Opinion
Case No. 5:19-cv-01794-MAA
12-03-2020
EDWARD P., Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security, Defendant.
MEMORANDUM DECISION AND ORDER AFFIRMING DECISION OF THE COMMISSIONER
On September 18, 2019, Plaintiff filed a Complaint seeking review of the Social Security Commissioner's partially favorable decision granting in part his application for Supplemental Security Income pursuant to Title XVI of the Social Security Act. This matter is fully briefed and ready for decision. For the reasons discussed below, the Commissioner's decision is affirmed, and this action is dismissed with prejudice.
PROCEDURAL HISTORY
On June 15, 2015, Plaintiff protectively filed an application for Supplemental Security Income, alleging disability beginning on November 4, 2014. (Administrative Record [AR] 27, 77, 90.) Plaintiff alleged disability due to "[l]ower back fracture, neck, and hip." (AR 67, 79.) After his application was denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR 27, 109-11.) At a hearing held on July 16, 2018, at which Plaintiff appeared with counsel, the ALJ heard testimony from Plaintiff and a vocational expert. (AR 47-66.)
In a decision issued on July 31, 2018, the ALJ issued a partially favorable decision. (AR 27-41.) The ALJ found that Plaintiff was disabled for the period beginning on November 4, 2014 through November 18, 2015, but was no longer disabled beginning on November 19, 2015 through the date of the ALJ's decision on July 31, 2018. (Id.)
For the period of disability from November 4, 2014 through November 18, 2015, the ALJ made the following findings pursuant to the Commissioner's evaluation of disability. (AR 30-35.) Plaintiff had not engaged in substantial gainful activity since his disability onset date of November 4, 2014. (AR 30.) He had severe impairments consisting of "status post motor vehicle accident with L1 compression fracture status post kyphoplasty; C6 vertebral body avulsion; bilateral pelvic fractures; right lateral orbital fracture; and lumbar, cervical, and thoracic problems/pain/radiculopathy (20 CFR 416.920(c))." (Id.) He did not have an impairment or combination of impairments that met or medically equaled the requirements of one of the impairments from the Commissioner's Listing of Impairments. (AR 31-32.) He had a residual functional capacity for light work with several additional limitations. (AR 32.) Plaintiff had no past relevant work. (AR 34.) He could not perform any other work in the national economy. (AR 34-35.) Thus, Plaintiff was disabled for that period. (AR 35.)
For his finding of non-disability beginning on November 19, 2015 to the date of his decision on July 31, 2018, the ALJ made the following findings pursuant to the Commissioner's evaluation of continuing disability. (AR 35-40.) Plaintiff did not have an impairment or combination of impairments that met or medically equaled the requirements of one of the impairments from the Commissioner's Listing of Impairments. (AR 35-36.) Medical improvement had occurred as of November 19, 2015. (AR 36.) The medical improvement was related to the ability to work because there had been an increase in Plaintiff's residual functional capacity. (AR 37.) Plaintiff had a residual functional capacity for light work with several additional limitations in standing, walking, postural activities, and environmental exposure. (AR 37.) Plaintiff had no past relevant work. (AR 39.) However, beginning on November 19, 2015, Plaintiff was able to perform other work in the national economy, in the light occupations of ticket seller, information clerk, marker, as well as in the sedentary occupations of foundation maker, eye glass polisher, and painter. (AR 40.) Thus, the ALJ found that Plaintiff's disability had ended on November 19, 2015 and that he did not become disabled again since that date. (AR 41.)
On August 8, 2019, the Appeals Council denied Plaintiff's request for review. (AR 1-4.) Thus, the ALJ's decision became the final decision of the Commissioner.
DISPUTED ISSUE
The parties' disputed issue is whether the ALJ properly considered Plaintiff's testimony. (ECF No. 23, Parties' Joint Stipulation ["Joint Stip."] at 6.)
STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), the Court reviews the Commissioner's final decision to determine whether the Commissioner's findings are supported by substantial evidence and whether the proper legal standards were applied. See Treichler v. Commissioner of Social Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Substantial evidence means "more than a mere scintilla" but less than a preponderance. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. The Court must review the record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion. Lingenfelter, 504 F.3d at 1035. Where evidence is susceptible of more than one rational interpretation, the Commissioner's interpretation must be upheld. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).
DISCUSSION
A. Legal Standard.
An ALJ must make two findings in assessing a claimant's pain or symptom allegations. SSR 16-3P, 2017 WL 5180304, at *3; Treichler, 775 F.3d at 1102. "First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged." Treichler, 775 F.3d at 1102 (citation omitted). "Second, if the claimant has produced that evidence, and the ALJ has not determined that the claimant is malingering, the ALJ must provide specific, clear and convincing reasons for rejecting the claimant's testimony regarding the severity of the claimant's symptoms" and those reasons must be supported by substantial evidence in the record. Id.; see also Marsh v. Colvin, 792 F.3d 1170, 1174 n.2 (9th Cir. 2015).
"A finding that a claimant's testimony is not credible 'must be sufficiently specific to allow a reviewing court to conclude the adjudicator rejected the claimant's testimony on permissible grounds and did not arbitrarily discredit a claimant's testimony regarding pain.'" Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (quoting Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991) (en banc)).
Beginning on March 28, 2016, SSR 16-3P rescinded and superseded the Commissioner's prior rulings as to how the Commissioner will evaluate a claimant's statements regarding the intensity, persistence, and limiting effects of symptoms in disability claims. See SSR 16-3P, 2017 WL 5180304, at *1. Because the ALJ's decision in this case was issued on July 31, 2018, it is governed by SSR 16-3P. See id. at *13 and n.27. In pertinent part, SSR 16-3P eliminated the use of the term "credibility" and clarified that the Commissioner's subjective symptom evaluation "is not an examination of an individual's character." SSR 16-3P, 2017 WL 5180304, at *2; see also Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017). These changes are largely stylistic, and the new rule is consistent in substance with Ninth Circuit precedent that existed before the effective date of SSR16-3P. See Trevizo, 871 F.3d at 678 n.5.
B. Background.
On November 4, 2014, Plaintiff was hit by a vehicle while he was riding a bicycle without a helmet. (AR 550.) He suffered injuries to the forehead, right lateral orbit, pelvis, and several places along the spine. (AR 452, 454-55, 457-60.) Plaintiff required two hospitalizations. (AR 514-15). Magnetic resonance imaging showed abnormalities of the cervical, thoracic, and lumbar spine. (AR 689-99.) After the hospitalizations, Plaintiff underwent treatments for back pain that included physical therapy (AR 660), a TENS unit (AR 687), kyphoplasty (AR 639-42), and epidural steroid injections (AR 739-44).
At the July 2018 administrative hearing, Plaintiff testified as follows about his functioning since the time of the accident to the time of the hearing:
He can sit in a car only "for so long until [his] back starts really acting up." (AR 54.) He turns his neck "a little bit slower than I used to." (Id.) He bends his hip more "slowly" than before. (Id.) He also has a "forget[s] a lot" of things. (Id.)
He can stand for 30 minutes to an hour at a time before needing to sit down. (AR 54-55.) He can sit for 30 minutes to an hour at a time, but perhaps for less time if he is sitting in a car with deep seats. (AR 55.) Lifting anything weighing between 20 to 50 pounds would be too heavy for him. (AR 56.) He needs to lie down 5 to 10 times per day, for 15 to 30 minutes at a time. (Id.)
C. Analysis.
The ALJ found that Plaintiff was disabled for the period from November 4, 2014 through November 18, 2015. (AR 35.) For the period beginning on November 19, 2015, the ALJ first found that Plaintiff's medically determinable impairments could reasonably be expected to produce the alleged symptoms. (AR 37.) However, the ALJ next found that Plaintiff's statements concerning the intensity, persistence, and limiting effects of these symptoms were not entirely consistent with the medical evidence and other evidence in the record. (Id.) As support, the ALJ stated four reasons not to credit Plaintiff's subjective symptom allegations about his limitations beginning on November 19, 2015. (AR 38.) The Court considers each reason in turn.
1. Inconsistency with physical therapy notes.
The ALJ first found that Plaintiff's allegations of disabling limitations that would preclude all basic work activities were inconsistent with Plaintiff's prior statements to physical therapists indicating improvement. (AR 38.) In particular, the ALJ cited a November 2015 therapy note that stated Plaintiff "felt he was improving and demonstrated improved flexibility" (AR 736, 738) and a January 2016 therapy note in which Plaintiff "reported to his physical therapist that he was able to perform his typical activities of daily living and home exercise program without limitation" (AR 726). (AR 38.)
One of the factors that an ALJ may considering in weighing a claimant's subjective symptom testimony is inconsistencies between that testimony and the claimant's statements to others. See Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 599-600 (9th Cir. 1999). Here, the ALJ cited substantial evidence from Plaintiff's prior statements to his physical therapists that were inconsistent with Plaintiff's later hearing testimony that his symptoms were disabling and precluded all basic work activities. Plaintiff's statement to the therapists that his flexibility had improved and that he could perform his typical activities of daily living and home exercise program without limitation demonstrated a clear and convincing inconsistency with his hearing testimony that he had trouble with several aspects of functioning such as turning his neck, bending, standing, walking, sitting, and lifting.
Plaintiff argues that such improvement with treatment does not mean that he can function effectively in a workplace. (Joint Stip. at 12-13.) The ALJ, however, was not required to find that the physical therapy notes conclusively demonstrated Plaintiff's ability to function effectively in a workplace. It was sufficient for the ALJ to find that Plaintiff's statements to his physical therapists were inconsistent with his later testimony claiming disabling limitations. See Valentine v. Commissioner Social Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009) ("The ALJ recognized that this evidence did not suggest [the claimant] could return to his old job . . , but she thought it did suggest that [the claimant's] later claims about the severity of his limitations were exaggerated."). The inconsistency by itself was a clear and convincing reason to reject Plaintiff's subjective symptom testimony.
Plaintiff further argues that the ALJ mischaracterized the evidence of his daily activities. (Joint Stip. at 13-14.) The Court perceives no mischaracterization. Plaintiff reported to his physical therapists that he was able to perform his typical activities of daily living and home exercise program without limitation. (AR 726.) The ALJ accurately characterized this report and reasonably found it was inconsistent with Plaintiff's hearing testimony that he was significantly limited in several basic areas of physical functioning. (AR 38.)
Plaintiff further argues that, in finding the inconsistency, the ALJ committed legal error by failing to connect any specific portions of Plaintiff's testimony to the relevant parts of the record. (Joint Stip. at 16.) An ALJ "must identify what testimony is not credible and what evidence undermines the claimant's complaints." Brown-Hunter, 806 F.3d at 493. The ALJ complied with this standard. The ALJ first identified Plaintiff's testimony about disabling limitations precluding all work limitations, specifically, Plaintiff's testimony about suffering limitations in several basic areas of physical functioning (AR 37), and then identified the physical therapy notes that undermined that testimony (AR 38). Given this analysis, the ALJ did not commit reversible legal error by failing to explain his reasoning with requisite specificity. Rather, the ALJ's "path may be reasonably be discerned." See Brown-Hunter, 806 F.3d at 492.
2. Inconsistency with other portions of Plaintiff's hearing testimony.
The ALJ next found that Plaintiff's allegations of disabling limitations that would preclude all basic work activities were inconsistent with his own hearing testimony that he experienced "some improvement following his surgeries, referring to an L1 kyphoplasty in August 2015 and lumbar epidural steroid injections in December 2015." (AR 38.)
One of the factors that an ALJ may considering in weighing a claimant's subjective symptom testimony is "any inconsistent statements in [his] testimony." See Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) (citing Fair v. Bowen, 885 F.2d 597, 602, 604 n.5 (9th Cir. 1989)). Here, the portion of the hearing testimony apparently referenced by the ALJ as evidence of improvement consisted of Plaintiff's testimony that his surgeries "did help out my back somewhat but I still have back issues." (AR 53-54.) Later, Plaintiff similarly testified that, after the kyphoplasty, "it helped, it helped quite a bit, but after that like I didn't think, I truly believed that it wasn't going to get any better than that. I mean because there was days to where like I'd be in tears." (AR 57-58.)
Unlike the other inconsistency identified from the physical therapy notes, the particular inconsistency identified here from Plaintiff's own hearing testimony about improvement from treatment was not a valid reason to reject his testimony about disabling limitations. Plaintiff's own hearing testimony about improvement was more vague than the physical therapy notes about what the improvement enabled him to do and, thus, did not clearly demonstrate an inconsistency with his overall testimony about disabling limitations. Plaintiff's vague hearing testimony that, despite improvement, his pain still leaves him "in tears" was not clearly inconsistent with his overall allegations that he has disabling limitations that would preclude all basic work activities. Thus, this was not a clear and convincing reason to reject Plaintiff's subjective symptom testimony. For the reasons discussed elsewhere in this opinion, however, the error was harmless because the ALJ stated other valid reasons to reject Plaintiff's testimony. See Carmickle v. Commissioner, Social Sec. Admin., 533 F.3d 1155, 1163 (9th Cir. 2008).
3. Inconsistency with orthopedic examination findings.
The ALJ next found that a November 2015 orthopedic examination "was mostly normal." (AR 38.) An ALJ may reject a claimant's subjective symptom allegations because it is inconsistent with objective medical evidence, as long as it is not the sole reason. See Rollins v. Massanari, 261 F.3d at 853, 857 (9th Cir. 2001) ("While subjective pain testimony cannot be rejected on the sole ground that it is not fully corroborated by objective medical evidence, the medical evidence is still a relevant factor in determining the severity of the claimant's pain and its disabling effects."); Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) ("Although lack of medical evidence cannot form the sole basis for discounting pain testimony, it is a factor that the ALJ can consider in his credibility analysis."). As used here, "objective medical evidence" consists of evidence "that provides signs or laboratory findings." See SSR 16-3P, 2017 WL 5180304, at *3; see also 20 C.F.R. § 416.929(a) (2011). More specifically, "signs" are defined as abnormalities that can be shown by "medically acceptable clinical diagnostic techniques." See 20 C.F.R. § 416.928(b) (2006).
During Plaintiff's orthopedic examination, which the ALJ accurately summarized as "mostly normal," the examining physician recorded the following objective signs: full range of motion in the neck, no tenderness on palpation of the thoracic spine, mild tenderness with no paravertebral spasm of the lumbar spine, normal range of motion of the thoracic and lumbar spine, the ability to heel and toe walk, negative straight leg raise tests, no tenderness on palpation of the hips, and full and painless range of motion of the hips. (AR 36-37 (citing AR 704-05).)
The ALJ was entitled to consider these mostly normal signs from Plaintiff's orthopedic examination as a factor, among others, in rejecting Plaintiff's testimony that he has trouble with physical functioning such as turning his neck and bending at the hip. See Burch, 400 F.3d at 681; see also Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1998) (holding that an ALJ properly rejected a claimant's testimony in part because tests of her back were normal). Because the ALJ's finding from the objective medical evidence was supported by substantial objective evidence in the record, it was a clear and convincing reason to reject Plaintiff's testimony.
4. Lack of treatment after 2016.
Finally, the ALJ found it "[m]ost revealing" that, according to Plaintiff's own testimony and the medical record, Plaintiff had received no treatment, including pain medication, after 2016. (AR 38.) The ALJ found that Plaintiff's "lack of treatment for such a lengthy period, two years, is inconsistent with allegations of significant limitations from pain and other symptoms." (Id.)
In general, a claimant's pain testimony can be called into doubt by "an unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment." See Fair, 885 F.2d at 603. Here, however, Plaintiff waived any challenge to the ALJ's finding in this regard by failing to argue it in his brief. Accordingly, the Court does not address the merits of the finding. See Carmickle, 533 F.3d at 1161 n.2 ("We do not address this finding because [the claimant] failed to argue this issue with any specificity in his briefing.") (citation omitted); see also Ford v. Saul, 950 F.3d 1141, 1158 n.12 (9th Cir. 2020) (claimant forfeits an argument that was not raised before the district court) (citation omitted).
D. Conclusion.
The ALJ stated one reason that was not a clear and convincing reason based on substantial evidence to reject Plaintiff's subjective symptom testimony. This error was harmless because the ALJ otherwise stated two valid reasons for his assessment. Moreover, Plaintiff waived his challenge to the ALJ's final reason for his assessment. In sum, the ALJ's rejection of Plaintiff's subjective symptom testimony does not warrant reversal.
ORDER
It is ordered that Judgment be entered affirming the decision of the Commissioner of Social Security and dismissing this action with prejudice. DATED: December 03, 2020
/s/_________
MARIA A. AUDERO
UNITED STATES MAGISTRATE JUDGE