Walls v. Commissioner of Social Security

Filing 17

ORDER signed by Magistrate Judge Deborah Barnes on 02/26/19 DENYING plaintiff's 14 Motion for Summary Judgment; GRANTING defendant's 15 Cross-Motion for Summary Judgment; and AFFIRMING decision of the Commissioner of Social Security. CASE CLOSED (Benson, A.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WAYNE ANTHONY WALLS,

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No. 2:17-cv-2142 DB

Plaintiff,

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v.

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ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

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Defendant.

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This social security action was submitted to the court without oral argument for ruling on

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plaintiff’s motion for summary judgment and defendant’s cross-motion for summary judgment.1

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Plaintiff argues that the Administrative Law Judge’s residual functional capacity determination

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and treatment of plaintiff’s subjective testimony constituted error. For the reasons explained

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below, plaintiff’s motion is denied, defendant’s cross-motion is granted, and the decision of the

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Commissioner of Social Security (“Commissioner”) is affirmed.
PROCEDURAL BACKGROUND

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In the fall of 2013, plaintiff filed applications for Disability Insurance Benefits (“DIB”)

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under Title II of the Social Security Act (“the Act”) and for Supplemental Security Income

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Both parties have previously consented to Magistrate Judge jurisdiction in this action pursuant
to 28 U.S.C. § 636(c). (See ECF Nos. 8 & 9.)
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(“SSI”) under Title XVI of the Act alleging disability beginning on March 1, 2010.2 (Transcript

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(“Tr.”) at 14, 191-205.) Plaintiff’s alleged impairments included back pain, carpal tunnel, and

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pain. (Id. at 67.) Plaintiff’s applications were denied initially, (id. at 117-20), and upon

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reconsideration. (Id. at 129-38.)

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Thereafter, plaintiff requested a hearing which was held before an Administrative Law

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Judge (“ALJ”) on December 8, 2015. (Id. at 39-66.) Plaintiff was represented by an attorney and

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testified at the administrative hearing. (Id. at 39-41.) In a decision issued on May 23, 2016, the

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ALJ found that plaintiff was not disabled. (Id. at 26.) The ALJ entered the following findings:

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1. The claimant meets the insured status requirements of the Social
Security Act through September 30, 2017.

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2. The claimant has not engaged in substantial gainful activity
since April 1, 2014, the amended alleged onset date (20 CFR
404.1571 et seq., and 416.971 et seq.).

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3. The claimant has the following severe impairments:
degenerative disc disease of the lumbar spine, bilateral carpal
tunnel syndrome vs. probable seronegative inflammatory
polyarthritis, and osteoarthritis of the bilateral hips (20 CFR
404.1520(c) and 416.920(c)).

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4. The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925
and 416.926).

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5. After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform sedentary
work as defined in 20 CFR 404.1567(a) and 416.967(a) except with
the following limitations: occasionally climb, balance, stoop, kneel,
crouch, and crawl.

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6. The claimant is capable of performing past relevant work as an
order taker and a telemarketer. This work does not require the
performance of work-related activities precluded by the claimant’s
residual functional capacity (20 CFR 404.1565 and 416.965).

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7. The claimant has not been under a disability, as defined in the
Social Security Act, from April 1, 2014, through the date of this
decision (20 CFR 404.1520(f) and 416.920(f)).

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(Id. at 16-25) (footnote omitted).

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Plaintiff later amended the disability onset date to April 1, 2014. (Tr. at 14.)
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On August 23, 2017, the Appeals Council denied plaintiff’s request for review of the

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ALJ’s May 23, 2016 decision. (Id. at 1-5.) Plaintiff sought judicial review pursuant to 42 U.S.C.

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§ 405(g) by filing the complaint in this action on October 16, 2017. (ECF No. 1.)

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LEGAL STANDARD
“The district court reviews the Commissioner’s final decision for substantial evidence,

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and the Commissioner’s decision will be disturbed only if it is not supported by substantial

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evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158-59 (9th Cir. 2012).

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Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to

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support a conclusion. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001); Sandgathe v.

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Chater, 108 F.3d 978, 980 (9th Cir. 1997).
“[A] reviewing court must consider the entire record as a whole and may not affirm

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simply by isolating a ‘specific quantum of supporting evidence.’” Robbins v. Soc. Sec. Admin.,

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466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir.

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1989)). If, however, “the record considered as a whole can reasonably support either affirming or

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reversing the Commissioner’s decision, we must affirm.” McCartey v. Massanari, 298 F.3d

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1072, 1075 (9th Cir. 2002).

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A five-step evaluation process is used to determine whether a claimant is disabled. 20

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C.F.R. § 404.1520; see also Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). The five-step

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process has been summarized as follows:

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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.

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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 his past work? If
so, the claimant is not disabled. If not, proceed to step five.

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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.

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Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).
The claimant bears the burden of proof in the first four steps of the sequential evaluation

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process. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). The Commissioner bears the burden

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if the sequential evaluation process proceeds to step five. Id.; Tackett v. Apfel, 180 F.3d 1094,

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1098 (9th Cir. 1999).
APPLICATION

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Plaintiff’s pending motion argues that the ALJ committed the following two principal

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errors: (1) the ALJ’s treatment of plaintiff’s subjective testimony constituted error; and (2) the

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ALJ’s residual functional capacity determination failed to account for all of plaintiff’s

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limitations.3 (Pl.’s MSJ (ECF No. 14) at 7-13.4)

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I.

The Ninth Circuit has summarized the ALJ’s task with respect to assessing a claimant’s

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credibility as follows:
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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Plaintiff’s Subjective Testimony

Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) (citations and quotation marks

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Page number citations such as this one are to the page number reflected on the court’s CM/ECF
system and not to page numbers assigned by the parties.
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The court has reordered plaintiff’s claims for purposes of clarity and efficiency.

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omitted). “The clear and convincing standard is the most demanding required in Social Security

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cases.” Moore v. Commissioner of Social Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002). “At

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the same time, the ALJ is not required to believe every allegation of disabling pain, or else

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disability benefits would be available for the asking[.]” Molina v. Astrue, 674 F.3d 1104, 1112

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(9th Cir. 2012).
“The ALJ must specifically identify what testimony is credible and what testimony

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undermines the claimant’s complaints.”5 Valentine v. Commissioner Social Sec. Admin., 574

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F.3d 685, 693 (9th Cir. 2009) (quoting Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595,

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599 (9th Cir. 1999)). In weighing a claimant’s credibility, an ALJ may consider, among other

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things, the “[claimant’s] reputation for truthfulness, inconsistencies either in [claimant’s]

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

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

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of the symptoms of which [claimant] complains.” Thomas v. Barnhart, 278 F.3d 947, 958-59

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

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(9th Cir. 1997)). If the ALJ’s credibility finding is supported by substantial evidence in the

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record, the court “may not engage in second-guessing.” Id.
Here, plaintiff asserts “that the ALJ failed to articulate legally sufficient reasons for

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discounting” plaintiff’s subjective complaints. (Pl.’s MSJ (ECF No. 14) at 10.) The ALJ found

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that plaintiff’s medically determinable impairments could reasonably be expected to cause the

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symptoms alleged, but that plaintiff’s statements concerning the intensity, persistence and

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limiting effects of those symptoms were “not entirely consistent” with the evidence of record.

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(Tr. at 21.)

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In March of 2016, Social Security Ruling (“SSR”) 16-3p went into effect. “This ruling makes
clear what our precedent already required: that assessments of an individual’s testimony by an
ALJ are designed to ‘evaluate the intensity and persistence of symptoms after the ALJ finds that
the individual has a medically determinable impairment(s) that could reasonably be expected to
produce those symptoms,’ and not to delve into wide-ranging scrutiny of the claimant’s character
and apparent truthfulness.” Trevizo v. Berryhill, 871 F.3d 664, 679 (9th Cir. 2017) (quoting SSR
16-3p) (alterations omitted).
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One reason given by the ALJ for this determination was that “despite the claimant’s

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allegations of disabling symptoms, the record reveals that the claimant failed to follow-up on

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treatment recommendations made by his treating doctor,” “declined referral to a pain clinic and

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was reluctant to try new medications.” (Id.) The ALJ provided citations to evidence in the record

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supporting this finding. (Id. at 22, 366, 380, 661, 1255.) “[C]ase law is clear that if a claimant

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complains about disabling pain but fails to seek treatment, or fails to follow prescribed treatment,

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for the pain, an ALJ may use such failure as a basis for finding the complaint unjustified or

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exaggerated.” Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007); see also Bunnell v. Sullivan, 947

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F.2d 341, 346 (9th Cir. 1991) (“Another relevant factor may be unexplained, or inadequately

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explained, failure to seek treatment or follow a prescribed course of treatment.”).

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Thus, the court finds that the ALJ provided a clear and convincing reason for rejecting

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plaintiff’s subjective testimony. Plaintiff, therefore, is not entitled to summary judgment on this

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claim.

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II.

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Residual Functional Capacity Determination
Plaintiff also argues that the ALJ’s residual functional capacity (“RFC”) determination

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failed to “adequately capture” all of plaintiff’s limitations. (Pl.’s MSJ (ECF No. 14) at 7.) A

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claimant’s RFC is “the most [the claimant] can still do despite [his or her] limitations.” 20 C.F.R.

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§ 404.1545(a); 20 C.F.R. § 416.945(1); see also Cooper v. Sullivan, 880 F.2d 1152, n.5 (9th Cir.

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1989) (“A claimant’s residual functional capacity is what he can still do despite his physical,

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mental, nonexertional, and other limitations.”). In conducting an RFC assessment, the ALJ must

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consider the combined effects of an applicant’s medically determinable impairments on the

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applicant’s ability to perform sustainable work. 42 U.S.C. § 423(d)(2)(B); Macri v. Chater, 93

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F.3d 540, 545 (9th Cir. 1996).

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The ALJ must consider all of the relevant medical opinions as well as the combined

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effects of all of the plaintiff’s impairments, even those that are not “severe.” 20 C.F.R. §§

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404.1545(a); 416.945(a); Celaya v. Halter, 332 F.3d 1177, 1182 (9th Cir. 2003). “[A]n RFC that

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fails to take into account a claimant’s limitations is defective.” Valentine v. Commissioner Social

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Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). The ALJ must determine a claimant’s
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limitations on the basis of “all relevant evidence in the record.” Robbins v. Soc. Sec. Admin.,

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466 F.3d 880, 883 (9th Cir. 2006).
Here, plaintiff asserts that in determining plaintiff’s RFC, “the ALJ rejected the opinions

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of Richard Morgan, M.D., a treating physician without articulating legally sufficient reasons.”

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(Pl.’s MSJ (ECF No. 14) at 7.) The weight to be given to medical opinions in Social Security

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disability cases depends in part on whether the opinions are proffered by treating, examining, or

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nonexamining health professionals. Lester, 81 F.3d at 830; Fair v. Bowen, 885 F.2d 597, 604

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(9th Cir. 1989). “As a general rule, more weight should be given to the opinion of a treating

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source than to the opinion of doctors who do not treat the claimant[.]” Lester, 81 F.3d at 830.

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This is so because a treating doctor is employed to cure and has a greater opportunity to know and

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observe the patient as an individual. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Bates

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v. Sullivan, 894 F.2d 1059, 1063 (9th Cir. 1990).

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The uncontradicted opinion of a treating or examining physician may be rejected only for

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clear and convincing reasons, while the opinion of a treating or examining physician that is

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controverted by another doctor may be rejected only for specific and legitimate reasons supported

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by substantial evidence in the record. Lester, 81 F.3d at 830-31. “The opinion of a nonexamining

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physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion

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of either an examining physician or a treating physician.” (Id. at 831.) Finally, although a

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treating physician’s opinion is generally entitled to significant weight, “‘[t]he ALJ need not

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accept the opinion of any physician, including a treating physician, if that opinion is brief,

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conclusory, and inadequately supported by clinical findings.’” Chaudhry v. Astrue, 688 F.3d 661,

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671 (9th Cir. 2012) (quoting Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir.

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2009)).

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The ALJ summarized Dr. Morgan’s April 29, 2014 opinion stating:
. . . Dr. Morgan indicated the claimant could stand/walk a total of two
hours in a workday; sit a total of two hours in a workday; lift two
pounds occasionally and nothing frequently; frequently balance;
never bend, stoop, or work around dangerous equipment;
occasionally perform gross manipulation; would need to
occasionally elevate his legs to 90 degrees for up to 20 minutes;
would need to use a cane for balance and ambulation; would need to
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take unscheduled ten minute breaks during the day; and would likely
have two absences per month.

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(Tr. at 22.)
The ALJ afforded Dr. Morgan’s opinion “little weight” because the opinion “explicitly

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states in several places on the forms that the limitations he assessed were based on the claimant’s

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information.” (Id.) This finding is supported by review of Dr. Morgan’s opinion, wherein Dr.

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Morgan repeatedly acknowledges that many limitations are based on plaintiff’s statements. (Id. at

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468-73.) And Dr. Morgan does not assert that these limitations were also based on clinical

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evidence.
“If a treating provider’s opinions are based ‘to a large extent’ on an applicant’s self-

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reports and not on clinical evidence, and the ALJ finds the applicant not credible, the ALJ may

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discount the treating provider’s opinion.” Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014)

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(quoting Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008)). Here, Dr. Morgan’s

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opinion was based to a large extent on plaintiff’s self-reports and the ALJ properly found plaintiff

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not credible.
Moreover, the ALJ noted that aside from Dr. Morgan’s opinion which was based to a

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large extent on plaintiff’s self-reports, “no medical source statement suggested functional

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limitations more restrictive than” the ALJ’s RFC determination. (Tr. at 22.) If fact, plaintiff’s

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treating nurse practitioner opined that “other than some chronic lower back pain . . . . [h]ard to

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determine any limitations.” (Id. at 1258.)

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For the reasons stated above, the court finds that the ALJ provided clear and convincing

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reasons for discrediting Dr. Morgan’s opinion and that the ALJ’s RFC determination accounted

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for all of plaintiff’s limitations. Accordingly, plaintiff is also not entitled to summary judgment

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on this claim.
CONCLUSION

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The court has found that plaintiff is not entitled to summary judgment on any claim of

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error.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for summary judgment (ECF No. 14) is denied;

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2. Defendant’s cross-motion for summary judgment (ECF No. 15) is granted;

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3. The decision of the Commissioner of Social Security is affirmed; and

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4. The Clerk of the Court shall enter judgment for defendant and close this case.

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Dated: February 26, 2019

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DLB:6
DB\orders\orders.soc sec\walls2142.ord

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