Brozovic v. Colvin

Filing 23

REPORT AND RECOMMENDATION on Summary Judgment Motions. The parties must file any objections to this report by August 9, 2017. A party may respond to any objection within 14 days of being served with it. Signed by Magistrate Judge Andrew G. Schopler on 7/26/2017.(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Michael Sean Brozovic,

Case No.: 16-cv-1316-BEN-AGS
Plaintiff,

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v.

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REPORT AND RECOMMENDATION
ON SUMMARY JUDGMENT
MOTIONS

Nancy A. Berryhill,

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Defendant.

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Administrative law judges have the unenviable task of deciding if applicants for

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Social Security disability benefits are exaggerating their symptoms. The ALJ found so

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here, and plaintiff challenges that conclusion.

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BACKGROUND

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Plaintiff Michael Sean Brozovic believes he cannot be gainfully employed because

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he has an implanted pacemaker and mechanical heart valve and suffers from depression,

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panic disorder, insomnia, and a past aortic aneurysm and aortic arch dissection. At their

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worst, he asserts, his chronic pain and fatigue symptoms reduce him to simply lying in bed

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or walking only short distances before needing a prolonged break. After the 2014 hearing

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on his disability benefits application, the ALJ concluded that Brozovic’s heart-related

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conditions were serious, but were not disabling during the insured period, which ended

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March 31, 2010. In this appeal, Brozovic challenges only the ALJ’s finding that his

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symptom testimony was not credible.

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DISCUSSION
A.

Subjective Testimony on Severity of Symptoms

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In evaluating the credibility of subjective pain testimony, “the ALJ must determine

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whether the claimant has presented objective medical evidence of an underlying

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

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alleged.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citation omitted). If so,

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and absent evidence of malingering, “the ALJ can only reject the claimant’s testimony

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about the severity of the symptoms if she gives ‘specific, clear and convincing reasons’ for

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the rejection.” Id. (citations omitted). “General findings are insufficient; rather, the ALJ

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must identify what testimony is not credible and what evidence undermines the claimant’s

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complaints.” Id. (citation omitted). These adverse credibility findings must be “sufficiently

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specific to permit the court to conclude that the ALJ did not arbitrarily discredit claimant’s

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testimony.” Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1224 n.3 (9th Cir. 2010)

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(citation omitted). In weighing a claimant’s testimony, the ALJ may consider all the typical

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credibility factors, such as prior inconsistent statements, falsehoods, and discrepancies

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between the claimant’s statements and conduct. Ghanim, 763 F.3d at 1163; Light v. Soc.

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Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997).

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The ALJ gave six reasons for rejecting Brozovic’s symptom testimony, which are
each addressed below.

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1. Objective Medical Evidence

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The ALJ found that “[o]bjective medical evidence does not support the claimant’s

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[symptom] allegations prior to the expiration of his date last insured.” (AR 26.) Brozovic

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does not dispute this point, except to note that his testimony cannot be rejected on this

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ground alone. While true, the ALJ did not err in mentioning it as one of several reasons.

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See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (holding that “medical

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evidence is still a relevant factor in determining the severity of the claimant’s pain and its
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disabling effects,” though it cannot be “the sole ground” for rejecting “subjective pain

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testimony” (citation omitted)).

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2. Poor Work History

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Brozovic also does not contest the ALJ’s finding that he “had a very poor work

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record long before he allegedly became unable to work,” with little or no earnings in eight

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of the twelve years preceding his claimed disability. (AR 27, 149-50.) A spotty work

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history may undermine an applicant’s claim of being too disabled to work. See Thomas v.

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Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (rejecting symptom testimony based on the

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claimant’s “extremely poor work history” and ALJ’s finding that the claimant had “shown

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little propensity to work in her lifetime”).

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3. Unemployment for Reasons Other Than Disability

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Similarly, Brozovic does not challenge the ALJ’s rationale that “the claimant

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stopped working for reasons not related to the allegedly disabling impairments.” (AR 27.)

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The ALJ noted that during a 2010 evaluation, Brozovic said that he “stopped working in

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October 2008, well before his alleged onset date, because there was not enough work

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available.” (AR 27, 438.) This alternative explanation for Brozovic’s unemployment is a

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valid basis to discount his symptom testimony. See Bruton v. Massanari, 268 F.3d 824,

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828 (9th Cir. 2001) (holding that ALJ properly “disregard[ed] pain testimony” based in

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part on the claimant’s admission that “he left his job because he was laid off, rather than

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because he was injured”).

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4. Daily Activities

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Another factor undercutting Brozovic’s “complaints of disabling symptoms and

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limitations” was that his “daily activities . . . are not limited to the extent one would

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expect[.]” (AR 27.) In 2010, Brozovic “swam in the ocean, surfed, rode his bike, performed

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household chores and grocery shopped,” according to contemporaneous medical records

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and reports. (AR 27, 179, 482.) Of course, a claimant “need not vegetate in a dark room”

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to be eligible for benefits, but these sorts of everyday activities “may be grounds for

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discrediting the claimant’s testimony to the extent that they contradict claims of a totally
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debilitating impairment” and indicate “capacities that are transferable to a work setting.”

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Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012) (citations omitted).

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Yet Brozovic argues that he was severely hampered in performing these daily

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activities, so this rationale is a dull sword to wield against his credibility. While it may be

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possible to square Brozovic’s reported surfing and ocean-swimming with his symptom

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testimony—testimony such as not being able to walk more than a few blocks without

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resting (AR 45)—the ALJ could reasonably conclude that these activities undermined

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Brozovic’s claims. See Molina, 674 F.3d at 1111 (“Even when the evidence is susceptible

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to more than one rational interpretation, we must uphold the ALJ’s findings if they are

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supported by inferences reasonably drawn from the record.” (citation omitted)).

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5. Failure to Seek Mental Health Treatment

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The ALJ also found that Brozovic “has not generally received the type of mental

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health treatment one would expect for a totally disabled individual,” with no record of

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psychiatric medications and no psychological or psychiatric visits. (AR 27.) “[A]n

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unexplained, or inadequately explained, failure to seek treatment . . . can cast doubt on the

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sincerity of [a] claimant’s pain testimony.” Regennitter v. Comm’r of Soc. Sec. Admin., 166

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F.3d 1294, 1297 (9th Cir. 1999) (citation omitted).

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Brozovic responds that he failed to seek such treatment because he “does not have

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the best medical insurance,” a fact he claims the ALJ “correctly state[d]” in his decision

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but “ignored” in his credibility analysis. (ECF No. 16-1, at 9.) This is a puzzling criticism,

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because the ALJ’s opinion never mentions medical insurance at all. It is true that an ALJ

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cannot reject “a claimant’s complaints for lack of treatment when the record establishes

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that the claimant could not afford it.” Regennitter, 166 F.3d at 1297 (citation omitted); see

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also Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (same). But the record here shows

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that Brozovic saw physicians on a nearly monthly basis from the time of his heart surgery

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to the date last insured, and on a less frequent but regular basis thereafter. Yet there is no

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evidence that Brozovic ever raised his mental health impairments at any of these

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appointments. An ALJ may draw a negative inference when, as here, the claimant was
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medically treated during the alleged period of poverty, but failed to mention the problem.

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See Orn, 495 F.3d at 638 (noting that “an adverse credibility determination” is appropriate

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if “during the time [the claimant] alleged she was unable to afford treatment she had

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received other medical care and had failed to mention her back pain” (citation omitted)).

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Thus, the ALJ did not err by relying on the lack of mental health treatment.

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6. Conservative Treatment

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Finally, the ALJ found that Brozovic’s treatment course was merely “routine and/or

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conservative in nature,” with “infrequent” cardiac follow-ups. (AR 27.) “[E]vidence of

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conservative treatment is sufficient to discount a claimant’s testimony regarding severity

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of an impairment.” Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (citation omitted).

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But the problem with the conservative-treatment rationale, as Brozovic correctly points

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out, is that the ALJ never suggested what more aggressive treatment options might be

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pursued. See Lapeirre-Gutt v. Astrue, No. 09-15642, 2010 WL 2317918, at *1 (9th Cir.

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June 9, 2010) (“A claimant cannot be discredited for failing to pursue non-conservative

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treatment options where none exist.”). Indeed, it is not clear why the ALJ labeled

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Brozovic’s treatment “conservative” in the face of the many powerful medications he was

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prescribed following his surgery. See id. (criticizing an ALJ’s finding of “conservative

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treatment” considering the claimant’s “regimen of powerful pain medications and

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injections”). Without more, this basis is not a convincing reason to reject Brozovic’s

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symptom testimony.

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B.

Harmless Error Analysis

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Because the ALJ relied on one invalid reason—and five valid ones—for disbelieving

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the severity of Brozovic’s symptoms, this Court must review for harmless error. “So long

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as there remains substantial evidence supporting the ALJ’s conclusions on credibility and

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the error does not negate the validity of the ALJ’s ultimate credibility conclusion, such is

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deemed harmless and does not warrant reversal.” Carmickle v. Comm’r, Soc. Sec. Admin.,

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533 F.3d 1155, 1162 (9th Cir. 2008) (alterations and citations omitted). The five remaining

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reasons here are specific, clear, convincing, and supported by substantial evidence in the
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record—indeed, three of them are undisputed. They amply support the ALJ’s credibility

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finding by themselves, so the erroneous conservative-treatment rationale was harmless. See

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id. at 1162-63 (holding two invalid reasons for an adverse credibility finding were harmless

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error in light of the remaining reasoning); Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d

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1219, 1227 (9th Cir. 2009) (holding that one erroneous reason “amounts to harmless error,”

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when the ALJ “presented four other independent bases for discounting [the claimant’s]

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testimony”).

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CONCLUSION

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The Court recommends that Brozovic’s summary judgment motion (ECF No. 16) be

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DENIED and the Commissioner’s cross-motion for summary judgment (ECF No. 17) be

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GRANTED. The parties must file any objections to this report by August 9, 2017. See Fed.

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R. Civ. P. 72(b)(2). A party may respond to any objection within 14 days of being served

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with it. Id.

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Dated: July 26, 2017

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