Williams v. Berryhill

Filing 24

REPORT AND RECOMMENDATION re 21 Defendant's Cross MOTION for Summary Judgment filed by Nancy A. Berryhill, 15 Plaintiff's MOTION for Summary Judgment filed by Louis Williams. Objections to R&R due by 2/16/2018, Replies due by 2/23/2018. Signed by Magistrate Judge Jan M. Adler on 2/1/2018.(acc)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LOUIS WILLIAMS, Case No.: 17CV226-AJB(JMA) Plaintiff, 12 13 v. 14 REPORT & RECOMMENDATION NANCY A. BERRYHILL, Acting Commissioner of Social Security, 15 Defendant. 16 17 18 Plaintiff Louis Williams (“Plaintiff”) seeks judicial review of Defendant Acting 19 20 Social Security Commissioner Nancy A. Berryhill’s (“Defendant”) determination 21 that he is not entitled to disability insurance benefits (“DIB”). The parties have 22 filed cross-motions for summary judgment. For the reasons set forth below, the 23 Court recommends Plaintiff’s motion for summary judgment be DENIED and 24 Defendant’s cross-motion for summary judgment be GRANTED. 25 I. 26 BACKGROUND Plaintiff was born on February 23, 1968. (Admin. R. at 34.) He completed 27 “some college.” (Id.) His last job was as a production floor laborer with Trendes 28 Corporation. (Id.) He described that job as being “extreme physical work,” which 1 17CV226-AJB(JMA) 1 included driving a truck, operating a fork lift, working a manufacture assembly 2 line and heavy lifting (estimating the weight to be over 200 pounds). (Id. at 34-35. 3 He last worked in 2009, when he was laid off. (Id. at 35.) He testified at the time, 4 his employer had been trying to terminate him because his depression was 5 negatively affecting his job performance. (Id.) He has not worked since that time. 6 (Id. at 160.) 7 In his application for DIB, filed on August 1, 2012, Plaintiff alleged a 8 disability onset date of August 1, 2009, due to depression, fibromyalgia, and 9 chronic pain. (Id. at 143, 145.) Plaintiff’s applications were denied initially on July 10 22, 2013, and upon reconsideration on December 3, 2013. (Id. at 86-90; 94-99.) 11 On January 8, 2014, Plaintiff requested an administrative hearing. (Id. at 100-01.) 12 A hearing was conducted on September 10, 2015, by Administrative Law Judge 13 (“ALJ”) Keith Dietterle, who determined on October 16, 2015, that Plaintiff was 14 not disabled. (Id. at 11-25.) Plaintiff requested a review of the ALJ’s decision; the 15 Appeals Council for the Social Security Administration (“SSA”) denied Plaintiff’s 16 request for review on December 2, 2016. (Id. at 1-5.) Plaintiff then commenced 17 this action pursuant to 42 U.S.C. § 405(g). 18 II. MEDICAL EVIDENCE 19 A. Treating Physicians 20 The medical evidence establishes Plaintiff received ongoing and regular 21 treatment for depression and chronic back pain from locations from 2011 through 22 2015 at the Family Health Centers of San Diego’s Chase Avenue and Logan 23 Heights locations. Treatment notes of a visit he made on December 9, 2011 24 indicate he had a several year history of back pain and “muscle spasms” 25 diffusely, including arms and legs. (Id. at 249-250.) The pain in his lower back, 26 with radiation to shoulders, was estimated to be a 7-10 on a scale of 1-10. With 27 medication, he reported the pain improved to a 3-4 out of 10. Plaintiff used 28 // 2 17CV226-AJB(JMA) 1 Tylenol, Ibuprofen, Flexiril and, about once a week when the pain was severe, 2 Percocet. (Id.) He also took Prozac once a day for depression. (Id.) 3 On May 10, 2012, Plaintiff was seen by Kelly Hagerich, M.D. at the Chase 4 Avenue facility. (Id. at 316-317.) The purpose of his visit was to request 5 medication refills because he had lost all his medication in a house fire and to 6 request a disability form be completed. Dr. Hagerich observed he should have 7 run out of medication much earlier. When asked, Plaintiff was "not able to provide 8 a clear reason as to why he thinks he is disabled, besides ‘back spasms.’" 9 Plaintiff then became angry when Dr. Hagerich told him that she did not have 10 "enough information to fill out his disability form” and scheduled an appointment 11 with Christopher J. Gordon, M.D., a physician with the Chase Ave. facility who 12 treated Plaintiff on a regular basis, for the next day. (Id.) 13 When Dr. Gordon saw Plaintiff on May 11, 2012, Plaintiff again reported 14 back pain in his lower back with radiation to his upper back and neck, and in the 15 past five years, also radiating to both arms. (Id. at 245-248 and 372-374.) Plaintiff 16 reported that repetitive activities and “gripping” worsened his symptoms and 17 described the pain as an 8 of 10 without medication and as a 4 with medication. 18 He coped with the pain on a daily basis, but only took Percocet once every 2 19 weeks. He continued to take Prozac for depression, but reported his energy was 20 low. Dr. Gordon noted during the physical exam Plaintiff displayed full motor and 21 sensory abilities with no evidence of loss of sensation, weakness, or other 22 problem in any extremity or spinal area. (Id.) 23 The following month, Plaintiff was seen by Dr. Gordon again, at which time 24 he requested to be tested for fibromyalgia. (Id. at 242-244.) He reported “sharp 25 pain” on an intermittent basis in his lower back that was exacerbated by kneeling 26 down and reaching. He also complained of muscle spasms and numbness in his 27 upper arms and said his symptoms had worsened. He reported that Percocet 28 helped, but said he only took it when the pain was exacerbated. He had not 3 17CV226-AJB(JMA) 1 taken Baclofen. He had started a physical therapy regimen and asked if going to 2 the gym would create an issue with his application for disability benefits. His 3 physical exam showed that he had full strength in all of his extremities. (Id.) 4 During 2012, Dr. Gordon twice referred Plaintiff for imaging, including x- 5 rays and MRIs, of his thoracic and cervical spine. (Id. at 400-404.) The x-rays 6 showed mild multilevel degenerative disc disease in the thoracolumbar junction 7 and upper lumbar spine at Ll-L2. (Id. at 403-404.) The MRI of his cervical spine 8 indicated Plaintiff had straightening of the normal cervical lordosis with multilevel 9 cervical spondylosis, but no central spinal stenosis. Probable impingement of 10 multiple exiting nerve roots was detected, as well as a large syrinx within the 11 cervical spinal cord at the T1 and T2 levels. (Id.) The MRI of his thoracic spine 12 showed a broad-based disc bulge at T3-T4 with mild spondylosis. (Id. at 400- 13 402.) 14 When Dr. Gordon saw Plaintiff on September 18, 2012, Plaintiff rated his 15 chronic mid and upper back pain as a 7-8 out of 10 and reported that nothing 16 alleviated it. (Id. 303-305.) He also reported that when his back spasmed, he 17 experienced numbness and weakness in one or the other arm, lasting 5 minutes. 18 He had stopped attending physical therapy because “depression symptoms 19 kicked in, (and he) had no motivation to go.” The physical exam showed 20 tenderness to palpation to the upper thoracic paraspinal muscles on the right 21 side and that Plaintiff retained full strength in all upper extremities including 22 flexion, extension, and grip. (Id.) 23 On September 27, 2012, Camellia Clark, M.D. saw Plaintiff for a follow up 24 mental status exam. (Id. at 361-362.) At that time he reported he had not filled his 25 Trazodone prescription (for sleep) due to the expense. He reported he was tired, 26 was still in “lots of pain” and was angry about the inadequacies of social services, 27 including medical coverage. Dr. Clark explained that Plaintiff’s tiredness was 28 unlikely to improve without quality sleep and encouraged him to take the 4 17CV226-AJB(JMA) 1 Trazodone. She observed Plaintiff was cooperative with a good thought process 2 and appropriate judgment and insight. He had fair attention and concentration 3 with an irritable and depressed mood and showed normal thought content with 4 no suicidal or homicidal ideations and no auditory or visual hallucinations. (Id.) 5 On November 8, 2012, Plaintiff was assessed by Licensed Clinical Social 6 Worker Charissa Ruud, of the Chase Avenue facility, for moderate depressive 7 disorder. (Id. at 264-268.) He reported he had experienced depression symptoms 8 since his 20s. He suffered from domestic violence, child abuse and sexual abuse 9 as a child and had recently seen his house burn down, along with all his 10 possessions. LCSW Ruud noted Plaintiff had a depressed mood most days, 11 anhedonia, weight loss of 10-15 pounds without effort, sleep difficulties, fatigue, 12 low energy, psychomotor retardation, feelings of guilt and low self-esteem, 13 diminished concentration, and difficulty managing his anger. He reported that 14 day his pain was a 5 to 8 out of 10. He was taking Prozac and Gabapentin, but 15 still had not filled the Trazodone prescription. (Id.) 16 Plaintiff’s mental status exam showed that he was well orientated and 17 had normal thought process and thought content. (Id. at 267.) Ruud noted he had 18 an average intellect with a depressed mood and an inability to concentrate, and 19 demonstrated age appropriate judgment and insight. (Id.) When asked to identify 20 his strengths, Plaintiff responded he was “personable, analytical and a thinker.” 21 (Id. at 268.) 22 On March 4, 2013, Plaintiff again underwent MRIs of his thoracic and 23 cervical spine which showed little interval change and documented extensive 24 syringohydromyelia extending from approximately the C7-T1 level to the T6-T7 25 levels. The MRI of the cervical spine showed little interval change, large 26 cervicothoracic syrinx, multilevel mild spondylosis, no central canal stenosis, and 27 multilevel uncovertebral arthrosis and facet arthropathy with multilevel foraminal 28 stenosis distribution. (Id. at 285-288.) 5 17CV226-AJB(JMA) 1 Thereafter, he was referred by Dr. Gordon to neurosurgeon Tyrone Hardy, 2 M.D., who reviewed the MRI results and then saw Plaintiff on April 11, 2013. (Id. 3 at 280-284.) Plaintiff reported to Dr. Hardy that he had seen a number of 4 physicians in the past and on many occasions his symptoms were dismissed, 5 possibly as psychosomatic. He complained of some intermittent difficulty with 6 walking, but reported his symptoms were mainly located in his hands and arms, 7 were greater on the left side than the right, and were slowly worsening. At this 8 time he was taking Oxycodone for pain management. Dr. Hardy performed a 9 motor and sensory examination of Plaintiff’s upper extremities that showed some 10 minimal weakness of pronation and sublimation bilaterally of the hands, but 11 otherwise Plaintiff had full motor and sensory abilities with no evidence of loss of 12 sensation, weakness, or other problem in any extremity or spinal area. (Id.) 13 Dr. Hardy’s assessment of Plaintiff was that he primarily had a pain 14 syndrome intermittently with some tingling dysesthesias and Lhermitte-type 15 phenomenon as a result of syringomyelia of the cervical thoracic spinal cord. He 16 informed Plaintiff the treatment approach would be a drainage-type of procedure 17 which carries “significant risk and poor long-term prognosis.” He advised Plaintiff 18 to defer having any surgical intervention and be treated symptomatically for his 19 pain problem with regular visits. Plaintiff was also cautioned to limit any kind of 20 traumatic activity that could worsen his condition. (Id. at 282.) 21 When he next saw Dr. Gordon, on June 18, 2013, Plaintiff rated his pain at 22 an 8 to 9 out of 10, and explained he had decided to wait on surgery due to Dr. 23 Hardy’s prognosis. (Id. at 295-296; 351-352.) He had not filled the prescription for 24 Gabapentin and asked for an Oxycodone prescription, which he had received 25 during a recent hospitalization and he said “made him feel rest.” (Id.) 26 Plaintiff was seen by Dr. Gordon twice more that year. During both visits he 27 reported his pain had worsened to a 10 without medication, and improved to a 5- 28 7 of 10 with medication (Vicodin) or on a good day. (Id. at 338, 348.) He reported 6 17CV226-AJB(JMA) 1 he tried taking Gabapentin, but stopped because it elevated his heart rate. (Id. at 2 348.) He reported his pain affected his ability to perform both active and inactive 3 daily living activities, but with medication he was able to get a good night of rest 4 and be more mobile during the day. (Id. at 338, 348.) He also reported he was 5 taking steps to obtain a disabled person placard from the DMV. (Id. at 338) 6 On November 8, 2013, Joe Sepulveda, M.D. conducted a psychiatric 7 evaluation of Plaintiff. (Id. at 341-343.) Plaintiff informed Dr. Sepulveda that 8 medications he had tried in the past had not completely resolved his symptoms 9 of depression. He reported experiencing anhedonia, hypersomnia, poor 10 concentration, lack of pleasure, poor energy, and “chronic poorly controlled 11 musculoskeletal and neuropathic pain.” The mental status exam showed Plaintiff 12 had appropriate judgment and insight with a good memory. It also showed he 13 had an appropriate fund of general knowledge and appropriate attention span 14 and ability to concentrate. (Id.) 15 Dr. Sepulveda linked Plaintiff’s inability to obtain complete relief of his 16 depressive symptoms through medication with his uncontrolled chronic pain, 17 opining “given chronic poorly controlled pain it is very likely that despite 18 psychotropic interventions that [Plaintiff] will continue to have residual symptoms 19 of poor mood.” (Id. at 343.) He increased Plaintiff’s dosage of Prozac and 20 strongly recommended Plaintiff undergo “ongoing therapy for depression and for 21 development of relaxation and coping mechanisms for depressive symptoms due 22 to chronic pain.” (Id.) 23 In 2014, Plaintiff began receiving treatment at the Logan Heights Family 24 Health Center because he was homeless and did not have transportation to get 25 to the Chase Avenue location. (Id. at 426.) On June 4, 2014, he saw Tania 26 Media, M.D. in order to refill his medications. He reported he had been out of his 27 medication, including his pain medication, for a couple of months. He was not 28 depressed and was observed to be “happy and comfortable,” but he rated his 7 17CV226-AJB(JMA) 1 pain at a 9 out of 10. (Id.) His prescriptions for his anti-depression and 2 hypertension medications were refilled, but his prescription for the pain reliever 3 Norco was not. (Id. at 427.) 4 On July 8, 2014, he followed up with Ebrahim Mohamedy M.D. for pain 5 management and hypertension. (Id. at 424.) Plaintiff reported that Norco alone 6 did not alleviate his back pain. He had visited a pain specialist, but refused to 7 refill his prescription for pain medication. He rated his pain that day as a 6 of 10. 8 (Id.) When he returned to the Logan Heights facility on September 10, 2014, he 9 indicated he didn’t want to return to the Chase location because he had concerns 10 about “how Dr. Gordon has been documenting [his] problems.” (Id. at 419.) He 11 was referred for a pain management consultation. (Id. at 420.) 12 On November 12, 2014, Plaintiff returned to the Logan Heights facility, 13 where he was seen by Tsuh-Yin Chen, M.D. (Id. at 416-418.) Dr. Chen reported 14 that Plaintiff demanded pain medication be dispensed to him immediately 15 because he was in “a lot of pain.” When Dr. Chen offered to refill his NSAIDS and 16 explained that he needed to see the pain management specialist for pain 17 medication, he began yelling “I need somebody who is competent and can give 18 me my pain medicine!” When Plaintiff refused to calm down, Dr. Chen requested 19 the Associate Director join her in the exam room because she felt frightened by 20 Plaintiff. The Associate Director then informed Plaintiff that Family Health 21 Centers of San Diego could no longer treat Plaintiff for his pain because he had 22 gone to outside providers for narcotics. Plaintiff denied going anywhere else, but 23 indicated he understood he was being discharged from pain management at 24 Family Health Centers of San Diego and requested a refill of NSAIDS while he 25 was waiting to see the pain management specialist. (Id.) Plaintiff continued to be 26 seen at Family Health Centers of San Diego for his depression and other health 27 issues. 28 // 8 17CV226-AJB(JMA) 1 B. 2 Consultative State Agency Physician On July 10, 2013, at the request of Defendant, Mounir Soliman M.D. of 3 Seagate Medical Group, prepared a summary report after conducting a 4 psychological consultative examination of Plaintiff and reviewing records 5 provided by Defendant. (Id. at 328-332.) Dr. Soliman found Plaintiff to be 6 pleasant and cooperative, groomed and appropriately dressed (Id. at 328.) 7 Plaintiff informed Dr. Soliman that he was disabled due to "depression, pain.” 8 (Id.) Plaintiff reported his daily living activities included cooking his own meals, 9 cleaning the house, shopping, and running errands, and that he was able to 10 handle his own finances and personal hygiene (Id. at 330.) 11 Plaintiff reported he had difficulty concentrating, but had no problem getting 12 along with family, friends, and neighbors. (Id.) His mental status exam showed 13 that he had logical, coherent, and goal directed thoughts. He was well orientated 14 but showed a poor memory and was unable to count by sevens. (Id.) He showed 15 good abstract thinking and was able to interpret a proverb. He also had good 16 insight and judgment and had no looseness of associations. (Id. at 331.) His 17 mood was depressed. (Id.) 18 Noting Plaintiff had a significant history of depression and back pain, Dr. 19 Soliman opined "[f]rom a psychiatric standpoint, [Plaintiff] is able to understand, 20 carry out, and remember simple and complex instructions. [Plaintiff] is able to 21 interact with co-workers, supervisors, and the general public. [Plaintiff] is able to 22 withstand the stress and pressures associated with an eight-hour workday, and 23 day-to-day activities." (Id. at 332.) Dr. Soliman deferred evaluation of Plaintiff’s 24 physical condition to the appropriate specialty. (Id.) 25 C. 26 Non-Examining State Agency Physicians State agency physicians Jo McClain, PsyD and Patricia Staehr, M.D. 27 prepared a Disability Determination Explanation on July 18, 2013, at the initial 28 level of review of Plaintiff’s disability benefits application. (Id. at 52-65.) That 9 17CV226-AJB(JMA) 1 report was prepared after a review of Plaintiff’s medical history and Dr. Soliman’s 2 findings, and concluded Plaintiff had a spinal disorder and an affective disorder 3 that rated as severe impairments. (Id. at 58.) It was determined that Plaintiff did 4 not meet the "A" or "C' criteria, meaning his depression did not precisely satisfy 5 the diagnostic criteria. The evaluation concluded Plaintiff had no restrictions on 6 activities of daily living, mild difficulty in maintaining social functioning, and 7 moderate difficulty in maintaining concentration, persistence or pace. No 8 episodes of decompensation of an extended duration were noted. (Id.) Plaintiff 9 was assessed to be “partially credible” with respect to his statements regarding 10 his symptoms. (Id. at 59.) Specifically, the state agency physician remarked: 11 The medical evidence shows that [Plaintiff] has received treatment for back pain. However, his exams show him to have 5/5 strength throughout and he has full range of motion in his lumbar spine. The medical evidence also shows that [Plaintiff] has been diagnosed with a depressive disorder and has received treatment for this condition. At an exam in 7/2013, [Plaintiff] was noted to be unable to perform serial 7's and was only able to remember 1/3 objects after a period of time. He reports that he is able to cook, clean, shop, take care of personal hygiene items and financial responsibilities. [Plaintiff] is partially credible because the objective evidence does not fully support the limitations that are described by [Plaintiff]. 12 13 14 15 16 17 18 19 20 (Id.) It was determined Plaintiff could occasionally lift and carry 20 pounds and 21 frequently carry 10 pounds. (Id. at 59-60.) He could sit for six hours in an eight- 22 hour workday and stand for six hours in an eight-hour workday. His limitations on 23 pushing or pulling were the same as on the ability to lift and carry. He could 24 frequently climb ramps and stairs and could occasionally climb ladders, ropes, or 25 scaffolds. He could occasionally stoop and crawl with no limitations on balancing, 26 kneeling, or crouching. (Id.) The state agency evaluation further concluded 27 Plaintiff would have moderate limitations in remembering detailed instructions, 28 // 10 17CV226-AJB(JMA) 1 but would be capable of handling simple one and two-step instructions. (Id. at 2 62.) 3 State agency physicians V. Michelotti, M.D. and R. Paxton, M.D. reviewed 4 Plaintiff’s medical history and prepared an evaluation in the fall of 2013, at the 5 reconsideration level of Plaintiff’s application for disability benefits. (Id. at 67-81.) 6 Plaintiff was found to have the same exertional limitations that were identified at 7 the initial level, but his postural limitations were reduced to never climbing 8 ladders, ropes, or scaffolds. The assessment of his abilities in all other areas, 9 mental and physical, remained the same. (Id. at 73-79.) 10 11 III. PLAINTIFF’S TESTIMONY Plaintiff testified during the hearing before ALJ Dietterle. (Id. at 32-49.) He 12 completed high school and “some college.” (Id. at 34.) His last job was as a 13 production floor laborer with Trendes Corporation. (Id.) He described that job as 14 being “extreme physical work,” which included driving a truck, operating a fork lift, 15 working a manufacture assembly line and heavy lifting (estimating the weight to 16 be over 200 pounds). (Id. at 34-35.) He last worked in 2009, when he was laid 17 off. (Id. at 35.) At the time, his employer had been trying to terminate him 18 because his depression was negatively affecting his job performance. (Id.) 19 He testified he has been homeless since he was laid off. (Id. at 37.) He 20 sleeps on other people’s couches, uses an EBT card for groceries, and relies on 21 public transportation. (Id. at 37-39.) He does not like being around others due to 22 his depression. (Id.) He thinks the biggest impediment to him working again is 23 having to be around people and lifting. (Id. at 44.) He was fired from a number of 24 jobs in the past, before he received his diagnosis. (Id. at 44-45.) 25 The ALJ inquired about the cane Plaintiff brought to the hearing. Plaintiff 26 said it was not prescribed, but he uses it because his back occasionally “locks 27 up,” meaning it becomes tremendously painful and he is unable to move until the 28 pain subsides on its own. (Id. at 40-41.) He has opted for pain management over 11 17CV226-AJB(JMA) 1 surgery, due to the risk of paralysis associated with surgery. (Id. at 41-42.) He 2 reported he was seeing a new physician, Dr. Steiner, who prescribes medication 3 that helps him manage his back pain. (Id. at 41.) He also wears a splint on his 4 right wrist and a knee brace because his “kneecaps are weakening up,” and he 5 sometimes will get a “nerve jolt” while walking that will cause him to collapse. (Id. 6 at 48.) 7 With respect to his physical abilities, he stated he can sit or stand for 30 to 8 45 minutes at a time and can walk for less than a half mile. (Id. at 42.) He used 9 to work out, but the pain made that unmanageable. (Id. at 44.) 10 He testified he had been taking Prozac for depression, but as of the prior 11 week he started taking Mirtazapine at the advice of a new physician. (Id. at 36- 12 37.) He reported the medications help make the depression manageable. (Id. at 13 44.) He has difficulty concentrating and is forgetful. (Id. at 46.) 14 IV. After considering the record, ALJ Dietterle made the following findings: 15 16 17 THE ALJ DECISION .... 2. The claimant did not engage in substantial gainful activity during the 18 period from his alleged onset date of August 1, 2009 through his date last 19 insured of March 31, 2014. [citations omitted]. 20 .... 21 3. Through the date last insured, the claimant had the following severe 22 impairments: thoracic spondylosis; cerviclgia; degenerative disc disease of the 23 lumbar spine; depressive disorder without psychosis; and chronic pain syndrome 24 [citation omitted]. 25 .... 26 4. Through the date last insured, the claimant did not have an 27 impairment or combination of impairments that met or medically equaled the 28 severity of one of the listed impairments in [the Social Security regulations]. 12 17CV226-AJB(JMA) 1 .... 2 5. After careful consideration of the entire record, the undersigned finds 3 that, through the date last insured, the claimant has the residual functional 4 capacity to perform light work as defined in 20 C.F.R 404.1567(b) except the 5 claimant is limited to frequently climbing ramps but can never climb ladders, 6 ropes, or scaffolds. He can frequently balance, kneel, and crouch. He can 7 occasionally stoop and crawl. He can have no exposure to unprotected heights 8 or dangerous moving machinery. He is also limited to simple one and two step 9 instruction. 10 .... 11 6. 12 Through the date last insured, the claimant was unable to perform any past relevant work [citation omitted]. 13 .... 14 10. Through the date last insured, considering the claimant’s age, 15 education, work experience, and residual functional capacity, there were jobs 16 that existed in significant numbers in the national economy that the claimant 17 could have performed [citations omitted]. 18 .... 19 11. The claimant was not under a disability, as defined in the Social 20 Security Act, at any time from August 1, 2009, the alleged onset date, through 21 March 31, 2014, the date last insured. [citations omitted]. 22 (Id. at 13-25.) 23 V. STANDARD OF REVIEW 24 To qualify for disability benefits under the Social Security Act, an applicant 25 must show: (1) he or she suffers from a medically determinable impairment that 26 can be expected to result in death or that has lasted or can be expected to last 27 for a continuous period of twelve months or more, and (2) the impairment renders 28 the applicant incapable of performing the work that he or she previously 13 17CV226-AJB(JMA) 1 performed or any other substantially gainful employment that exists in the 2 national economy. See 42 U.S.C. § 423(d)(1)(A), (2)(A). An applicant must meet 3 both requirements to be “disabled.” Id. Further, the applicant bears the burden of 4 proving he or she was either permanently disabled or subject to a condition 5 which became so severe as to disable the applicant prior to the date upon which 6 his or her disability insured status expired. Johnson v. Shalala, 60 F.3d 1428, 7 1432 (9th Cir. 1995). 8 A. 9 Sequential Evaluation of Impairments The Social Security Regulations outline a five-step process to determine 10 whether an applicant is "disabled." The five steps are as follows: (1) Whether the 11 claimant is presently working in any substantial gainful activity. If so, the claimant 12 is not disabled. If not, the evaluation proceeds to step two. (2) Whether the 13 claimant’s impairment is severe. If not, the claimant is not disabled. If so, the 14 evaluation proceeds to step three. (3) Whether the impairment meets or equals a 15 specific impairment listed in the Listing of Impairments. If so, the claimant is 16 disabled. If not, the evaluation proceeds to step four. (4) Whether the claimant is 17 able to do any work he has done in the past. If so, the claimant is not disabled. If 18 not, the evaluation continues to step five. (5) Whether the claimant is able to do 19 any other work. If not, the claimant is disabled. Conversely, if the Commissioner 20 can establish there are a significant number of jobs in the national economy the 21 claimant can do, the claimant is not disabled. 20 C.F.R. § 404.1520; see also 22 Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999). 23 B. Judicial Review 24 Sections 205(g) and 1631(c)(3) of the Social Security Act allow 25 unsuccessful applicants to seek judicial review of the Commissioner's final 26 agency decision. 42 U.S.C.A. §§ 405(g), 1383(c)(3). The scope of judicial review 27 is limited. The Commissioner’s final decision should not be disturbed unless: (1) 28 The ALJ's findings are based on legal error or (2) are not supported by 14 17CV226-AJB(JMA) 1 substantial evidence in the record as a whole. Schneider v. Comm’r Soc. Sec. 2 Admin., 223 F.3d 968, 973 (9th Cir. 2000); Garrison v. Colvin, 759 F.3d 995, 3 1009 (9th Cir. 2014). Substantial evidence means “more than a mere scintilla but 4 less than a preponderance; it is such relevant evidence as a reasonable mind 5 might accept as adequate to support a conclusion.” Andrews v. Shalala, 53 F.3d 6 1035, 1039 (9th Cir. 1995). The Court must consider the record as a whole, 7 weighing both the evidence that supports and detracts from the Commissioner’s 8 conclusion. See Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001); 9 Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988). 10 “The ALJ is responsible for determining credibility, resolving conflicts in medical 11 testimony, and for resolving ambiguities.” Vasquez v. Astrue, 572 F.3d 586, 591 12 (9th Cir. 2009) (citing Andrews, 53 F.3d at 1039). Where the evidence is 13 susceptible to more than one rational interpretation, the ALJ’s decision must be 14 affirmed. Id. at 591 (citation and quotations omitted). Section 405(g) permits this Court to enter a judgment affirming, modifying, 15 16 or reversing the Commissioner’s decision. 42 U.S.C.A. § 405(g). The matter may 17 also be remanded to the SSA for further proceedings. Id. 18 VI. 19 DISCUSSION Plaintiff contends the ALJ committed error by failing to articulate sufficient 20 reasons for discrediting his symptom testimony and finding him partially credible. 21 (Pl.’s Mem. at 5-12.) In determining a claimant’s residual functional capacity at 22 steps four and five of the sequential evaluation process, the ALJ must consider 23 all relevant evidence in the record, including medical records, lay evidence, and 24 “the effects of symptoms, including pain, that are reasonably attributed to a 25 medically determinable impairment.” See Robbins v. Soc. Sec. Admin., 466 F.3d 26 880, 883 (9th Cir. 2006) (citing SSR 96-8p, 1996 WL 374184, at *5). “Careful 27 consideration must be given to any available information about symptoms 28 because subjective descriptions may indicate more severe limitations or 15 17CV226-AJB(JMA) 1 restrictions than can be shown by objective medical evidence alone.” SSR 96-8p, 2 1996 WL 374184, at *5; see also 20 C.F.R. § 404.1529(c)(3). When considering 3 a claimant’s subjective symptom testimony, “if the record establishes the 4 existence of a medically determinable impairment that could reasonably give rise 5 to the reported symptoms, an ALJ must make a finding as to the credibility of the 6 claimant’s statements about the symptoms and their functional effect.” Robbins, 7 466 F.3d at 883 (citing SSR 96-7p, 1996 WL 374186, at *1). “While an ALJ may 8 find testimony not credible in part or in whole, he or she may not disregard it 9 solely because it is not substantiated affirmatively by objective evidence.” Id. 10 Rather, unless the ALJ makes a finding of malingering, an ALJ may only find a 11 claimant not credible by making specific findings as to credibility and stating clear 12 and convincing reasons to discount the claimant’s subjective symptom testimony. 13 Id.; see also Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007); 14 Garrison, 759 F.3d at 1014-15. The ALJ stated that he found Plaintiff’s statements concerning the intensity, 15 16 persistence, and limiting effects of his symptoms not entirely credible for the 17 following reasons: 1) Plaintiff’s allegations of disability were not fully supported by 18 the treatment record; 2) he was noncompliant with prescribed medication and 19 combative with his medical providers; and 3) he made inconsistent statements 20 regarding his symptoms. (Admin. R. 21-22.) 21 A. 22 23 The Record Supports the ALJ’s Determination that Plaintiff’s Allegations of Disability were not Fully Supported With respect to the ALJ’s first stated reason for finding Plaintiff to be 24 partially credible, although an ALJ may not disregard a claimant’s testimony 25 “solely because it is not substantiated affirmatively by objective medical 26 evidence.” See Robbins, 466 F.3d at 883 [emphasis added]), the ALJ may 27 consider whether the alleged symptoms are consistent with the medical evidence 28 as one factor in his evaluation. See Lingenfelter, 504 F.3d at 1040; see also 16 17CV226-AJB(JMA) 1 Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (“Although lack of medical 2 evidence cannot form the sole basis for discounting pain testimony, it is a factor 3 that the ALJ can consider in his credibility analysis.”) 4 When evaluating Plaintiff’s complaints of pain and back spasms, the ALJ 5 considered that during multiple examinations by his treating physicians, Plaintiff 6 demonstrated full strength in all his extremities, no atrophy, and no evidence of 7 loss of sensation, weakness, or other problem in any extremity or spinal area. (Id. 8 at 19-20, citing Admin. R. 239, 242, 245, 282.) For example, the ALJ observed 9 that on May 11, 2012, Dr. Gordon conducted a physical exam that showed no 10 joint swelling or atrophy and full strength in all his extremities. (Id. at 20, 245.) 11 On June 18, 2012, Dr. Gordon observed Plaintiff had full strength in all of his 12 extremities and noted Plaintiff’s x-rays showed mild multilevel degenerative disc 13 disease in the thoracolumbar junction and upper lumbar spine at Ll-L2, and that 14 his subsequent physical exam showed that he had full strength in all of his 15 extremities. (Id. at 20, 242.) Then, at his next exam on September 18, 2012, Dr. 16 Gordon indicated Plaintiff showed tenderness to palpation to the upper thoracic 17 paraspinal muscles on the right side, but that he retained full strength in all upper 18 extremities including flexion, extension, and grip. (Id. at 20, 239.) The ALJ also 19 observed that the following spring, when Dr. Hardy assessed Plaintiff, Plaintiff 20 had full motor and sensory abilities with no evidence of loss of sensation, 21 weakness, or other problem in any extremity or spinal area. (Id. at 20, 282.) 22 Likewise, when evaluating the effects of Plaintiff’s depression, the ALJ 23 considered the fact that Plaintiff’s treating mental health providers’ treatment 24 notes also indicated relatively normal clinical findings. (Id. at 18-19.) Specifically, 25 the ALJ noted Dr. Clark found Plaintiff to be cooperative with a good thought 26 process and appropriate judgment and insight, fair attention and concentration, 27 normal thought content, and without hallucinations, when she examined him on 28 September 27, 2012. (Id. at 18, 361.) LCSW Ruud’s notes from the mental health 17 17CV226-AJB(JMA) 1 assessment she conducted on November 8, 2012, indicate Plaintiff was unable 2 to concentrate, but was well-orientated, cooperative, had a normal thought 3 process and thought content, and average intellect. (Id. at 19, 267.) On August 4 26, 2013, Dr. Gordon noted Plaintiff did not display any symptoms of depression 5 or psychomotor agitation. (Id. at 19, 348.) Later that year, on November 8, 2013, 6 Plaintiff was seen by Dr. Sepulveda, who found Plaintiff had appropriate 7 judgment and insight with a good memory, appropriate fund of general 8 knowledge, and appropriate attention span and ability to concentrate. (Id. at 19, 9 342.) Furthermore, the state agency physician’s notes from his examination of 10 Plaintiff are consistent with the observations of Plaintiff’s treating physicians. Dr. 11 Soliman found Plaintiff to be pleasant, cooperative and appropriately dressed 12 and determined that Plaintiff had a poor memory, but logical, coherent, and goal- 13 directed thoughts, was well-orientated, and had good insight and judgment. (Id. 14 at 19, 328, 330-31.) Given the observations of multiple treating professionals, as summarized 15 16 above and as corroborated by Dr. Soliman, the ALJ’s determination the medical 17 record does not support Plaintiff’s allegations of disability is a clear and 18 convincing reason the ALJ could properly use as a factor in discounting Plaintiff’s 19 subjective symptom testimony. Robbins, 466 F.3d at 883. 20 B. 21 22 The Record Supports the ALJ’s Determination that Plaintiff was not Compliant with his Medications The ALJ also stated he found Plaintiff’s subjective symptom testimony to be 23 partially credible because Plaintiff was not compliant in taking prescribed 24 medication and was combative with medical providers. (Id. at 19-20, 21.) It is 25 unclear how Plaintiff’s combativeness would be a determining factor for purposes 26 of his credibility, but an ALJ may certainly consider the effectiveness of 27 medication a claimant has taken when considering the severity and limiting 28 effects of an impairment. See 20 C.F.R. § 404.1529(c)(4)(iv). Medical 18 17CV226-AJB(JMA) 1 improvement from treatment supports an adverse inference as to the credibility of 2 a claim of ongoing disability. See Morgan v. Comm'r of Soc. Sec., 169 F.3d 595, 3 599 (9th Cir. 1999); See also 20 C.F.R. § 404.1530(a), (b) (“If you do not follow 4 the prescribed treatment without a good reason, we will not find you disabled”). 5 The record is replete with instances where Plaintiff reported medication improved 6 his pain significantly. [see e.g. Admin. R. at 242 (reported “Percocet helps”); Id. 7 at 245 (pain decreased with medications from 8/10 to 4/10); Id. at 249 (pain 8 decreased with medications from 7-10/10 to 3-4/10); Id. at 315 (pain decreased 9 with medications from 8/10 to 4/10); and Id. at 348 (pain decreased with 10 medications from 10/10 to 5-7/10)]. Plaintiff also reported to Dr. Gordon that his 11 goal of 50% improvement in pain had been met. (Id. at 349); See Warre v. 12 Comm’r of Soc. Sec., 439 F.3d 1001, 1006 (9th Cir. 2006) (“[i]mpairments that 13 can be controlled effectively with medication are not disabling for the purpose of 14 considering eligibility for SSI benefits.”). 15 Nonetheless, despite the fact the medication offered him pain relief, Plaintiff 16 frequently did not take it, or took it less often than prescribed. The record 17 indicates Plaintiff generally took pain management medication about once or 18 twice a week, which Plaintiff argues is not indicative of a pattern of non- 19 compliance, but rather is consistent with his doctor’s orders to take the 20 medication “as needed.” (Pl. Mem. at 8.) The record, however, contains evidence 21 indicating Plaintiff did not take his medications “as needed” or as prescribed, as 22 observed by several of his treating physicians. For example, the ALJ noted that 23 when Dr. Hagerich saw Plaintiff on May 10, 2012, she observed, and Plaintiff 24 confirmed, he had run out of medication well before that date. (Admin. R. at 19, 25 316). Concerns about Plaintiff’s failure to take his pain medication were also 26 raised by Dr. Sepulveda, who opined that Plaintiff’s “uncontrolled chronic pain” 27 was linked to his inability to obtain complete relief of his depressive symptoms 28 through medication. (Id. at 343.) When she saw Plaintiff on June 4, 2014, Dr. 19 17CV226-AJB(JMA) 1 Media noted Plaintiff had been out of all his medications, including pain 2 medication, for a couple of months. (Id. at 426.) 3 Moreover, Plaintiff was non-compliant with taking other medications. When 4 he saw Dr. Clark on September 27, 2012, he reported he had not filled his 5 prescription for Trazodone and that he was tired and in “lots of pain.” (Id. at 361.) 6 She explained that his tiredness was unlikely to improve without quality sleep 7 and encouraged him to take the prescription; however, when he saw LCSW 8 Ruud a few weeks later, on November 8, 2012, he still had not filled the 9 prescription. (Id. at 361, 266.) He also reported to Dr. Gordon that he had not 10 filled a prescription for Bacoflen. (Id. at 242.) Given the observations by Plaintiff’s treating physicians, and looking at the 11 12 record as a whole, the ALJ’s conclusion that Plaintiff was non-compliant with 13 taking medication is rational. Where, as is the case here, evidence is susceptible 14 to more than one rational interpretation, the ALJ’s decision must be affirmed. 15 Vasquez, 572 F.3d at 591 (citing Andrews, 53 F.3d at 1039). The ALJ’s 16 determination that Plaintiff was non-compliant with his use of prescribed 17 medication is, therefore, a clear and convincing reason for discounting Plaintiff’s 18 subjective symptom testimony. 19 C. 20 21 The Record Supports the ALJ’s Determination that Plaintiff Made Inconsistent Statements Regarding His Symptoms The third reason articulated by the ALJ as his basis for finding Plaintiff to be 22 partially credible was that Plaintiff made inconsistent statements regarding his 23 symptoms. (Admin. R. 16, 19, 21-22). Inconsistent statements and testimony can 24 bear upon a claimant’s credibility. See, e.g., Verduzco v. Apfel, 188 F.3d 1087, 25 1090 (9th Cir. 1999); SSR 96-7p “One strong indication of the credibility of an 26 individual’s statements is their consistency, both internally and with other 27 information in the case record;” See also Molina v. Astrue, 674 F.3d 1104, 1112 28 (9th Cir. 2012) (“ALJ may consider inconsistencies either in the claimant’s 20 17CV226-AJB(JMA) 1 testimony or between the testimony and the claimant’s conduct”). Here, Plaintiff 2 contends the ALJ failed to identify what the inconsistencies were; however, the 3 ALJ specifically noted that Plaintiff’s reporting to the State agency, which the ALJ 4 reviewed in his discussion of the “B” criteria at step three of the sequential 5 analysis, was “vastly different than what he reported during his consultative 6 examination.” (Admin. R. at 16, 21-22.) As the ALJ explained, Plaintiff reported to 7 the State agency that he needed to sleep or lie down all day, did not spend time 8 with others, and was not able to get along with authority figures. (Id. at 16, 188, 9 191-93.) In comparison, the ALJ considered that Plaintiff reported to Dr. Soliman 10 his daily activities included a variety of activities, including cooking his own 11 meals, cleaning the house, shopping, and running errands. (Id. at 19, 330.) The 12 ALJ also considered that Plaintiff told Dr. Soliman that he lives with friends from 13 one place to another and he had no problem getting along with family, friends, 14 and neighbors (Id.) 15 Plaintiff contends his statements about getting along well with others and 16 wanting to be isolated are not inconsistent.1 2 (Pl. Mem. at 10.) As addressed 17 above, Plaintiff’s description of his sociability was only one of several 18 inconsistencies the ALJ identified. The ALJ also observed that Plaintiff reported 19 to the State agency that he needed to sleep or lie down all day, whereas he 20 21 22 23 24 25 26 27 28 1 Plaintiff takes issue with Dr. Soliman’s report because it incorrectly identities that Plaintiff completed his college education. (Pl.’s Mem. at 10.) Regardless of the reason for the incorrect reporting, it is inconsequential because the ALJ did not rely on Plaintiff’s completion of college as a basis for rejecting his subjective complaints. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (an error is harmless when “it is clear from the record that the . . . error was inconsequential to the ultimate nondisability determination”). 2 Plaintiff also contends the ALJ improperly considered that Plaintiff worked out at the gym. (Pl. Mem. at 6-7.) When summarizing Plaintiff’s medical history, the ALJ noted that Plaintiff reported to Dr. Gordon he exercised at the gym; however, the ALJ did not identify this statement as being an inconsistency or a reason for discounting Plaintiff’s credibility. (Admin. R. at 20.) 21 17CV226-AJB(JMA) 1 reported to Dr. Soliman that he partook in a variety of activities on a daily basis, 2 such as cooking, housekeeping, shopping and running errands. (Id. at 16, 19, 3 188, 191-93, 330). 4 Moreover, when questioned by the ALJ at the hearing, Plaintiff testified that 5 having to be around people was one of his biggest impediments to returning to 6 work. (Id. at 44.) To the extent the evidence regarding Plaintiff’s social 7 functioning and daily activities is open to more than one interpretation, the Court 8 must defer to the ALJ’s interpretation, which was rational in consideration of the 9 record as a whole. The ALJ’s determination that Plaintiff made inconsistent 10 statements to the State agency and consultative examiner is, therefore, a clear 11 and convincing reason for discounting Plaintiff’s subjective symptom testimony. 12 VII. CONCLUSION In sum, an ALJ’s assessment of pain severity and claimant credibility is 13 14 entitled to “great weight.” Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989). 15 The Court concludes the ALJ articulated sufficient clear and convincing reasons 16 supported by substantial evidence to discount Plaintiff’s subjective pain 17 testimony. For the reasons set forth above, the Court recommends Plaintiff’s motion 18 19 for summary judgment be DENIED and Defendant’s motion for summary 20 judgment be GRANTED. 21 This report and recommendation will be submitted to the Honorable 22 Anthony J. Battaglia, United States District Judge assigned to this case, pursuant 23 to the provisions of 28 U.S.C. § 636(b)(1). Any party may file written objections 24 with the Court and serve a copy on all parties on or before February 16, 2018. 25 The document should be captioned “Objections to Report and 26 Recommendation.” Any reply to the Objections shall be served and filed on or 27 before February 23, 2018. The parties are advised that failure to file objections 28 // 22 17CV226-AJB(JMA) 1 within the specified time may waive the right to appeal the district court’s order. 2 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 Dated: February 1, 2018 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23 17CV226-AJB(JMA)

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