Aris Calderin v. Nancy A. Berryhill

Filing 26

ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE 22 by Judge George H. Wu. IT THEREFORE IS ORDERED that judgment be entered affirming the Commissioner's decision and dismissing this action with prejudice. (es)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ARIS C., Plaintiff, 12 13 v. 14 ANDREW SAUL, Commissioner of Social Security, 15 Defendant. 16 17 ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 19-0924-GW (JPR) ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE Pursuant to 28 U.S.C. § 636, the Court has reviewed the 18 Complaint, motions for judgment on the pleadings, Administrative 19 Record, and all other records on file as well as the Report and 20 Recommendation of U.S. Magistrate Judge. 21 Plaintiff filed Objections to the R. & R., in which he mostly 22 simply repeats arguments from his Motion for Judgment on the 23 Pleadings and Opposition to Defendant’s Motion for Judgment on 24 the Pleadings. On February 19, 2020, 25 For instance, Plaintiff reiterates that the ALJ erred in 26 giving great weight to the opinion of consulting examiner Dr. 27 John Sedgh, who was subsequently removed from the panel of 28 approved examining physicians. (See Objs. at 1-3.) 1 He claims 1 that Sedgh did not conduct the tests he said he did and submitted 2 a “false” x-ray of Plaintiff’s spine. 3 Magistrate Judge found, however, Plaintiff has not shown that 4 Sedgh actually made false statements or that the x-ray was 5 fabricated. 6 recognized that he was removed from the panel for problems with 7 tardiness, rushing, scheduling, and security — not fabricating 8 statements or documents — and that those issues were related 9 “only tangentially” to the reliability of his medical opinion. (R. & R. at 15-16.) (Id. at 1, 3.) As the Indeed, she correctly 10 (Id. at 14.) 11 a “fake,” he concedes that it showed greater impairment than 12 other doctors had diagnosed. 13 ray showed “[m]oderately advanced discogenic disease” even though 14 “[t]here is nothing wrong with [his] lower back”).) 15 error by the ALJ in considering the x-ray was harmless, as the 16 Magistrate Judge recognized. 17 And even if Plaintiff is correct that the x-ray was (See Objs. at 3-4 (arguing that x- Thus, any (R. & R. at 16.)1 Further, Plaintiff still has not explained what the 18 significance of Sedgh’s purported misstatements were or what 19 tests he failed to perform, much less whether they mattered to 20 the ALJ’s finding. 21 opinion was “in total contradiction with four treating 22 physician[s] and . . . [x]-rays made in the last fifteen years.” (See id. at 14.) He claims that Sedgh’s 23 1 24 25 26 27 28 To prove that the x-ray was “fake,” Plaintiff attaches a February 13, 2020 letter from orthopedic surgeon P. Douglas Kiester, stating that he has a “normal x-ray of the low back (lumbar spine) for a person of his age.” (Objs., Ex.) That letter is neither part of the Administrative Record nor referenced in Plaintiff’s motion or opposition, however, and the Court does not consider it. In any event, it does not prove that the x-ray was fake and reflects that even if it was it actually overstated Plaintiff’s impairments. 2 1 (Objs. at 3.) 2 is referring to or how they undermine Sedgh’s assessment. 3 extent he is alluding to orthopedic surgeon Ranjan Gutpa’s 2005 4 arthogram and 2016 x-ray of his shoulder, which showed a “Hill- 5 Sachs deformity” and “degenerative changes of the acromioclaviar 6 joint” (see Pl.’s Mot. J. Pleadings at 8), the Magistrate Judge 7 correctly explained how those findings were not inconsistent with 8 Sedgh’s assessment that an x-ray of Plaintiff’s shoulder — an x- 9 ray he does not dispute was taken — showed “degenerative 10 11 It isn’t clear what opinions or x-rays Plaintiff arthritic changes.” To the (R. & R. at 16.) Notably, Plaintiff concedes that “pain,” including shoulder 12 pain, is not the reason he can’t work. 13 says, the “real problem” is the “numbness and tingling” he feels 14 in his arms when “seated for a long period of time.” 15 as the Magistrate Judge found, the first time Plaintiff raised 16 that issue in many years was several weeks after he filed his DIB 17 application, when he complained to a doctor about his right arm. 18 (R. & R. at 17.) 19 other problem concerning his shoulders or arms in nine doctor 20 visits between 2013 and 2015, as the Magistrate Judge noted. 21 (Id. (citing AR 298-305, 322-24, 326-28, 337-39, 344-46, 351-56, 22 361-63).) 23 the gym suggests a high level of functioning in his upper 24 extremities. (Objs. at 5.) Rather, he (Id.) But Indeed, he did not report any pain, injury, or Further, that during that time he lifted weights at (See id. (citing AR 302).) 25 Plaintiff correctly points out that Dr. Marco Angulo, the 26 doctor he first raised the numbness and tingling issue with in 27 2015, opined in February 2016 that Plaintiff had to “walk around 28 and not stay sitting for a prolonged period of time.” 3 (Objs. at 1 6 (citing AR 422).) But the Magistrate Judge correctly 2 determined that any error by the ALJ in not assigning that 3 opinion any particular weight was harmless given that Angulo did 4 not start seeing Plaintiff until just a few months before his 5 date last insured and several months after that noted that his 6 condition “ha[d] been progressing recently.” 7 (citing AR 422).) 8 simply restated Plaintiff’s subjective complaints. 9 Magistrate Judge found, the ALJ discounted those subjective (R. & R. at 18 n.17 Further, it appears that Angulo’s assessment As the 10 complaints, a finding Plaintiff has not challenged, and 11 contemporaneous treatment records do not corroborate the 12 sensations Plaintiff reported. 13 orthopedic surgeon Kiester’s records “back[]” Angulo’s 14 assessments (see Objs. at 6 (citing AR 423, 431)), but the cited 15 records are silent on whether Plaintiff can sit for a prolonged 16 period because of his upper-extremity impairments. 17 2005 Kiester noted Plaintiff’s complaints of tingling in his arms 18 but concluded that his “only significant complaint” was 19 “tenderness at the base of his neck.” 20 noted in 2018, more than two years after the date last insured, 21 that Plaintiff “report[ed] some tingling [in] both arms,” he 22 ascribed no functional limitations from that impairment, finding 23 only “some weaknesses and loss of fine motor with the use of his 24 hands,” which the RFC accounts for, as the Magistrate Judge 25 pointed out, by adding limitations for “frequent handling and 26 fingering due to his continued right upper extremity 27 instability.” 28 (See id. at 19.) (AR 423.) He claims Indeed, in And although he (R. & R. at 17 (citing AR 31).) The Magistrate Judge also correctly recognized that 4 1 Plaintiff’s reported functional limitations were inconsistent 2 with his activities of daily living. 3 not point to Plaintiff performing those activities as proof that 4 his impairments did not exist. 5 drew the permissible inference that because he was able to 6 perform those activities his impairments were not as severe as he 7 reported. 8 seek medical help for the numbness in his arms. 9 explains that he did not go to the doctor for years because he (Id. at 19-20.) (See Objs. at 5.) She did Rather, she The same inference arises from Plaintiff’s refusal to Although he 10 “kn[e]w” they would just tell him to have surgery (id.), the fact 11 that he didn’t suggests that his symptoms did not prevent him 12 from working. 13 Having reviewed de novo those portions of the R. & R. to 14 which Plaintiff objects, the Court accepts the findings and 15 recommendations of the Magistrate Judge. 16 that judgment be entered affirming the Commissioner’s decision 17 and dismissing this action with prejudice. IT THEREFORE IS ORDERED 18 19 DATED: November 18, 2020 20 21 ______________________________ GEORGE H. WU U.S. DISTRICT JUDGE 22 23 24 25 26 27 28 5

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