Whitman v. Colvin

Filing 24

REPORT AND RECOMMENDATION of United States Magistrate Judge Re Plaintiff's 22 Motion for Summary Judgment and Defendant's 23 Cross-Motion for Summary Judgment. Objections to R&R due by 6/8/2017 and Replies due by 6/22/2017. Signed by Magistrate Judge Jan M. Adler on 5/18/2017.(ag)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 JOEY DALE WHITMAN, 11 Case No.: 3:16-cv-28-MMA-JMA 12 Plaintiff, 13 vs. 14 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 15 16 Defendant.1 17 REPORT & RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT’S CROSSMOTION FOR SUMMARY JUDGMENT [ECF Nos. 22, 23] 18 19 Plaintiff Joey Dale Whitman (“Plaintiff”) seeks judicial review of Defendant 20 Social Security Commissioner Nancy A. Berryhill’s (“Defendant”) determination 21 that he is not entitled to disability insurance benefits (“DIB”) and supplemental 22 security income (“SSI”). The parties have filed cross-motions for summary 23 judgment. [ECF Nos. 22, 23.] For the reasons set forth below, the Court 24 recommends Plaintiff’s motion for summary judgment be DENIED and 25                                                                   26 1 27 Nancy A. Berryhill, the new Acting Commissioner of Social Security, is substituted as the Defendant in this suit pursuant to Federal Rule of Civil Procedure 25(d). 1 3:16-cv-28-MMA-JMA 1 Defendant’s cross-motion for summary judgment be GRANTED. 2 3 I. BACKGROUND Plaintiff was born on December 23, 1968 and is a high school graduate. 4 5 (Admin R. at 30-31.) Plaintiff worked as a warehouse manager and delivery 6 driver for a party rentals company from 1998 to 2010. Id. at 31, 152. Plaintiff 7 stopped working in August 2010 due to swelling and pain in both Achilles 8 tendons. Id. at 31. 9 On August 16, 2011, Plaintiff filed an application for a period of disability 10 and disability insurance benefits. Id. at 16. On October 31, 2011, Plaintiff 11 protectively filed an application for supplemental security income. Id. at 16, 141, 12 157. In both applications, the Plaintiff alleged a disability onset date of August 13 8, 2010. Id. at 16, 141, 157. The Social Security Administration denied the 14 claim initially on October 26, 2011 and again upon reconsideration on March 14, 15 2012. Id. at 75-84. On April 27, 2012, Plaintiff filed a written request for an 16 administrative hearing. Id. at 99-104. On December 9, 2013, a hearing was 17 conducted by Administrative Law Judge (“ALJ”) Leland H. Spencer, who 18 determined on February 28, 2014 that Plaintiff was not disabled within the 19 meaning of the Social Security Act. Id. at 16-23. On April 27, 2014, Plaintiff 20 requested a review of the ALJ’s decision. Id. at 12. The Appeals Council for the 21 Social Security Administration (“SSA”) denied Plaintiff’s request for review on 22 November 6, 2015. Id. at 1-4. Plaintiff then commenced this action pursuant to 23 42 U.S.C. § 405(g). 24 // 25 // 26 // 27 2 3:16-cv-28-MMA-JMA 1 II. MEDICAL EVIDENCE 2 A. Scripps Clinic, Treating Physicians (August 2010 – October 2011) 3 On August 8, 2010, Plaintiff presented to the urgent care at Scripps Clinic 4 and was examined by Scott Krishel, M.D. Id. at 189. Plaintiff complained of 5 pain and swelling in the bilateral Achilles heel tendons over the past several 6 months, with the right tendon becoming particularly worse, making it difficult to 7 walk. Id. Plaintiff had a history of gout. Id. Dr. Krishel reported slight 8 tenderness on the right side at the base of the heel and no tenderness or 9 swelling in the left Achilles tendon. Id. Dr. Krishel reported 5/5 for dorsiflexion 10 and plantar flexion of the ankle against resistance. Id. at 190. Dr. Krishel 11 completed x-rays of the ankle and foot bilaterally and indicated no definite acute 12 changes, pending the radiologist’s reading. Id. Plaintiff’s right leg was splinted 13 and he was given crutches. Id. Dr. Krishel advised Plaintiff to continue non- 14 steroidal pain medication and prescribed a small dose of Vicodin. Id. 15 On August 9, 2010, Plaintiff presented to Dr. Clifford Feaver, a podiatrist. 16 Id. at 191. Plaintiff reported the Vicodin prescribed to him in Urgent Care had 17 not helped much. Id. Dr. Feaver noted Plaintiff was a very pleasant man, in no 18 acute distress. Id. at 192. Dr. Feaver reported the radiographs of the right 19 ankle were negative and (1) there was quite substantial inflammation and 20 swelling around the Achilles tendon bilaterally, (2) there was thickening in the 21 middle third, (3) it was much more tender on the right than on the left, (4) the 22 Thompson test was negative, (5) Homans’ sign was negative, (6) there was no 23 particular pain with compression of the calves on either side, (7) mild cavus foot 24 structure, (8) dorsiflexion at the ankle was limited bilaterally, and 25 (9) neurovascular status was grossly intact bilaterally. Id. Dr. Feaver 26 immobilized the right side in a Controlled Ankle Motion (“CAM”) Walker boot for 27 3 3:16-cv-28-MMA-JMA 1 added comfort and protection and advised Plaintiff to increase his medication 2 dosage for gout. Id. Dr. Feaver also ordered an MRI for the more symptomatic 3 right Achilles tendon and advised Plaintiff to follow up when the study became 4 available. Id. 5 On August 10, 2010, Plaintiff presented to Edward V.H. Skol, M.D., a 6 rheumatologist. Id. at 194. Plaintiff reported the increased dosage of his gout 7 medication had not helped. Id. Dr. Skol noted Plaintiff was well appearing, but 8 obviously uncomfortable. Id. at 195. Dr. Skol reported there was a thickening 9 and swelling of both Achilles tendons in the proximal aspect and tenderness to 10 palpation. Id. The doctor opined that although he could not rule it out 11 completely, he did not think this was a gout flare-up because of the duration of 12 the pain and the non-responsiveness to the increased medication. Id. at 196. 13 Dr. Skol advised Plaintiff to continue to wear the CAM Walker boot on the right 14 and to avoid working. Id. 15 On August 16, 2010, Plaintiff returned to Dr. Feaver for the MRI review. 16 Id. at 197. The MRI demonstrated a moderate grade intrasubstance tearing 17 longitudinally of the right Achilles tendon which clinically correlated to the 18 thickening and the area of chief complaint. Id. at 197, 232. Dr. Feaver 19 diagnosed Plaintiff with bilateral Achilles tendinosis, greater on the right than the 20 left. Id. Dr. Feaver directed Plaintiff to continue wearing the CAM Walker for an 21 additional two weeks, at which time physical therapy would be initiated. Id. 22 From August 30, 2010 to June 28, 2011, Plaintiff presented to Dr. Feaver 23 approximately every six weeks for follow-up. Id. at 198-211. By the October 4, 24 2010 appointment, Plaintiff had developed more significant symptoms on the left 25 and a CAM Walker was dispensed for use on that side. Id. at 200. During 26 those follow-up appointments, Dr. Feaver advised Plaintiff to try and wean 27 4 3:16-cv-28-MMA-JMA 1 himself off the CAM Walker. Id. at 198, 200, 203, 205, 207. At the June 28, 2 2011 appointment, Dr. Feaver noted over the past ten months that Plaintiff 3 consistently had physical therapy and had made relatively good progress, but 4 Plaintiff still experienced significant symptoms with extended activity. Id. at 211. 5 Plaintiff reported he had attended a fair the previous week for much of the day, 6 but had taken “mini rest breaks.” Id. Upon physical examination, Plaintiff was 7 able to do toe raising, but Dr. Feaver noted tenderness to palpation and fusiform 8 thickening in the middle third of the Achilles tendon bilaterally. Id. Dr. Feaver 9 also noted the left was worse than the right, but there were no other significant 10 changes. Id. Dr. Feaver assessed Plaintiff’s pain had improved by 80%-90%, 11 but Plaintiff continued to have significantly restricted activity and was unable to 12 work. Id. Dr. Feaver recommended a consultation with Dr. Rosen to discuss 13 surgical options. Id. 14 On August 10, 2011, Plaintiff presented to Dr. Adam S. Rosen for surgical 15 consultation. Id. at 213. Plaintiff reported the CAM Walkers and physical 16 therapy had helped somewhat, but he essentially had not improved and 17 continued to be out of work due to pain. Id. Dr. Rosen requested an MRI of the 18 left ankle and discussed the possibility of surgery on the left Achilles. Id. at 214. 19 The MRI of the left ankle, performed on August 25, 2011, showed Achilles 20 tendinosis with microscopic intra-substance tearing and mild paratenonitis. Id. 21 at 236. 22 From August 30, 2011 to October 12, 2011, Plaintiff presented to Dr. 23 John Cronin due to persistent loud snoring and struggling to breathe while 24 sleeping. Id. at 216-21, 254-56, 259-61. After completing a sleep study, 25 Plaintiff was diagnosed with mild obstructive sleep apnea. Id. at 220, 306. 26 During follow-up visits, Dr. Cronin noted Plaintiff responded well to CPAP, and 27 5 3:16-cv-28-MMA-JMA 1 was still responding well as of January 11, 2012. Id. at 243-45. 2 B. George G. Spellman, Jr. M.D., Non-Examining Physician 3 (October 2011) 4 On October 14, 2011, Dr. George G. Spellman, Jr. completed a physical 5 residual functional capacity assessment regarding Plaintiff. Id. at 238-40. Dr. 6 Spellman reported limitations due to bilateral degenerative joint disease of the 7 feet, Achilles enthesopathy bilaterally, and obesity were evident in the medical 8 evidence of record. Id. at 239. Dr. Spellman found Plaintiff was only partially 9 credible because the alleged persisting severity was not evident in the 10 longitudinal treatment record showing improvement in the Achilles tendon. Id. 11 Dr. Spellman further noted Plaintiff’s obstructive sleep apnea was mitigated by 12 the CPAP. Id. Dr. Spellman opined Plaintiff was capable of performing at least 13 light work. Id. 14 C. Adam Rosen, M.D., Treating Physician 15 (October 2011 – January 2012) 16 On October 20, 2011, Dr. Rosen operated on Plaintiff for chronic left 17 Achilles tendinosis. Id. at 281. At the time of his left Achilles tendon 18 debridement and repair surgery, Plaintiff was found to have thickened fibrotic 19 tissue in the intrasubstance of the tendon. Id. at 282. No calcific pieces were 20 noted and more than 50% of the tendon was intact. Id. 21 Beginning on November 2, 2011, Plaintiff presented to Dr. Rosen for post- 22 operative follow-ups. Id. at 252. Dr. Rosen noted that clinically, Plaintiff was 23 doing well and converted him into a short-leg cast in slight plantar flexion. Id. 24 On November 16, 2011, Dr. Rosen noted there was some slight pulling and 25 tightness when he brought Plaintiff up to neutral, but observed he was doing 26 well clinically. Id. at 250. On December 7, 2011, Dr. Rosen again noted 27 6 3:16-cv-28-MMA-JMA 1 Plaintiff was doing well and had a well-healed incision. Id. at 248. Plaintiff was 2 converted into a CAM Walker and given a prescription for physical therapy. Id. 3 On January 11, 2012, Dr. Rosen noted Plaintiff had not yet started 4 physical therapy. Id. at 246. Upon examination, Dr. Rosen again noted a well- 5 healed incision, but also mild palpable nodular thickening over the area of his 6 prior surgical debridement. Id. He noted no tenderness on palpation and good 7 dorsiflexion and plantar flexion, although it was somewhat stiff compared to the 8 contralateral side. Id. Plaintiff was converted from his CAM Walker to a shoe 9 with a heel lift and was encouraged to start physical therapy. Id. 10 D. 11 James Metcalf, M.D., Non-Examining Physician (March 2012) On March 13, 2012, Dr. James Metcalf analyzed Plaintiff’s case and 12 affirmed Dr. Spellman’s October 14, 2011 finding of a light residual functional 13 capacity. Id. at 308. Dr. Metcalf noted that since the initial decision, Plaintiff 14 had undergone left Achilles tendon debridement and repair. Id. Dr. Metcalf 15 noted Plaintiff was doing well as of January 11, 2012 and was ready to begin 16 physical therapy. Id. Dr. Metcalf’s review of Plaintiff’s recent activities of daily 17 living showed that Plaintiff reported no problems with personal care, and could 18 prepare sandwiches, soups, and cereal daily. Id. Plaintiff also reported he was 19 able to fold laundry while sitting, go outside daily, drive short distances, and 20 shop in stores for up to 35-40 minutes. Id. Additionally, Plaintiff reported he 21 could watch movies, play board games, and visit with others, and could lift up to 22 ten pounds and walk up to 100 feet. Id. Plaintiff also reported pain with 23 exertional activities and use of the CAM Walker daily. Id. Dr. Metcalf affirmed 24 Plaintiff’s light residual function assessment lasting until October 20, 2012, one 25 year from the date of surgery. Id. 26 // 27 7 3:16-cv-28-MMA-JMA 1 E. Adam Rosen, M.D., Treating Physician (May 2013) Plaintiff returned to Dr. Rosen, his surgeon, on May 8, 2013. Id. at 335. 2 3 Dr. Rosen noted Plaintiff had undergone a repeat debridement with flexor 4 transfer on the left Achilles tendon on October 23, 2012. Id. 2 Plaintiff reported 5 he had completed physical therapy and was doing well, but there was pain in 6 his right heel. Id. Dr. Rosen noted Plaintiff still had swelling of his left foot and 7 as a result, Plaintiff had to increase his shoe size. Id. Plaintiff reported 8 occasional burning sensations that worsened after days in which he stood for 9 long periods. Id. Plaintiff also noted occasional use of 800 milligrams of 10 ibuprofen, which helped. Id. 11 Dr. Rosen made the following findings: there was a well-healed incision, 12 Plaintiff had mild puffiness to the retrocalcaneal bursa, but no significant edema 13 of the lower extremity; calf was supple and nontender; mild tightness 14 approximately six degrees of dorsiflexion on the left; sensation was grossly 15 intact, and pulses were intact. Id. at 335-36. Dr. Rosen adjusted Plaintiff’s shoe 16 by adding heel lifts to use for a number of weeks and noted Plaintiff’s 17 ambulation improved with the lifts. Id. at 336. Dr. Rosen advised Plaintiff to 18 wean out of the heel lifts as his symptoms allowed. Id. Dr. Rosen 19 recommended a five-day course of 800 milligrams of Motrin three times a day to 20 help with swelling and pain, and discussed using over-the-counter capsaicin. 21 Id. Dr. Rosen also discussed the continued role of stretching and advised 22 Plaintiff to use his night split. Id. Dr. Rosen spent twenty-five minutes with 23 Plaintiff, noting half the time was spent on patient counseling. Id. 24 // 25                                                                   26 27 Medical records pertaining to Plaintiff’s second surgery on October 23, 2012 are missing from the record. (Admin. R. at 49, 59.) 2 8 3:16-cv-28-MMA-JMA 1 F. Arch Health Partners, Treating Physicians (May 2013 - October 2013) On May 17, 2013, Plaintiff presented to Dr. Mark Hubbard of Arch Health 2 3 Partners for a second opinion. Id. at 324-26. Plaintiff reported he was still 4 seeing Dr. Rosen for bilateral Achilles tendon ruptures, and that he also had 5 depression. Id. at 324. Dr. Hubbard referred Plaintiff to Dr. Brad S. Cohen. Id. 6 On May 28, 2013, Plaintiff presented to Dr. Cohen and complained of 7 clicking and pain in his Achilles tendons, rated as 10/10, that woke him up 8 during the night. Id. at 310. Upon examination, Dr. Cohen reported findings 9 consistent with the prior surgical procedures. Id. Dr. Cohen recommended 10 Plaintiff seek another opinion. Id. at 311. 11 On October 25, 2013, Dr. Hubbard reported that Plaintiff saw orthopedic 12 surgeons Dr. Sitler and Dr. Copp, both of whom advised against further 13 surgeries. Id. at 316. Dr. Hubbard recommended a follow-up in six months. Id. 14 at 317. 15 G. 16 Adam Rosen, M.D., Treating Physician (December 2013) On December 4, 2013, Plaintiff presented again to Dr. Rosen. Id. at 332. 17 Plaintiff reported that since completing therapy, he had fluctuating pain, 18 sometimes exacerbated without any significant trauma. Id. Dr. Rosen noted 19 Plaintiff came to the office in normal shoes and walked with minimal to 20 nonantalgic gait. Id. Dr. Rosen’s physical examination revealed a well-healed 21 incision, intact pulses, and strength at about 4/5 compared to 5/5 on the 22 contralateral side. Id. Dr. Rosen also noted no papable defects, mild 23 tenderness along the path of the Achilles and mild tenderness with calcaneal 24 squeeze. Id. After a long discussion with Plaintiff wherein Plaintiff reported he 25 still suffered from symptoms, Dr. Rosen recommended a conservative approach 26 of stepping back and placing Plaintiff back into the CAM Walker for 27 9 3:16-cv-28-MMA-JMA 1 approximately three weeks. Id. at 333. If the CAM Walker did not help to 2 decrease symptoms, then Plaintiff was directed to go back on crutches for a 3 week or two to decrease the stress across the foot. Id. Dr. Rosen provided a 4 sample of diclofenac patches and a prescription for 800 milligrams ibuprofen to 5 be taken three times a day for ten days. Id. Dr. Rosen noted that after 6 Plaintiff’s pain decreased, they would discuss a gradual return to strengthening 7 exercises and possibly a revisit to formal physical therapy. Id. 8 9 III. 10 THE ADMINISTRATIVE HEARING The ALJ conducted an administrative hearing on December 9, 2013. 11 Id. at 27. 12 A. 13 Plaintiff’s Testimony Plaintiff testified he was born on December 23, 1968 and graduated 14 from high school. Id. at 30. From 1998 until August 2010, Plaintiff worked 15 at a party rental company. Id. at 31. In August 2010, Plaintiff stopped 16 working because he ruptured both of his Achilles tendons. Id. Plaintiff 17 testified he did not look for other work that allowed him to sit down because 18 he could not concentrate due to “excruciating pain.” Id. at 32. 19 Plaintiff underwent two surgeries on his left Achilles tendon, the 20 second of which was in October 2012. Id. at 37. Plaintiff testified Dr. 21 Rosen wanted to get the left tendon under control before performing any 22 work on the right. Id. at 41. Plaintiff worked the left tendon with a stretchy 23 band daily to help strengthen the tendon. Id. at 42. Plaintiff took 800 24 milligrams of ibuprofen three times a day to help with the swelling of the 25 tendons. Id. at 37. 26 Plaintiff also testified driving approximately once per month in case of 27 10 3:16-cv-28-MMA-JMA 1 emergencies. Id. at 34. Otherwise, Plaintiff stated he stayed home and did 2 not engage in much physical activity. Id. Plaintiff’s daily activities 3 consisted of making food and using an iPad. Id. at 34-35. Plaintiff also 4 testified he could stand for approximately ten minutes, could walk with 5 crutches, and that he elevated his feet while sitting. Id. at 34. Plaintiff 6 testified he was prescribed Allopurinol for gout, Zoloft for depression, and 7 Lipitor for cholesterol. Id. at 36. Plaintiff noted his gout was under control 8 from consistent use of his medication. Id. at 41. 9 Plaintiff testified he uses a cane around the house and crutches if he 10 leaves the house. Id. at 38. Since August 2010, Plaintiff has used the 11 crutches approximately 80% of the time. Id. at 39. Plaintiff also noted 12 using a CAM Walker boot since August 2010. Id. Plaintiff told Dr. Rosen 13 he was in severe pain and he would sometimes remove the boot because 14 he was tired of wearing it. Id. at 40. Plaintiff indicated Dr. Rosen told him 15 he cannot take off the boot. Id. 16 B. 17 Medical Expert Testimony Medical Expert (“ME”) witness Dr. Arthur Brovender testified at the 18 administrative hearing. Id. at 42. The ME’s review of Plaintiff’s medical 19 records indicated Plaintiff had bilateral Achilles tendonitis in the right and 20 left feet. Id. at 46. The ME found Plaintiff was provided crutches in 21 preparation for the first surgery, but the record did not support a need for a 22 cane or crutches for the years post-surgery. Id. at 51, 53. The ME also 23 indicated the record did not support a limitation in the capacity to walk or 24 stand. Id. at 53. Upon examination by Plaintiff’s attorney, the ME testified 25 the record did not show a need for surgery or other intervention with the 26 right Achilles tendon. Id. at 54. The ME also testified the record did not 27 11 3:16-cv-28-MMA-JMA 1 support a listing under Listing 1.02A, even after taking Plaintiff’s obesity 2 into consideration, because the record did not indicate Plaintiff needed two 3 crutches or canes and he was able to get around. Id. at 55-56. 4 5 Vocational expert Connie Guillory appeared at the hearing, but did not testify. Id. at 16. 6 7 8 9 10 11 IV. THE ALJ DECISION After reviewing the record, ALJ Spencer made the following findings: …. 2. The claimant has not engaged in substantial gainful activity since August 8, 2010, the alleged onset date [citation omitted]. 12 13 14 15 16 17 18 19 3. The claimant has the following severe impairments: bilateral Achilles tendonitis, left greater than right, status post left Achilles tendon debridement on October 20, 2011 and repeated debridement with flexor tendon transfer on October 23, 2012; and obesity [citation omitted]. 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 [the Social Security Regulations]. 20 21 22 23 5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform the full range of sedentary work standing for no more than two hours in an eight hour workday [citation omitted]. 24 25 6. The claimant is unable to perform any past relevant work [citation omitted]. 26 27 .... 12 3:16-cv-28-MMA-JMA 10. Considering the claimant’s age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform [citation omitted]. 1 2 3 4 11. The claimant has not been under a disability, as defined in the Social Security Act, from August 8, 2010, through the date of this decision [citation omitted]. 5 6 7 Id. at 18-23. 8 9 V. 10 STANDARD OF REVIEW To qualify for disability benefits under the Social Security Act, an 11 applicant must show: (1) He or she suffers from a medically determinable 12 impairment that can be expected to result in death or that has lasted or can 13 be expected to last for a continuous period of twelve months or more, and 14 (2) the impairment renders the applicant incapable of performing the work 15 that he or she previously performed or any other substantially gainful 16 employment that exists in the national economy. See 42 U.S.C. § 17 423(d)(1)(A), (2)(A). An applicant must meet both requirements to be 18 “disabled.” Id. Further, the applicant bears the burden of proving that he or 19 she was either permanently disabled or subject to a condition which 20 became so severe as to disable the applicant prior to the date upon which 21 his or her disability insured status expired. Johnson v. Shalala, 60 F.3d 22 1428, 1432 (9th Cir. 1995). 23 A. 24 Sequential Evaluation of Impairments The Social Security Regulations outline a five-step process to 25 determine whether an applicant is "disabled." The five steps are as follows: 26 (1) Whether the claimant is presently working in any substantial gainful 27 13 3:16-cv-28-MMA-JMA 1 activity. If so, the claimant is not disabled. If not, the evaluation proceeds 2 to step two. (2) Whether the claimant’s impairment is severe. If not, the 3 claimant is not disabled. If so, the evaluation proceeds to step three. (3) 4 Whether the impairment meets or equals a specific impairment listed in the 5 Listing of Impairments. If so, the claimant is disabled. If not, the evaluation 6 proceeds to step four. (4) Whether the claimant is able to do any work he 7 has done in the past. If so, the claimant is not disabled. If not, the 8 evaluation continues to step five. (5) Whether the claimant is able to do 9 any other work. If not, the claimant is disabled. Conversely, if the 10 Commissioner can establish there are a significant number of jobs in the 11 national economy that the claimant can do, the claimant is not disabled. 20 12 C.F.R. § 404.1520; see also Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th 13 Cir. 1999). 14 B. Judicial Review 15 Sections 205(g) and 1631(c)(3) of the Social Security Act allow 16 unsuccessful applicants to seek judicial review of the Commissioner's final 17 agency decision. 42 U.S.C.A. §§ 405(g), 1383(c)(3). The scope of judicial 18 review is limited. The Commissioner’s final decision should not be 19 disturbed unless: (1) The ALJ's findings are based on legal error or (2) are 20 not supported by substantial evidence in the record as a whole. Schneider 21 v. Comm’r of Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000). 22 Substantial evidence means “more than a mere scintilla but less than a 23 preponderance; it is such relevant evidence as a reasonable mind might 24 accept as adequate to support a conclusion.” Andrews v. Shalala, 53 F.3d 25 1035, 1039 (9th Cir. 1995). The Court must consider the record as a 26 whole, weighing both the evidence that supports and detracts from the 27 14 3:16-cv-28-MMA-JMA 1 ALJ’s conclusion. See Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2 2001); Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 3 (9th Cir. 1988). “The ALJ is responsible for determining credibility, 4 resolving conflicts in medical testimony, and for resolving ambiguities.” 5 Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (citing Andrews, 53 6 F.3d at 1039). Where the evidence is susceptible to more than one rational 7 interpretation, the ALJ’s decision must be affirmed. Vasquez, 572 F.3d at 8 591 (citation and quotations omitted). 9 Section 405(g) permits this Court to enter a judgment affirming, 10 modifying, or reversing the Commissioner’s decision. 42 U.S.C.A. § 11 405(g). The matter may also be remanded to the SSA for further 12 proceedings. Id. 13 14 VI. DISCUSSION 15 Plaintiff contends the ALJ committed error by failing to articulate 16 legally sufficient reasons for discrediting his symptom testimony and finding 17 him not credible. (Pl’s Mem. at 3-10.) 18 In determining a claimant’s residual functional capacity, the ALJ must 19 consider all relevant evidence in the record, including medical records, lay 20 evidence, and “the effects of symptoms, including pain, that are reasonably 21 attributed to a medically determinable impairment.” See Robbins v. Soc. 22 Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006) (citing SSR 96-8p, 1996 WL 23 374184, at *5). “Careful consideration must be given to any available 24 information about symptoms because subjective descriptions may indicate 25 more severe limitations or restrictions than can be shown by objective 26 medical evidence alone.” SSR 96-8p, 1996 WL 374184, at *5. An ALJ 27 15 3:16-cv-28-MMA-JMA 1 must provide specific, clear and convincing reasons for rejecting a 2 claimant’s testimony about the severity of his symptoms. Treichler v. 3 Comm’r, 775 F.3d 1090, 1102 (9th Cir. 2014).3 4 Here, the ALJ found Plaintiff’s medically determinable impairments 5 could reasonably be expected to cause the alleged symptoms, but 6 Plaintiff’s statements concerning the intensity, persistence and limiting 7 effects of these symptoms were not entirely credible for the following 8 reasons: 9 (1) The objective medical evidence did not support the Plaintiff’s allegations of a disabling physical impairment or combination of impairments and related symptoms; (2) Plaintiff experienced improvement with conservative treatment; (3) Plaintiff’s daily activities were not limited to the extent one would expect, given the complaints of disabling symptoms and limitations; and (4) Plaintiff’s testimony was inconsistent with the medical evidence. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26                                                                   Plaintiff contends Social Security Ruling (“SSR”) 16-3p applies to this case. (Pl’s Mem. at 4 & n.3.) Defendant contends it does not because SSR 16-3p became effective on March 28, 2016, well after the ALJ’s decision. (Def.’s Mem. at 3 n.2.) SSR 16-3p and SSR 96-7p both relate to the evaluation of symptoms in disability claims. SSR 16-3p superseded SSR 96-7p and removed the term “credibility,” clarifying subjective symptom evaluation is not an examination of an individual’s character and an ALJ must instead assess whether the claimant’s subjective symptom statements are consistent with the record as a whole. See SSR 16-3p, 2016 WL 1119029 (amended at 2016 WL 1237954). Here, the ALJ’s decision was issued over two years before SSR 16-3p became effective. Thus, the ALJ could not have employed the new SSR, and his decision includes reference to Plaintiff’s “credibility.” In any case, because the Court finds the ALJ’s findings pass muster irrespective of which SSR governs, the Court need not resolve whether SSR 16-3p retroactively applies. See, e.g., Anderson v. Colvin, 2016 WL 7013472, at *10 n.8 (D. Or. Nov. 30, 2016). 3 27 16 3:16-cv-28-MMA-JMA 1 (Admin. R. at 19-22.) The Court must determine whether the ALJ provided 2 clear and convincing reasons to discount Plaintiff’s subjective symptom 3 testimony. 4 A. 5 Objective Medical Evidence The ALJ’s first reason for finding Plaintiff’s pain testimony not 6 credible, that the weight of the objective evidence did not support Plaintiff’s 7 claims of disabling limitations to the degree alleged (id. at 20), is a clear 8 and convincing reason. Although an ALJ may not disregard a claimant=s 9 testimony Asolely because it is not substantiated affirmatively by objective 10 medical evidence@ (see Robbins, 466 F.3d at 883 [emphasis added]), the 11 ALJ may consider whether the alleged symptoms are consistent with the 12 medical evidence as one factor in his evaluation. See Lingenfelter v. 13 Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007); see also Burch v. Barnhart, 14 400 F.3d 676, 681 (9th Cir. 2005) (AAlthough lack of medical evidence 15 cannot form the sole basis for discounting pain testimony, it is a factor that 16 the ALJ can consider in his credibility analysis.@) 17 Here, the ALJ evaluated the medical record, which showed Plaintiff 18 had bilateral Achilles tendinosis and tears. (Admin. R. at 20, 197, 293, 19 297.) The ALJ reviewed medical examinations and noted Plaintiff 20 participated in physical therapy and used a CAM Walker for added comfort 21 and protection. Id. at 20, 192, 197, 200, 201, 203, 207. The ALJ reviewed 22 early progress notes showing physical therapy and the CAM Walker were 23 relatively effective in providing some pain relief. Id. at 20, 203, 209, 211. 24 Although Plaintiff worked on weaning himself from using the CAM Walker, 25 the record reflects Plaintiff never fully weaned himself off it and appeared at 26 the ALJ hearing in the CAM Walker. Id. at 39, 200, 203, 205, 207, 209, 27 17 3:16-cv-28-MMA-JMA 1 213, 246, 333. The ALJ acknowledged the record reflected that Plaintiff 2 showed reduced range of motion and some swelling and tenderness, but 3 also that Plaintiff’s feet had adequate strength and were neurovascularly 4 intact. Id. at 20, 264. The ALJ reviewed other progress notes showing 5 Plaintiff had a well-healed incision, intact pulses, minimally decreased 6 strength in one foot but full motor strength in his other foot, no palpable 7 defects, and only mild tenderness. Id. at 21, 332. 8 9 Plaintiff argues the ALJ did not sufficiently consider treatment notes reflecting tenderness on physical examination but fluctuating pain levels, at 10 times exacerbated without significant trauma, as well as Plaintiff’s 11 nonantalgic gait and shortened stride on the left side and early heel off. 12 (Pl’s Mem. at 6-7.) However, these same treatment notes also reflect that 13 Plaintiff wore normal shoes, walked with minimal to nonantalgic gait, and 14 had a well-healed incision, pulses intact, strength of about 4+/5 compared 15 to 5/5 on the contralateral side, no palpable defects, and only mild 16 tenderness. (Admin. R. at 332.) The treatment notes also show mild 17 puffiness to the retrocalcaneal bursa but no significant edema of the lower 18 extremity, mild tightness, and sensation grossly intact. (Id. at 336.) The 19 ALJ reasonably found these clinical findings did not support Plaintiff’s 20 claims of disabling limitations to the degree alleged. 21 The Court finds the ALJ’s determination that the objective medical 22 evidence in the record does not support Plaintiff’s allegations of disability is 23 clear and convincing. 24 B. 25 26 Plaintiff’s Improvement With Conservative Treatment The ALJ’s second reason for finding Plaintiff’s pain testimony not credible, that Plaintiff’s condition improved with conservative treatment, is 27 18 3:16-cv-28-MMA-JMA 1 clear and convincing. Receiving only Aminimal@ and Aconservative@ 2 treatment is a valid reason to discredit a claimant=s symptom testimony. 3 Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999). Plaintiff’s treatment 4 primarily consisted of physical therapy and a CAM Walker boot. The ALJ 5 noted Plaintiff primarily took only ibuprofen and had not alleged any side 6 effects from the use of medications. (Admin. R. at 21, 333, 335.) The ALJ 7 also noted the advice to Plaintiff to wean off the use of a CAM Walker. Id. 8 The ALJ found no indication Plaintiff’s physician recommended permanent 9 or long term use of any assistive device and the pattern had been to use a 10 CAM Walker for a short period of time and then wean off it. Id. Although 11 Plaintiff points to his use of crutches, and infers that crutches are not 12 conservative treatment (Pl.’s Mem. at 6), the physician’s suggestion to use 13 crutches was part of the conservative approach to step back and use 14 assistive devices for only a short period of time (a week or two). (Admin R. 15 at 333.) Also, as the ALJ correctly noted, there is no indication Dr. Rosen 16 ever recommended permanent or long-term use of any assistive devices. 17 Id. The CAM Walker was prescribed for approximately three weeks, and if 18 needed, the crutches for one or two weeks only. Id. Although Plaintiff 19 underwent surgery, which is generally not considered conservative 20 treatment, the surgeries were generally successful in improving Plaintiff’s 21 symptoms. Id. at 21. Additionally, treatment notes do not reflect Dr. Rosen 22 recommended any further surgeries and Dr. Sitler and Dr. Copp advised 23 Plaintiff refrain from undergoing any further surgeries. Id. at 316. 24 The ALJ’s finding that Plaintiff’s improvement with conservative 25 treatment does not support his allegations of disability is clear and 26 convincing. 27 19 3:16-cv-28-MMA-JMA 1 2 C. Daily Activities The ALJ’s third reason for discounting Plaintiff’s pain testimony is that 3 Plaintiff’s daily activities were not limited to the extent one would expect 4 given Plaintiff’s complaints of disabling symptoms and limitations. Id. at 21. 5 It is proper for an ALJ to consider the claimant=s daily activities in making 6 his credibility determination. See, e.g., Thomas v. Barnhart, 278 F.3d 947, 7 958-59 (9th Cir. 2002); see also 20 C.F.R. '' 404.1529(c)(3)(i), 8 416.929(c)(3)(i) (claimant=s daily activities relevant to evaluating 9 symptoms). AOne does not need to be >utterly incapacitated= in order to be 10 disabled.@ Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (citing 11 Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). A[M]any home activities 12 are not easily transferable to what may be the more grueling environment 13 of the workplace, where it might be impossible to periodically rest or take 14 medication.@ Fair, 885 F.2d at 603. Only if a claimant=s level of activities is 15 inconsistent with his claimed limitations would activities of daily living have 16 any bearing on the claimant=s credibility. Reddick v. Chater, 157 F.3d 715, 17 722 (9th Cir. 1998). 18 The ALJ determined Plaintiff’s daily activities did not support his 19 allegations of disability because he went to a fair and spent much of the 20 day there with only short rest breaks, prepared meals, drove a car, and 21 shopped in stores for 35 to 40 minutes. (Admin. R. at 21.) Plaintiff testified 22 he drives approximately once a month and although he is able to make 23 himself something to eat, he can only stand for ten minutes. (Id. at 34.) 24 Plaintiff also testified he used crutches when going out to the store and a 25 cane around the house. Id. at 38. Plaintiff also reported going outside 26 once a day, folding laundry while sitting, and spending time with others by 27 20 3:16-cv-28-MMA-JMA 1 watching movies, playing board games, and conversing. Id. at 171-73. 2 These activities are basic human functions that are not determinative of 3 disability. See Vertigan, 260 F.3d at 1050 (“the mere fact that a plaintiff 4 has carried on certain daily activities…does not in any way detract from 5 [plaintiff’s] credibility as to [plaintiff’s overall disability.”) As for Plaintiff’s trip 6 to the fair, this was a one-time only event, and Plaintiff’s taking small rest 7 breaks during his visit actually supports his testimony rather than detracting 8 from it. In short, Plaintiff’s reported daily activities, mainly staying at home, 9 standing for approximately ten minutes at a time, and using assistive 10 devices when he leaves the house, do not provide a basis for the ALJ to 11 discount Plaintiff’s symptom allegations. Plaintiff’s testimony about his 12 daily activities does not necessarily help him establish disability, either, as it 13 is not inconsistent with an ability to function in a workplace environment. 14 Therefore, this factor weighs neither for nor against the ALJ’s evaluation of 15 Plaintiff’s pain testimony. 16 D. Inconsistency of Plaintiff’s Testimony With the Medical Evidence 17 The ALJ’s fourth reason for finding Plaintiff’s pain testimony not 18 credible, that Plaintiff’s testimony is inconsistent with the medical evidence, 19 is clear and convincing. 20 The ALJ found by May 2013, after both surgeries, Plaintiff was doing 21 well overall, had some pain in his right heel and some swelling in his left 22 foot with only occasional burning sensation for which he took ibuprofen, 23 which helped. Id. at 20, 335-36. By December 2013, Plaintiff noted 24 fluctuating pain after completing physical therapy, but presented in normal 25 shoes, walking with a minimal to nonantalgic gait. Id. at 21, 332. The ALJ 26 also noted Dr. Rosen found a well-healed incision, intact pulses, minimally 27 21 3:16-cv-28-MMA-JMA 1 decreased strength in one foot but full motor strength in the other, no 2 palpable defects, and only mild tenderness. Id. The ALJ found although 3 Plaintiff alleged chronic and disabling bilateral foot pain, progress notes 4 frequently showed he was in no acute distress on physical examination. Id. 5 at 21, 192, 244, 316, 319, 324. The evidence of fluctuating pain, general 6 improvement, and the lack of acute distress is inconsistent with Plaintiff’s 7 statements of excruciating and disabling pain. Inconsistent statements and 8 testimony can bear upon a claimant=s credibility. See, e.g., Verduzco v. 9 Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999). The ALJ properly considered 10 Plaintiff’s inconsistent statements in discrediting Plaintiff’s symptom 11 testimony. 12 An ALJ=s assessment of pain severity and claimant credibility is 13 entitled to Agreat weight.@ Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 14 1989). The Court concludes the ALJ articulated sufficient clear and 15 convincing reasons supported by substantial evidence to discount Plaintiff’s 16 subjective pain testimony. 17 VII. CONCLUSION 18 For the reasons set forth above, Plaintiff’s motion for summary 19 judgment should be DENIED and Defendant’s cross-motion for summary 20 judgment should be GRANTED. 21 This report and recommendation will be submitted to the Honorable 22 Michael M. Anello, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Any 23 party may file written objections with the Court and serve a copy on all 24 parties on or before June 8, 2017. The document should be captioned 25 “Objections to Report and Recommendation.” Any reply to the Objections 26 shall be served and filed on or before June 22, 2017. The parties are 27 22 3:16-cv-28-MMA-JMA 1 advised that failure to file objections within the specified time may waive the 2 right to appeal the district court’s order. Martinez v. YIst, 951 F.2d 1153 3 (9th Cir. 1991). 4 DATED: May 18, 2017 5 6 ___________________ Jan M. Adler U.S. Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 23 3:16-cv-28-MMA-JMA

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