Eldridge v. Commissioner of Social Security Administration ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Nicky Eldridge, No. CV-22-08007-PCT-GMS 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 16 Plaintiff Nicky Eldridge seeks review under 42 U.S.C. § 405(g) of the final decision 17 of the Commissioner of Social Security (“the Commissioner”), which denied his disability 18 insurance benefits and supplemental security income under sections 216(i), 223(d), and 19 1614(a)(3)(A) of the Social Security Act. Because the decision of the Administrative Law 20 Judge (“ALJ”) is supported by substantial evidence, the Commissioner’s decision is 21 affirmed. 22 BACKGROUND 23 Nicky Eldridge (“Plaintiff”) was born in February 1955. He has at least a high 24 school education. Plaintiff previously worked as a maintenance mechanic at Southern 25 California Gas Company. He stopped working around May 1, 2017. In the two years after 26 2017, Plaintiff accrued only minimal earnings (approximately $250 per year in 2018 and 27 2019). 28 1 On September 18, 2019, Plaintiff applied for disability insurance benefits, alleging 2 disability beginning May 1, 2019. His claim was denied initially and upon reconsideration, 3 and a hearing was held by telephone before an ALJ on November 13, 2020. On December 4 22, 2020, the ALJ denied Plaintiff’s claim. The Appeals Council denied Plaintiff’s request 5 for review on November 24, 2021. On January 19, 2022, Plaintiff sought review by this 6 Court. (Doc. 1.). 7 DISCUSSION 8 I. Legal Standard 9 The district court reviews only those issues raised by the party challenging the ALJ’s 10 decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). Claims that are not 11 actually argued in an appellant’s opening brief are not considered on appeal. Indep. Towers 12 of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003). Only issues that are argued 13 specifically and distinctly in a party’s opening brief are reviewed. Id. Moreover, “when 14 claimants are represented by counsel, they must raise all issues and evidence at their 15 administrative hearings to preserve them on appeal.” Meanel v. Apfel, 172 F.3d 1111, 1115 16 (9th Cir. 1999). Failure to do so will only be excused when necessary to avoid a manifest 17 injustice. Id. 18 A court may set aside the Commissioner’s disability determination only if the 19 determination is not supported by substantial evidence or is based on legal error. Orn v. 20 Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, 21 less than a preponderance, and relevant evidence that a reasonable person might accept as 22 adequate to support a conclusion considering the record as a whole. Id. In determining 23 whether substantial evidence supports a decision, the court must consider the record as a 24 whole and may not affirm simply by isolating a “specific quantum of supporting evidence.” 25 Id. Generally, when the evidence is susceptible to more than one rational interpretation, 26 courts must uphold the ALJ’s findings if they are supported by inferences reasonably drawn 27 from the record. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). “Overall, the 28 1 standard of review is highly deferential.” Rounds v. Comm’r of Soc. Sec. Admin., 807 F.3d 2 996, 1002 (9th Cir. 2015). 3 Harmless error principles apply in the Social Security Act context. Molina, 674 4 F.3d at 1115. An error is harmless if there remains substantial evidence supporting the 5 ALJ’s decision, and the error does not affect the ultimate non-disability determination. Id. 6 The claimant usually bears the burden of showing that an error is harmful. Id. at 1111. 7 II. Five-Step Sequential Evaluation Process 8 To determine whether a claimant is disabled for purposes of the Social Security Act, 9 the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the 10 burden of proof on the first four steps, but the burden shifts to the Commissioner at step 11 five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ 12 determines whether the claimant is engaging in substantial gainful activity. 20 C.F.R. 13 § 404.1520(a)(4)(i). If so, the claimant is not disabled, and the inquiry ends. Id. At step 14 two, the ALJ determines whether the claimant has a severe medically determinable 15 physical or mental impairment. § 404.1520(a)(4)(ii). If not, the claimant is not disabled, 16 and the inquiry ends. Id. At step three, the ALJ considers whether the claimant’s 17 impairment or combination of impairments meets or medically equals an impairment listed 18 in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. § 404.1520(a)(4)(iii). If so, the claimant 19 is automatically found to be disabled. Id. If not, the ALJ proceeds to step four. At step 20 four, the ALJ assesses the claimant’s residual functional capacity and determines whether 21 the claimant is capable of performing past relevant work. § 404.1520(a)(4)(iv). If so, the 22 claimant is not disabled, and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and 23 final step, where the ALJ determines whether the claimant can perform any other work 24 based on the claimant’s residual functional capacity, age, education, and work experience. 25 § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is disabled. 26 Id. 27 At step one, the ALJ found that Plaintiff meets the insured status requirements of 28 the Social Security Act through March 31, 2021, and that Plaintiff has not engaged in 1 substantial gainful activity since May 1, 2017. (AR at 46.) At step two, the ALJ found 2 that Plaintiff has the following severe impairments: degenerative disc disease of the lumbar 3 spine; depressive disorder; generalized anxiety disorder; and post-traumatic stress disorder. 4 (AR at 47.) At step three, the ALJ determined that Plaintiff does not have an impairment 5 or combination of impairments that meets or medically equals the severity of one of the 6 impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (AR at 48.) 7 At step four, the ALJ found that the Plaintiff has the residual functional capacity to 8 perform medium work as defined in 20 C.F.R. § 404.1567(c), except the claimant can lift 9 and/or carry 50 pounds occasionally and 25 pounds frequently, can stand and/or walk for 10 6 hours of an 8-hour workday, and can sit for 6 hours of an 8-hour workday. Plaintiff can 11 frequently climb, stoop, crouch, crawl, kneel, and balance. He can also understand, 12 remember, and carry out simple instructions and occasionally remember and carry out 13 detailed and complex instructions. The ALJ further found that Plaintiff is unable to 14 perform any past relevant work. 15 At step five, the ALJ concluded that considering Plaintiff’s age, education, work 16 experience, and residual functional capacity, there are jobs that exist in significant numbers 17 in the national economy that he could perform. 18 III. Analysis 19 A. Plaintiff’s Symptom Testimony 20 The ALJ’s finding as to the intensity, persistence, and limiting effects of Plaintiff’s 21 symptoms (“the credibility finding”) is supported by substantial evidence. In evaluating 22 the credibility of a claimant’s testimony regarding subjective pain or other symptoms, the 23 ALJ is required to engage in a two-step analysis: (1) determine whether the claimant 24 presented objective medical evidence of an impairment that could reasonably be expected 25 to produce some degree of the pain or other symptoms alleged; and if so, absent evidence 26 of malingering, (2) reject the claimant’s testimony about the severity of the symptoms only 27 by giving specific, clear, and convincing reasons for the rejection. Vasquez v. Astrue, 572 28 F.3d 586, 591 (9th Cir. 2009). 1 To ensure meaningful review, the ALJ must specifically identify the testimony from 2 a claimant the ALJ finds not credible and explain what evidence undermines the testimony. 3 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014). “General 4 findings are insufficient.” Id. The ALJ must make findings “sufficiently specific to permit 5 the court to conclude that the ALJ did not arbitrarily discredit claimant’s testimony.” 6 Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002); accord Tommasetti v. Astrue, 533 7 F.3d 1035, 1039 (9th Cir. 2008). 8 In making a credibility determination, an ALJ “may not reject a claimant’s 9 subjective complaints based solely on a lack of objective medical evidence to fully 10 corroborate the claimant’s allegations.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 11 1219, 1227 (9th Cir. 2009) (internal quotation marks and citation omitted). But “an ALJ 12 may weigh inconsistencies between the claimant’s testimony and his or her conduct, daily 13 activities, and work record, among other factors.” Id. Further, the claimant is not required 14 to produce objective medical evidence of the symptom or its severity. Garrison v. Colvin, 15 759 F.3d 995, 1014 (9th Cir. 2014). 16 The ALJ found that Plaintiff’s “medically determinable impairments could 17 reasonably be expected to cause the alleged symptoms.” (AR at 50.) Nevertheless, the 18 ALJ found that Plaintiff’s “statements concerning the intensity, persistence and limiting 19 effects of these symptoms are not entirely consistent with the medical evidence and other 20 evidence in the record.” (Id.) The ALJ offered three types of inconsistencies: (1) the 21 medical evidence did not support the severity of Plaintiff’s subjective allegations, 22 (2) Plaintiff’s rejection of treatment was inconsistent with subjective limitations and 23 reported pain, and (3) Plaintiff’s described daily activities were not consistent with the 24 degree of disabling symptoms alleged. (AR at 49-51.) These are clear, convincing, and 25 specific reasons for discrediting Plaintiff’s testimony about the severity of his symptoms. 26 Plaintiff argues that the ALJ failed to properly consider nearly all of the factors he 27 was required to consider at step two of the credibility inquiry. The relevant regulation 28 states: 1 [f]actors relevant to your symptoms such as pain, which we will consider, include: (i) your daily activities; (ii) the location, 2 duration, frequency, and intensity of your pain or other 3 symptoms; (iii) precipitating and aggravating factors; (iv) the type, dosage, effectiveness, and side effects of any medication 4 you take or have taken to alleviate your pain or other 5 symptoms; (v) treatment, other than medication, you receive or have received for relief of your pain or other symptoms; 6 (vi) any measures you use or have used to relieve your pain or 7 other symptoms . . . ; and (vii) other factors concerning your functional limitations and restrictions due to pain or other 8 symptoms. 9 10 20 C.F.R. § 404.1529(c)(3)(i)-(vii). The ALJ adequately addressed each of these factors 11 and discounted Plaintiff’s symptom testimony accordingly. The Court addresses the 12 factors raised by Plaintiff, and the inconsistencies recognized by the ALJ, below. 13 Medical Evidence: The ALJ determined that the Plaintiff’s alleged symptoms were 14 not entirely consistent with the medical evidence. In reaching this conclusion, the ALJ 15 relied primarily on a comprehensive medical evaluation that the Plaintiff underwent in 16 February 2020. (See AR at 371-77.) At that evaluation, Plaintiff’s symptoms were almost 17 entirely normal. The ALJ reviewed several aspects of the evaluation that did not indicate 18 any problems with Plaintiff’s health, such as Plaintiff’s report that his medical concerns do 19 not significantly impact his daily living (AR at 372), normal gait and station (AR 373), 20 normal balance (AR 373), no pain with palpation of the back (AR 374), and no 21 fibromyalgia tender points (AR at 375). 22 Notably, the February 2020 examination did not assess Plaintiff’s spinal range of 23 motion because he “report[ed] he had a hernia repair in June” and “[was] unable to do any 24 range of motion of his back because of back pain.” (AR at 374.) Nevertheless, the 25 examining physician opined that Plaintiff’s conditions would not impose any limitations. 26 (AR at 376.) Although Plaintiff testified that he was in a lot of pain and rated his pain as 27 going from a “five to a ten,” the vast majority of the February 2020 examination revealed 28 normal structural findings and noted that Plaintiff felt no pain with several different 1 manipulations. (AR at 72, 374.) The ALJ recognized Plaintiff’s testimony about his pain 2 levels but contrasted it with several normal findings in his consultative evaluation. (AR at 3 50-51.) In light of the February 2020 medical evaluation, the ALJ’s finding that the 4 medical evidence was somewhat inconsistent with Plaintiff’s testimony is reasonable. 5 Plaintiff’s August 2020 MRI results do not undermine this determination. An 6 August 2020 MRI of the Plaintiff’s back reviewed marked disc space narrowing at L4-5 7 and 5-6 and disc protrusions at L3-4 and L5-S1, with central canal stenosis at L3-4. (AR 8 at 51.) Plaintiff alleges that the ALJ erred in concluding that despite these MRI results, he 9 could still perform medium work, arguing that such a finding is an “improper lay judgment 10 on medical imaging.” (Doc. 15 at 10.) The ALJ’s opinion contains no such judgment. 11 Instead, the ALJ recognized that although the MRI demonstrated some degenerative 12 changes, Plaintiff refused to see an orthopedic specialist to discuss the images and potential 13 changes. (AR at 51.) As such, the provider following up with Plaintiff on the MRI report 14 was “not sure how to help him if he refuses any kind of referral.” (AR at 549.) Further, at 15 the follow up visit the physician noted that the Plaintiff was “not having any new or 16 worsening problem.” (Id.) The ALJ reasonably concluded that the consultative 17 examination was inconsistent with Plaintiff’s testimony and the August 2020 MRI, without 18 further examination or explanation, does not compel a different conclusion. 19 Rejection of Treatment: The ALJ similarly determined that Plaintiff’s rejection of 20 treatment was inconsistent with his described severity of symptoms. The Ninth Circuit has 21 “long held that, in assessing a claimant’s credibility, the ALJ may properly rely on 22 unexplained or inadequately explained failure to seek treatment or to follow a prescribed 23 course of treatment.” Molina, 674 F.3d at 1113. Here, the ALJ stated that “treatment 24 records from September 2020 indicated that the claimant declined pain management, 25 orthopedic surgery, and physical therapy referrals.” (AR at 51.) 26 To be sure, Plaintiff offers explanations for some of his failures to pursue or accept 27 certain treatments. As for opioid medication specifically, Plaintiff explains that he avoids 28 opioids because he previously had a negative experience with Vicodin and does not want 1 to risk addiction. (AR at 79.) As for physical therapy, Plaintiff explained that he continues 2 to use exercises he has previously learned and does not want to attend new sessions to re- 3 learn the exercises. (AR at 74; 84.) Plaintiff further explained that he does not want to do 4 back surgery because of the risk of paralysis. (AR at 85.) Even assuming these specific 5 reasons are legitimate, Plaintiff does not offer reasons for declining other types of pain 6 management aside from Vicodin or declining to visit an orthopedic specialist to review his 7 MRI results and receive other treatment options. 8 After the August 2020 MRI, his provider offered him several referrals, which he did 9 not pursue. (AR at 549.) Importantly, his provider informed him that “he should go and 10 see an orthopedic surgeon to discuss changes in his older imaging versus his new imaging,” 11 explaining that such an appointment is necessary “if he does not want surgery and does not 12 want any type of pain procedures.” (Id.) Plaintiff refused, however, demonstrating that he 13 refused a wider range of treatment than he offered explanation for, including other types 14 of pain management and further recommendations from a specialist. It was thus reasonable 15 for the ALJ to conclude that Plaintiff’s testimony of significant and persistent pain was 16 inconsistent with his failure to continue pursuing treatment in some capacity after receiving 17 the MRI results and to discount his testimony accordingly. 18 Daily Activities: The ALJ reasonably found that Plaintiff’s described daily activities 19 were inconsistent with the limitations he described in his testimony. In his briefing, 20 Plaintiff argues that his described activities “do not reflect a person who can lift and carry 21 50 pounds occasionally and 25 pounds frequently.” (Doc. 15 at 11.) However, the precise 22 question regarding Plaintiff’s credibility is whether the ALJ reasonably determined there 23 were inconsistencies between Plaintiff’s symptom testimony and the described daily 24 activities. Plaintiff points to specific consistencies between his testimony about daily 25 activities and symptoms. 26 Plaintiff stated at his consultative evaluation that his symptoms did not impose any 27 significant difficulty on his daily activities. (AR at 372.) He also stated that he could sit, 28 drive, cook, go grocery shopping regularly, and complete light housework. However, 1 Plaintiff indicated on a function report in October 2019 that he had difficulty squatting, 2 sitting, kneeling, bending, stair climbing, and completing tasks. (AR at 255.) “Even if the 3 claimant experiences some difficulty or pain, [his] daily activities may be grounds for 4 discrediting the claimant’s testimony to the extent that they contradict claims of a totally 5 debilitating impairment.” Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022). Plaintiff’s 6 previous report that his impairments imposed no significant difficulty on his daily activities 7 is at least inconsistent with other testimony that he was always in extreme pain and could 8 not sit down. (AR at 72-73.) Because the ALJ identified inconsistencies between the 9 Plaintiff’s ability to perform daily activities and described symptoms, his decision to 10 discredit Plaintiff’s symptom testimony was reasonable. 11 Location, Duration, Frequency and Intensity of Pain and Precipitating and 12 Aggravating Factors: Plaintiff asserts that the ALJ improperly considered these factors by 13 failing to explicitly explain why he did not offer a sit/stand limitation in light of Plaintiff’s 14 testimony that housework and standing can aggravate his pain. (Doc. 15 at 11-12.) The 15 ALJ is not required to offer an explicit explanation for declining to add this limitation and 16 a failure to give one is not an indication that the ALJ failed to consider the factor. 17 Magallanes v. Bowen, 881 F.2 747, 755 (9th Cir. 1989) (“We are not deprived of our 18 faculties for drawing specific and legitimate inferences from the ALJ’s opinion.”). Here, 19 the ALJ acknowledged Plaintiff’s testimony about his pain scale and difficulties with 20 sitting or standing. However, as noted above, the ALJ reasonably found these aspects of 21 his symptom testimony inconsistent with his alleged daily activities, the objective medical 22 evidence, and Plaintiff’s failure to seek further treatment. As such, the ALJ reasonably 23 discredited the testimony. 24 Work History: Plaintiff’s steady work history does not bear on the inconsistencies 25 described by the ALJ and consequently does not affect the ALJ’s credibility determination. 26 Plaintiff cites the relevant regulation and case law stating that an ALJ must consider a 27 claimant’s work history when assessing credibility. See 20 C.F.R. § 404.1529(c)(3); 28 Simmons v. Colvin, No. ED CV 15-01865, 2016 WL 6436829 (C.D. Cal. Oct. 31, 2016). 1 The regulation states “[w]e will consider all of the evidence presented, including 2 information about your prior work record.” 20 C.F.R. § 404.1529(c)(3). The only case 3 Plaintiff cites to argue that a prior work record bears on the credibility finding is a district 4 court case affirming an ALJ’s determination that a claimant’s “spotty” or “meager” work 5 history undermined her credibility at this stage of the analysis. Simmons, 2016 WL 6 6436829, at *8. While it may be that “[e]vidence of a poor work history is a clear and 7 convincing reason to discredit plaintiff’s credibility,” Plaintiff provides no case law 8 suggesting that a positive or consistent work history alone can negate other inconsistencies 9 in Plaintiff’s symptom testimony. See id. 10 As noted by the Plaintiff, the “credibility” finding at issue is perhaps an imprecise 11 shorthand for whether the claimant’s self-described limitations are consistent with the 12 evidence. SSR 16-3P, 2017 WL 5180304, at *2 n.1 (Oct. 25, 2017). And, Plaintiff does 13 not explain how his significant work history relates to or undermines the inconsistencies in 14 the record identified by the ALJ. Therefore, even if the ALJ was required to specifically 15 address Plaintiff’s work history in the opinion, failure to do so was harmless error. See 16 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195-97 (9th Cir. 2004) (finding 17 that ALJ erred when discrediting claimant’s symptom testimony by relying on an 18 impermissible assumption, but error was harmless in light of “all the other reasons given 19 by the ALJ for [claimant’s] lack of credibility”). Plaintiff fails to show how the ALJ’s 20 assessment of his work history, even if it made him more “credible” in a generalized sense, 21 negate the inconsistencies that form the basis of his credibility finding. 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 1 CONCLUSION 2 Accordingly, 3 IT IS THEREFORE ORDERED that the final decision of the ALJ dated 4|| December 22, 2020, is AFFIRMED. The Clerk of Court is directed to enter final judgment || consistent with this Order and to close the case. 6 Dated this 5th day of July, 2023. Wars ) A Whacrsay Sooo) 9 Chief United states District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -ll-