astrue, 674
F.3d 1104, 1113 (9th Cir. 2012), superseded by regulation on other grounds.
Such is the case here. The ALJ could reasonably conclude that Plaintiff’s
activities, including working part-time at his church, taking care of his wife’s
grandmother, participating in light exercise, and going to the store, among
other things, undermined his claims that he was incapable of all work without
suffering from debilitating pain. See Bray v. Comm’r of SSA, 554 F.3d 1219,
1227 (9th Cir. 2009) (affirming ALJ’s credibility finding where, among other
things, claimant had recently been employed).

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Last, the ALJ found that, despite his allegations of pain, Plaintiff
reported improvement in his symptoms from trigger point injections, physical
therapy, and a mixture of prescription drugs. See AR 138-39. “Impairments
that can be controlled effectively with medication are not disabling for the
purpose of determining eligibility” for benefits. Warre v. Comm’r, SSA, 439
F.3d 1001, 1006 (9th Cir. 2006); see also Cindy F. v. Berryhill, 367 F. Supp. 3d
1195, 1210 (D. Or. 2019) (“[E]vidence of effective treatment may support an
ALJ’s rejection of symptom allegations.”).
This finding is supported by substantial evidence. The ALJ noted that
Plaintiff’s back pain was well managed with lumbar facet injections, see AR
697 (“Today pain level is 4/10. Improvement from the last injection, worked
well for 7 months.”), he reported improvement of neck pain with physical
therapy, see AR 426 (“Reports 0/10 pain post treatment.”), 487 (“Reports pain
decrease to 2/10 post treatment.”), his medications provided a significant
benefit, see AR 789 (“When he started humira, the improvement was
dramatic. . . . Overall, [psoriatic arthritis] is well controlled on humira.”), and
that his diabetes was effectively controlled with treatment, see AR 433-34
(“[Plaintiff] denies any episodes of hypoglycemia” and “tolerates all
medications well.”).
Plaintiff contends that his injections “are simply not evidence of
conservative treatment.” JS at 11. But the ALJ’s only comment about
conservative treatment was a reference to Plaintiff’s VA treatment records, not
his epidural injections. See AR 139 (“Notes in 2018 from the VA indicate that
the claimant has continued conservative management for all of his medical
issues without flare-ups or acute complications.”). Plaintiff also argues that his
temporary improvements should have been interpreted with an awareness that
improved functioning while being treated “does not always mean that a
claimant can function effectively in a workplace.” JS at 12. But the ALJ
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explicitly noted that some of Plaintiff’s improvements were temporary and
crafted an RFC to account for his limitations: “[F]urther limiting the claimant
to occasional postural activities and placing a restriction on the claimant’s
ability to reach, push and pull is warranted based on his cervical spine and
shoulder conditions, as well as history of obesity. . . . [T]he medium [RFC]
assessment made by Dr. Schoene is overly optimistic based on the diagnostic
records and the claimant’s history of treatment for musculoskeletal pain.” AR
140. Plaintiff does not detail what other limitations follow from his bouts of
temporary improvements besides what is already listed in the RFC. The Ninth
Circuit has rejected “any invitation to find that the ALJ failed to account for [a
claimant’s] injuries in some unspecified way.” Valentine v. Comm’r, SSA, 574
F.3d 685, 692 n.2 (9th Cir. 2000).
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: July 15, 2021

___________________________
DOUGLAS F. McCORMICK
United States Magistrate Judge

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