Niskar v. Berryhill

Filing 26

ORDER denying 19 Motion to Remand ; ORDER granting 20 Countermotion to Affirm the Agency Decision; ORDER adopting 23 Report and Recommendation; Signed by Judge James C. Mahan on 8/15/2019. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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MICHAEL NISKAR,

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Plaintiff(s),

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Case No. 2:17-CV-2732 JCM (DJA)
ORDER

v.
NANCY A. BERRYHILL,

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Defendant(s).

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Presently before the court is Magistrate Judge Hoffman’s report and recommendation

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(“R&R”). (ECF No. 23). Plaintiff Niskar (“plaintiff”) filed an objection to the R&R. (ECF No.

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24). Berryhill (“defendant”) has not filed a response, and the time to do so has passed.

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Also before the court is plaintiff’s motion to remand. (ECF No. 19). Defendant filed a

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response to plaintiff’s motion to remand and a countermotion to affirm the agency decision,

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which are identical. (ECF Nos. 20, 22).

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I.

Facts

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The parties do not object to the factual presentation in the R&R. Therefore, the court

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adopts the factual representation in the R&R and will detail factual and procedural background in

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the discussion section of this order as necessary to explain the court’s holding.

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II.

Legal Standard

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A party may file specific written objections to the findings and recommendations of a

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United States magistrate judge made pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B);

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LR IB 3-2. Where a party timely objects to a magistrate judge’s report and recommendation, the

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court is required to “make a de novo determination of those portions of the [report and

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recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). The court “may accept,

James C. Mahan
U.S. District Judge

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reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.”

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Id.

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Pursuant to Local Rule IB 3-2(a), a party may object to the report and recommendation of

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a magistrate judge within fourteen (14) days from the date of service of the findings and

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recommendations. Similarly, Local Rule 7-2 provides that a party must file an opposition to a

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motion within fourteen (14) days after service of the motion.

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III.

Discussion

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Magistrate Judge Hoffman’s R&R holds that the administrative law judge (“ALJ”) gave

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clear and convincing reasons (1) to give little weight to the opinions of Dr. Grover and Dr.

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Kaplan and (2) for rejecting the plaintiff’s pain and symptoms testimony. (ECF No. 23 at 9–11).

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Plaintiff’s objection pertains only to the latter determination. (See ECF No. 24). Thus, the court

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will review only the decision regarding plaintiff’s pain and symptoms testimony.

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Plaintiff complains of “excess pain,” which “is, by definition, pain that is unsupported by

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objective medical findings.” Cotton v. Bowen, 799 F.2d 1403, 1407. Disability benefits cannot

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be granted solely based on a claimant’s subjective complaints. See 20 C.F.R. § 404.1529(a)

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(“statements about your pain or other symptoms will not alone establish that you are disabled”).

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However, “so long as the pain is associated with a clinically demonstrated impairment, credible

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pain testimony should contribute to a determination of disability.’” Bunnell v. Sullivan, 947 F.2d

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341, 345.

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impairment that is reasonably capable of causing the complained-of pain, then the ALJ may

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make a credibility determination. Id. at 346.

Accordingly, a claimant must first put forth evidence establishing a medical

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But “[a]n ALJ cannot be required to believe every allegation of disabling pain, or else

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disability benefits would be available for the asking, a result plainly contrary to [the Social

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Security Act].” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). Because the law “recognizes

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that ‘pain is subjective and not susceptible to measurement by reliable techniques,’” the ALJ

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must consider the available evidence and the record as a whole. Bunnell, 947 F.2d at 346. (citing

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SSR 88-13). The ALJ may then reject the claimant’s complaint only if the ALJ articulates “clear

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and convincing reasons” why the pain testimony is not credible. Burrell v. Colvin, 775 F.3d

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U.S. District Judge

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1133, 1136–37 (9th Cir. 2014). The ALJ’s reasoning must be specific, supported by the record,

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and consider the factors laid out in SSR 88-13, which include:

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1. The nature, location, onset, duration, frequency, radiation, and
intensity of any pain;

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2. Precipitating and aggravating factors (e.g., movement, activity,
environmental conditions);

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3. Type, dosage, effectiveness, and adverse side-effects of any pain
medication;

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4. Treatment, other than medication, for relief of pain;

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5. Functional restrictions; and

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6. The claimant’s daily activities.

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Bunnell, 947 F.2d 341, 346 (citing SSR 88-13).

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When an ALJ’s reasoning meets the requirements of Bunnell, the ALJ’s determination is

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entitled to great deference because “‘questions of credibility and resolution of conflicts in the

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testimony are functions solely’ for the agency.” Parra v. Astrue, 481 F.3d 742, 750 (9th Cir.

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2007) (quoting Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)).

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Here, the ALJ properly considered the plaintiff’s pain and symptom testimony within the

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context of the record as a whole.

Plaintiff contends that he suffers from a clinically

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demonstrated impairment which could reasonably cause the plaintiff’s subjective pain, which the

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ALJ acknowledged. (ECF No. 19 at 11–16). Indeed, the ALJ found that medically acceptable

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evidence determined the plaintiff had “severe impairments” including heart disease with a

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history of mitral valve replacement, degenerative disc disease of the lumbar spine and hernia.

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(AR at 27).1 But the ALJ determined that “[t]he claimant does not have an impairment or

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combination of impairments that meets or medically equals the severity of one of the listed

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impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.” Id. at 29. After consulting with a

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vocational expert, the ALJ determined that plaintiff’s residual functional capacity, age,

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James C. Mahan
U.S. District Judge

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For the sake of clarity, the court shall—consistent with plaintiff and Magistrate Judge
Hoffman—refer to the Administrative Record (ECF No. 16-1) as “AR.”
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education, and work experience allowed him to perform sedentary work “that exists in

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significant numbers in the national economy.” Id. at 34–35.

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The ALJ determined that the plaintiff’s testimony regarding his pain and other symptoms

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was not credible because it was contrary to the weight of the objective medical evidence. Id. at

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30. In particular, the opinions of Dr. Grover and Dr. Stuart conflicted with the testimony of Dr.

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Arnow and Dr. Cabaluna. Id. at 31–33. Both Dr. Arnow and Dr. Cabaluna found that plaintiff

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has a residual functional capacity that is less restricting than what the ALJ determined. Id. This

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residual functional capacity is supported by the plaintiff’s “somewhat normal level of daily

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activity and interaction,” which is, in turn, “inconsistent with [plaintiff’s] allegation of disabling

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impairments.” Id. at 33.

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Plaintiff’s objection posits that “the reliance on activities of daily living fails to constitute

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a clear and convincing reason supported by substantial evidence for rejecting [plaintiff’s]

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testimony on this record.” (ECF No. 24 at 6). Plaintiff’s argument overlooks the fact that the

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ALJ considered the plaintiff’s daily activities within the context of the objective medical

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evidence in the record. The ALJ concluded that “[t]he greater weight of the evidence reveals that

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the claimant has no limitation in activities of daily living, no limitation in social functioning, no

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limitation with concentration, persistence or pace and no episodes of decompensation which

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have been of extended duration.” (AR at 28 (emphasis added)).

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The medical evidence supports the ALJ’s findings. For instance, the ALJ indicated that

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“the record does not reveal the type of significant findings that would support [plaintiff’s]

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allegation of disabling back pain.” Id. at 31. The ALJ specifically references the fact that

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plaintiff’s degenerative disc disease symptoms were “managed well with medical management”;

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“his pain was moderately controlled by medication”; “his medications were effective, with no

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adverse side effects”; and his treatment for allegedly-disabling back pain “has been essentially

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routine and conservative in nature.” Id. at 31. The ALJ further noted that “despite [plaintiff’s]

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moderate to severe mitral valve regurgitation, the claimant’s symptoms were mild. He remained

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quite functional, and he reported doing well with minimal symptoms.”

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James C. Mahan
U.S. District Judge

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Id. at 28. After

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undergoing umbilical hernia repair, the plaintiff did not show or complain of further symptoms

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related to his hernia. Id. at 31.

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The ALJ considered the objective medical evidence and plaintiff’s past treatment records

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and concluded that “the objective findings in this case fail to provide strong support for the

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claimant’s allegations of disabling symptoms and limitations, and the medical findings do not

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support the existence of limitations greater than those found in this decision.” Id. at 30. The

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court agrees.

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Further, the record indicates that the plaintiff shirked medical advice or treatment.2 The

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ALJ noted that the plaintiff underwent successful mitral valve regurgitation in February 2015.

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Id. In March 2015, plaintiff left the hospital against medical advice after complaining of

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exertional dyspnea.

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recommended on multiple occasions to undergo surgery for his back on multiple occasions, he

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has failed to do so, seemingly without a good reason.”

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depression, the record indicates minimal treatment at best. Id. at 28.

Id.

“The record also reveals that even though [plaintiff] has been

Id. at 31.

Regarding plaintiff’s

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Plaintiff takes umbrage with the ALJ’s assessment of plaintiff’s mental health treatment

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(or lack thereof). (ECF No. 24 at 5–6). The ALJ indicated that the plaintiff alleged disabling

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depression, but the ALJ found that that “[t]he claimant’s medically determinable mental

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impairment of depression does not cause more than minimal limitation in the claimant’s ability

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to perform basic mental work activities and is therefore nonsevere.” (AR at 27). Plaintiff now

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argues that he simply presented evidence that he “suffered from a level of depression,” not that

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the depression is disabling on its own.3 (ECF No. 24 at 6). To the extent plaintiff contends his

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depression is nondisabling, plaintiff’s contention is entirely consistent with the ALJ’s findings.

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Notably, the plaintiff’s lack of treatment could properly be considered by the ALJ as a
credibility factor. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (“The ALJ may
consider . . . unexplained or inadequately explained failure to seek treatment or to follow a
prescribed course of treatment.” (citation omitted)).
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James C. Mahan
U.S. District Judge

The apparent inconsistency of plaintiff’s testimony regarding his depression can also be
considered a credibility factor. Tommasetti, 533 F.3d at 1039. This is particularly probative
considering plaintiff at one point “didn’t really answer about how [his depression] affects his
everyday day-to-day function . . . .” (AR at 286).
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If, on the other hand, the plaintiff contended that his depression was disabling at one time, the

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ALJ could properly consider the inconsistency when evaluating plaintiff’s credibility.

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Thus, the record and objective medical evidence supports the ALJ’s findings. The ALJ

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included and expressly referenced that evidence in his decision. As a result, the court finds that

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the ALJ presented clear and convincing reasons for why he discredited plaintiff’s pain and

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symptom testimony.
In sum, the court agrees with the ALJ and Judge Hoffman. The ALJ’s decision will be

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affirmed.

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IV.

Conclusion

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, and DECREED that Judge Hoffman’s R&R

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(ECF No. 23) be, and the same hereby is, ADOPTED.
IT IS FURTHER ORDERED that plaintiff’s pending motion to remand (ECF No. 19) be,
and the same hereby are, DENIED.
IT IS FURTHER ORDERED that defendant’s motion to affirm (ECF No. 22) be, and the
same hereby is, GRANTED.

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The clerk shall enter judgment accordingly and close the case.

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DATED August 15, 2019.

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UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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