Bell v. Commissioner of Social Security

Filing 19

ORDER signed by Magistrate Judge Kendall J. Newman on 8/27/18. Plaintiff's motion for summary judgment 13 is DENIED. The Commissioner's cross-motion for summary judgment 17 is GRANTED. The final decision of the Commissioner is AFFIRMED, and judgment is entered for the Commissioner. The Clerk of Court shall close this case. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHARLES HENRY BELL,

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Plaintiff,

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v.

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No. 2:17-cv-1195-KJN

ORDER

COMMISSIONER OF SOCIAL
SECURITY,

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Defendant.

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Plaintiff Charles Bell seeks judicial review of a final decision by the Commissioner of

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Social Security (“Commissioner”) holding that plaintiff was not disabled for purposes of

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receiving Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“Act”).1

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Plaintiff filed a motion for summary judgment, which the Commissioner opposed by filing a

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cross-motion for summary judgment. (ECF Nos. 13, 17.) Thereafter, plaintiff also filed a reply

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brief. (ECF No. 18.) For the reasons discussed below, the court DENIES plaintiff’s motion for

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summary judgment, GRANTS the Commissioner’s cross-motion for summary judgment, and

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AFFIRMS the Commissioner’s final decision.

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This action was referred to the undersigned pursuant to Local Rule 302(c)(15), and both parties
voluntarily consented to proceed before a United States Magistrate Judge for all purposes. (ECF
Nos. 7, 8.)
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I.

BACKGROUND

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Plaintiff was born on March 21, 1950; has a twelfth-grade education; can communicate in

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English; and previously worked as a mental health counselor. (Administrative Transcript (“AT”)

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182, 198, 200-01.)2 On August 18, 2013, plaintiff filed an application for DIB, alleging that he

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was unable to work as of October 12, 2012, due to an aneurysm, lower back problems, leg

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problems, poor blood circulation in the left leg, feet problems, arthritis in the left and right wrist,

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high blood pressure, an enlarged heart, high cholesterol, and poor short-term memory. (AT 26,

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182, 199.) After plaintiff’s application was denied initially and on reconsideration, plaintiff

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requested a hearing before an administrative law judge (“ALJ”), which took place on September

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9, 2015, and at which plaintiff, appearing without counsel, and a vocational expert (“VE”)

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testified. (AT 26, 38-84.) The ALJ subsequently issued a decision dated December 22, 2015,

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determining that plaintiff had not been disabled, as defined in the Act, from October 12, 2012,

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plaintiff’s alleged disability onset date, through the date of the ALJ’s decision. (AT 26-33.) The

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ALJ’s decision became the final decision of the Commissioner when the Appeals Council denied

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plaintiff’s request for review on April 6, 2017. (AT 1-6.) Plaintiff subsequently filed this action

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on June 7, 2017, to obtain judicial review of the Commissioner’s final decision. (ECF No. 1.)

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II.

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ISSUES PRESENTED
On appeal, plaintiff raises the following issues: whether the ALJ failed to (1) consider the

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impact of using a cane on plaintiff’s ability to lift; (2) enunciate the frequency and duration of

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plaintiff’s required breaks; and (3) consider plaintiff’s subjective complaints of pain.

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III.

LEGAL STANDARD
The court reviews the Commissioner’s decision to determine whether (1) it is based on

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proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record

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as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial

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Because the parties are familiar with the factual background of this case, including plaintiff’s
medical and mental health history, the court does not exhaustively relate those facts in this order.
The facts related to plaintiff’s impairments and treatment will be addressed insofar as they are
relevant to the issues presented by the parties’ respective motions.
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evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340

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F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means “such relevant evidence as a reasonable

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mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th

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Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “The ALJ is

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responsible for determining credibility, resolving conflicts in medical testimony, and resolving

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ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citation omitted). “The

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court will uphold the ALJ’s conclusion when the evidence is susceptible to more than one rational

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interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).

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IV.

DISCUSSION
Summary of the ALJ’s Findings

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The ALJ evaluated plaintiff’s entitlement to DIB pursuant to the Commissioner’s standard

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five-step analytical framework.3 As an initial matter, the ALJ found that plaintiff met the insured

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Disability Insurance Benefits are paid to disabled persons who have contributed to the Social
Security program. 42 U.S.C. §§ 401 et seq. Supplemental Security Income is paid to disabled
persons with low income. 42 U.S.C. §§ 1382 et seq. Both provisions define disability, in part, as
an “inability to engage in any substantial gainful activity” due to “a medically determinable
physical or mental impairment. . . .” 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). A parallel
five-step sequential evaluation governs eligibility for benefits under both programs. See 20
C.F.R. §§ 404.1520, 404.1571-76, 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 14042 (1987). The following summarizes the sequential evaluation:
Step one: Is the claimant engaging in substantial gainful activity? If so, the
claimant is found not disabled. If not, proceed to step two.

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Step two: Does the claimant have a “severe” impairment? If so, proceed to step
three. If not, then a finding of not disabled is appropriate.
Step three: Does the claimant’s impairment or combination of impairments meet or
equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the
claimant is automatically determined disabled. If not, proceed to step four.

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Step four: Is the claimant capable of performing her past relevant work? If so, the
claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant have the residual functional capacity to perform any
other work? If so, the claimant is not disabled. If not, the claimant is disabled.
Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).
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status requirements of the Act for purposes of DIB through December 31, 2015. (AT 28.) At the

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first step, the ALJ concluded that plaintiff had engaged in substantial gainful activity since

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October 12, 2012, plaintiff’s alleged disability onset date, but nonetheless proceeded through the

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sequential evaluation process. (Id.) At step two, the ALJ found that plaintiff had the following

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severe impairments: osteoarthritis of the right hip, degenerative joint disease of bilateral first

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CMC joints, and lumbar radiculopathy. (Id.) However, at step three, the ALJ determined that

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plaintiff did not have an impairment or combination of impairments that met or medically equaled

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the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (AT 29.)

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Before proceeding to step four, the ALJ assessed plaintiff’s RFC as follows:

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After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b). In
particular, the claimant is able to lift/carry 20 pounds occasionally
and 10 pounds frequently. He is able to stand and/or walk with
breaks up to four hours in an eight-hour workday. Sitting no
limitation but with breaks could go to six hours. He is medically
necessary to use a cane for long distances, on even or uneven
terrain. He can frequently climb stairs, stoop and crawl. He is able
to frequently finger and feel. [typing errors in original]

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(AT 29.) At step four, the ALJ determined, based on the VE’s testimony, that plaintiff was

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capable of performing past relevant work as a case aid. (AT 32.) In the alternative, at step five,

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the ALJ found that, in light of plaintiff’s age, education, work experience, RFC, and the VE’s

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testimony, there were other jobs that exist in significant numbers in the national economy that

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plaintiff could perform. (AT 32-33.) Consequently, the ALJ concluded that plaintiff had not

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been disabled, as defined in the Act, from October 12, 2012, plaintiff’s alleged disability onset

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date, through December 22, 2015, the date of the ALJ’s decision. (AT 33.)

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The claimant bears the burden of proof in the first four steps of the sequential evaluation
process. Bowen, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential
evaluation process proceeds to step five. Id.

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Plaintiff’s Substantive Challenges to the Commissioner’s Determinations

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Whether the ALJ failed to consider the impact of using a cane on plaintiff’s

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ability to lift

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Plaintiff first posits that the ALJ failed to consider additional limitations that may result

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from plaintiff’s use of a cane, such as further limitations on plaintiff’s ability to lift and carry

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items while using a cane. That argument lacks merit.

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The ALJ found that plaintiff had to use a cane for long distances, on even or uneven

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terrain. (AT 29.) That finding was substantially based on the opinion of consultative examiner

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Dr. Jonathan Schwartz, who indicated that plaintiff’s use of a cane was “medically necessary

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based upon objective examination findings, for long distances and all terrain.” (AT 576.)4 Dr.

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Schwartz found that plaintiff could lift and carry 20 pounds occasionally and 10 pounds

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frequently, and did not assess any additional limitations attributable to plaintiff’s use of a cane.

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(Id.) In turn, the VE testified that, based on plaintiff’s RFC (which included plaintiff’s need to

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use a cane for long distances on all terrain), plaintiff was capable of performing his prior work as

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a case aid. (AT 32, 75-76.) Notably, the Dictionary of Occupation Titles (“DOT”) does not show

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that the case aid position would require plaintiff to lift and carry objects with both of his hands.

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See DOT 195.367-010 (case aide), 1991 WL 671595. As the Commissioner points out, there is

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no evidence that plaintiff could not use one hand to lift or carry, and plaintiff is only required to

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use a cane for long distances in any event. (ECF No. 17 at 8-9.)

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Thus, plaintiff’s suggestion of additional limitations based on use of a cane is speculative

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and unsupported by the record, and essentially amounts to an improper attempt by a layperson to

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play medical and vocational expert.

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Whether the ALJ failed to enunciate the frequency and duration of
plaintiff’s required breaks
Plaintiff’s contention that the ALJ improperly failed to specify the frequency and duration

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On appeal, plaintiff does not challenge the ALJ’s evaluation of the medical opinion evidence
through any substantive briefing or argument. Thus, any such issue is waived. See Carmickle v.
Comm’r, 533 F.3d 1155, 1161 n.2 (9th Cir. 2008).
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of breaks in the RFC is likewise without merit. As noted above, the ALJ found that plaintiff

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could stand and/or walk with breaks up to four hours and sit with breaks up to six hours in an

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eight-hour workday. (AT 29.) Normal work breaks consist of a morning break, a lunch period,

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and an afternoon break at approximately 2-hour intervals. See SSR 96-9p, 1996 WL 374185, at

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*6. When a claimant’s need to alternate sitting and standing cannot be accommodated by the

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normal work breaks, an RFC assessment “must be specific as to the frequency of the individual’s

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need to alternate sitting and standing.” Id. at *7. Here, the ALJ did not assess a sit-stand option,

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or specifically find that more frequent breaks or alternation between sitting/standing/walking

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were necessary. As such, the ALJ’s reference to breaks was clearly to the normal work breaks as

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defined in SSR 96-9p. See Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989) (“As a

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reviewing court, we are not deprived of our faculties for drawing specific and legitimate

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inferences from the ALJ’s opinion.”).

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Whether the ALJ failed to consider plaintiff’s subjective complaints of pain
Finally, plaintiff’s argument that the ALJ failed to consider plaintiff’s subjective

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complaints of pain is unpersuasive. Here, the ALJ specifically discussed plaintiff’s allegations of

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pain and related limitations, but found plaintiff’s testimony not fully credible. (AT 30-31.)

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In Lingenfelter v. Astrue, 504 F.3d 1028 (9th Cir. 2007), the Ninth Circuit Court of

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Appeals summarized the ALJ’s task with respect to assessing a claimant’s credibility:
To determine whether a claimant’s testimony regarding subjective
pain or symptoms is credible, an ALJ must engage in a two-step
analysis. 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. The claimant, however, need not show that her
impairment could reasonably be expected to cause the severity of the
symptom she has alleged; she need only show that it could
reasonably have caused some degree of the symptom. Thus, the ALJ
may not reject subjective symptom testimony . . . simply because
there is no showing that the impairment can reasonably produce the
degree of symptom alleged.

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Second, if the claimant meets this first test, 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. . . .

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Lingenfelter, 504 F.3d at 1035-36 (citations and quotation marks omitted). “At the same time, the

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ALJ is not required to believe every allegation of disabling pain, or else disability benefits would

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be available for the asking....” Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012).

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“The ALJ must specifically identify what testimony is credible and what testimony

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undermines the claimant’s complaints.” Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685,

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693 (9th Cir. 2009) (quoting Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.

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1999)). In weighing a claimant’s credibility, an ALJ may consider, among other things, the

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“‘[claimant’s] reputation for truthfulness, inconsistencies either in [claimant’s] testimony or

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between [her] testimony and [her] conduct, [claimant’s] daily activities, [her] work record, and

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testimony from physicians and third parties concerning the nature, severity, and effect of the

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symptoms of which [claimant] complains.’” Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir.

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2002) (modification in original) (quoting Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir.

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1997)). If the ALJ’s credibility finding is supported by substantial evidence in the record, the

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court “may not engage in second-guessing.” Id. at 959.

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In this case, the ALJ found that plaintiff had presented objective medical evidence of an

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underlying impairment which could reasonably be expected to produce the pain or other

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symptoms alleged. (AT 30.) Additionally, the ALJ did not make an affirmative finding of

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malingering. Nevertheless, the ALJ then proceeded to provide specific, clear, and convincing

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reasons for discounting plaintiff’s credibility regarding the degree of his symptoms. (AT 30-31.)

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The ALJ reasonably noted that plaintiff’s allegations regarding the disabling degree of his

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pain and limitations were inconsistent with the relatively modest clinical findings and

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conservative routine care plaintiff received. (AT 30.) See Parra v. Astrue, 481 F.3d 742, 751 (9th

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Cir. 2007) (“We have previously indicated that evidence of conservative treatment is sufficient to

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discount a claimant’s testimony regarding severity of an impairment”). It was also plainly proper

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for the ALJ to consider that the “majority of medical opinions in the record,” including the

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opinions of consultative examiner Dr. Schwartz and the state agency physicians, “show that the

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claimant has considerable work-related abilities despite his impairments.” (AT 31.) Finally, the

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ALJ rationally relied on plaintiff’s work history to discount plaintiff’s credibility. (AT 30-31.)

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As the ALJ observed, plaintiff stopped working in June 2013, several months after his alleged
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disability onset date of October 12, 2012, due to a business-related layoff rather than because of

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the allegedly disabling impairments. (AT 28, 30, 46-48, 52-53.) Even though plaintiff claimed at

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the administrative hearing that he became disabled because of his medical condition in October

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2013, the ALJ noted that there was no evidence of a significant deterioration in plaintiff’s medical

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condition since plaintiff’s layoff in June 2013. (AT 28, 30.) The ALJ thus reasonably inferred

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that plaintiff’s medical condition would not prevent performance of his past work, because

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plaintiff was performing that job adequately at the time of his layoff despite existence of that

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medical condition. (AT 31.)
In sum, the ALJ’s credibility evaluation is supported by the record and by the proper

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analysis.5

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V.

CONCLUSION

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For the foregoing reasons, the court concludes that the ALJ’s decision is free from

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prejudicial error and supported by substantial evidence in the record as a whole. Accordingly, IT

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IS HEREBY ORDERED that:

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Plaintiff’s motion for summary judgment (ECF No. 13) is DENIED.

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2.

The Commissioner’s cross-motion for summary judgment (ECF No. 17) is

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GRANTED.

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for the Commissioner.

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The final decision of the Commissioner is AFFIRMED, and judgment is entered

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The Clerk of Court shall close this case.

Dated: August 27, 2018

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For the first time in his reply brief, plaintiff also contends that the ALJ failed to properly
evaluate the side effects from plaintiff’s medications. Because that new issue was not raised in
plaintiff’s opening brief, and the Commissioner has not had an opportunity to respond, the
argument is waived. Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“on appeal,
arguments not raised by a party in its opening brief are deemed waived”).
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