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