(SS) Bianchini v. Commissioner of Social Security ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 JEFFREY M. BIANCHINI, SR., No. 2:18-cv-2892-EFB 11 Plaintiff, 12 v. ORDER 13 ANDREW SAUL, Commissioner of Social Security 14 Defendant. 15 16 17 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 18 (“Commissioner”) denying his applications for a period of disability and Disability Insurance 19 Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the 20 Social Security Act. The parties have filed cross-motions for summary judgment. ECF Nos. 15 21 & 20. Also pending is the court’s March 30, 2020 order to show cause why sanctions should not 22 be imposed for the plaintiff’s failure to timely file his motion. ECF No. 13. For the reasons 23 discussed below, the order to show cause is discharged, plaintiff’s motion for summary judgment 24 is denied, and the Commissioner’s motion is granted. 25 I. Order to Show Cause 26 On June 20, 2019, the Commissioner filed the administrative record and an answer to the 27 complaint. ECF Nos. 9 & 10. Pursuant to the court’s scheduling order, plaintiff was required to 28 file a motion for summary judgment and/or remand within 45 days of the date the administrative 1 record was served or, in this instance, by August 5, 2019. ECF No. 5 at 2. After he failed to do 2 so, the court ordered him to show cause why sanctions should not be imposed for failure to timely 3 file a motion for summary judgment. ECF No. 13. Plaintiff was also ordered to file his motion 4 for summary judgment no later than April 13, 2020. Id. 5 In response, plaintiff’s counsel attributes the failure to timely file a motion to a 6 calendaring error by recently hired support staff but counsel took ultimate responsibility, and 7 apologized for the failure. ECF No. 14. While that response explains the failure, it does not 8 excuse it nor provide good cause for missing the deadline. See Hubbard v. Twin Oaks Health and 9 Rehabilitation Center, 2004 WL 3643820, *1 (E.D. Cal. July 15, 2004) (“[D]efendants provide 10 no showing of good cause, but instead admit that a calendaring error . . . [was] the cause of their 11 oversight of the expert designation deadline.”) Nevertheless, the order to show cause will be 12 discharged without the imposition of sanctions. 13 II. Background 14 Plaintiff filed applications for a period of disability, DIB, and SSI, alleging that he had 15 been disabled since March 17, 2015. Administrative Record (“AR”) 169-83. His applications 16 were denied initially and upon reconsideration. Id. at 94-97, 103-114. A hearing was 17 subsequently held before administrative law judge (“ALJ”) David M. Blume. Id. at 30-55. 18 On September 25, 2017, the ALJ issued a decision finding that plaintiff was not disabled 19 under sections 216(i), 223(d), and 1614(a)(3)(A) of the Act.1 Id. at 16-25. The ALJ made the 20 1 Disability Insurance Benefits are paid to disabled persons who have contributed to the 21 Social Security program, 42 U.S.C. §§ 401 et seq. Supplemental Security Income (“SSI”) is paid to disabled persons with low income. 42 U.S.C. §§ 1382 et seq. Under both provisions, disability 22 is defined, in part, as an “inability to engage in any substantial gainful activity” due to “a 23 medically determinable physical or mental impairment.” 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). A five-step sequential evaluation governs eligibility for benefits. See 20 C.F.R. 24 §§ 423(d)(1)(a), 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The following summarizes the sequential evaluation: 25 26 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed 27 to step two. Step two: Does the claimant have a “severe” impairment? 28 If so, proceed to step three. If not, then a finding of not disabled is 1 following specific findings: 2 1. The claimant meets the insured status requirements of the Social Security Act through 3 March 31, 2016. 4 2. The claimant has not engaged in substantial gainful activity since March 17, 2015, the alleged onset date (20 CFR 404.1571 et seq., and 416.971, et seq.). 5 * * * 6 7 3. The claimant has the following severe impairments: fracture of the right foot (20 CFR 404.1520(c) and 416.920(c)). 8 * * * 9 4. The claimant does not have an impairment or combination of impairments that meets or 10 medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart 11 P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926). 12 * * * 13 5. After careful consideration of the entire record, I find that the claimant has the residual 14 functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 15 416.967(b) except: he can frequently climb ramps/stairs, balance, stoop, kneel, crouch, and crawl; and occasionally climb ladders/ropes/scaffolds. 16 * * * 17 ///// 18 19 appropriate. Step three: Does the claimant’s impairment or combination 20 of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App.1? If so, the claimant is automatically 21 determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past 22 work? If so, the claimant is not disabled. If not, proceed to step 23 five. Step five: Does the claimant have the residual functional 24 capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 25 26 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). 27 The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Yuckert, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential 28 evaluation process proceeds to step five. Id. 1 6. The claimant is capable of performing past relevant work as a recreational vehicle salesperson and automobile salesperson. This work does not require the performance of 2 work-related activities precluded by the claimant’s residual functional capacity (20 CFR 3 404.1565 and 416.965). 4 * * * 5 7. The claimant has not been under a disability, as defined in the Social Security Act, from March 17, 2015, through the date of this decision (20 CFR 404.1520(f) and 416.920(f)). 6 7 Id. at 18-25. 8 Plaintiff’s request for Appeals Council review was denied on August 24, 2018, leaving the 9 ALJ’s decision as the final decision of the Commissioner. Id. at 1-6. 10 III. Legal Standards 11 The Commissioner’s decision that a claimant is not disabled will be upheld if the findings 12 of fact are supported by substantial evidence in the record and the proper legal standards were 13 applied. Schneider v. Comm’r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); 14 Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel, 15 180 F.3d 1094, 1097 (9th Cir. 1999). 16 The findings of the Commissioner as to any fact, if supported by substantial evidence, are 17 conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is 18 more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th 19 Cir. 1996). “‘It means such evidence as a reasonable mind might accept as adequate to support a 20 conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. 21 N.L.R.B., 305 U.S. 197, 229 (1938)). 22 “The ALJ is responsible for determining credibility, resolving conflicts in medical 23 testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 24 2001) (citations omitted). “Where the evidence is susceptible to more than one rational 25 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” 26 Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 27 ///// 28 1 IV. Analysis 2 Plaintiff’s motion raises two arguments. First, plaintiff argues that the ALJ erred by 3 rejecting the opinion from his treating physician assistant, Ashlee Harrah. ECF No. 15 at 9-13. 4 Second, he argues that the ALJ improperly rejected his testimony. Id. at 13-15. The court, for the 5 reasons stated below, finds neither argument persuasive. 6 A. The ALJ Provided Legally Sufficient Reasons for Rejecting Ms. Harrah’s Opinion 7 At the time plaintiff filed her claim, physician assistants were not considered acceptable 8 medical sources within the meaning of the Commissioner’s regulations.2 20 C.F.R. 9 §§ 404.1513(d)(1), 416.913(d)(1). Thus, an opinion from a physician assistant is entitled to less 10 deference than an opinion from a treating physician, and the ALJ may discount the opinion from 11 this source if he “gives reasons germane . . . for doing so.” Molina, 674 F.3d 1104, 1111 (9th Cir. 12 2012). Nevertheless, in some instances “it may be appropriate to give more weight to the opinion 13 of a medical source who is not an “acceptable medical source” if he or she has seen the individual 14 more often than the treating source, has provided better supporting evidence and better 15 explanation for the opinion, and the opinion is more consistent with the evidence as a whole” 20 16 C.F.R. §§ 404.1527(f); 416.927(f); see Popa v. Berryhill, 872 F.3d 901, 907 (9th Cir. 2017) 17 (finding that ALJ erred in disregarding opinion of a nurse practitioner who served as claimant’s 18 primary medical care provider). 19 Ms. Harrah opined that plaintiff could sit for about six hours in an eight-hour day, stand 20 for at least two hours in an eight-hour day, walk at least two hours in an eight-hour day, and walk 21 approximately four to five blocks without rest or severe pain. AR 398. She also found that 22 plaintiff would need to alternate positions at will, elevate his leg to heart level 20 percent of an 23 eight-hour day, and would likely be absent from work about one day a month due to his 24 impairments. Id. at 398-99. The ALJ afforded Ms. Harrah’s opinion little weight, finding that it 25 26 2 The Commissioner has amended the regulations regarding evaluation of medical evidence for claims filed on or after March 27, 2017. 20 C.F.R. §§ 404.1520c(c), 416.920c(c). 27 Under the new regulations, a licensed physician assistant is an acceptable medical source “for impairments within his or her licensed scope of practice.” See 20 C.F.R. §§ 404.1502, 416.902. 28 Because plaintiff’s applications were filed in 2015, the new regulations do not apply to his claim. 1 was inconsistent with plaintiff’s “significant activities of daily living and improvement on 2 medication.” Id. at 24. 3 The court finds that these reasons are legally sufficient. Even in the context of treating 4 physicians, an inconsistency between the physician’s opinion and the claimant’s daily activities 5 may justify discounting his or her opinion. See Morgan v. Comm’r of Soc. Sec. Admin, 169 F.3d 6 595, 601-02 (9th Cir. 1999) (holding that inconsistency with daily activities is a specific and 7 legitimate reason to discount a physician’s opinion). As observed by the ALJ, plaintiff’s medical 8 records reflect that, despite a continuing need to take medication for pain, plaintiff was able to 9 engage in more activities as his leg impairment improved. 10 Medical records from May 2015, just two months after plaintiff fractured his foot, show 11 that the plaintiff was having “some more pain” after increasing his activity. AR 330. That 12 activity was described as walking a significant amount with his CAM boot and building an entire 13 fence with his wife over the course of the prior week. Id. at 330. In August 2015, plaintiff 14 reported being able to walk comfortably for six hours in regular shoes before getting fatigued. Id. 15 at 293. He also reported engaging in cleaning and yard work, including working in the other 16 people’s yards. Id. In December 2015, plaintiff reported that he attempted to go back to work the 17 prior month, but he was forced to stop after a few days due to injuring his back. Id. at 359. A 18 May 2016 treatment record indicates that plaintiff had been working more and had “four weeks of 19 work lined up.” Id. at 368. He also reported experiencing pain while climbing ladders, which he 20 was required to do for work. Id. In October 2016, plaintiff reported working “hard Landscaping 21 and doing Handyman and Maintenance work.” Id. at 377. In February 2017, he stated that lately 22 he had been working on uneven grounds, which exacerbated his pain. Id. at 382 23 These reported activities, including plaintiff’s own statement that he could walk six hours 24 in regular shoes before becoming fatigued, easily support the ALJ’s rejection of Ms. Harrah’s 25 opinion. Plaintiff notes, however, that these same records also reflect that plaintiff continued to 26 experience swelling in the right foot and ankle, which he often attributed to his activities. ECF 27 No. 15 at 10-11. Plaintiff’s observation, while accurate, does not cast doubt on the ALJ’s finding. 28 A claimant’s RFC is the most that the claimant can do despite his physical and mental limitations. 1 20 C.F.R. §§ 404.1545(a)(1); 416.945(a)(1). Here, the records discussed above reflect that 2 despite some issues with swelling and intermittent pain, plaintiff was able to walk for a 3 significant period of time and perform manual labor. As the ALJ concluded, the ability to 4 perform such activities is inconsistent with Ms. Harrah’s opinion that plaintiff could only stand 5 and walk for two hours in an eight-hour workday. 6 B. The ALJ Provided Legally Sufficient Reasons for Rejecting Plaintiff’s Testimony 7 Plaintiff also argues that the ALJ improperly rejecting his testimony without providing 8 legally sufficient reasons. ECF No. 15 at 13-15. 9 Plaintiff testified that he is unable to work primarily due to fracturing his right foot, which 10 he sustained after falling from a tree in March 2015. AR 36, 40. Plaintiff estimated that he could 11 frequently lift up to 20 pounds, stand for a total of three to four hours in an eight-hour workday, 12 but only stand at one time for approximately 30-90 minutes. Id. at 40-41, 51. He reported 13 experiencing constant pain in his foot, which was occasionally severe enough to disrupt his sleep. 14 Id. at 40, 47. He also reported receiving physical therapy, but noted that it provided no relief. Id. 15 at 46-47. 16 The ALJ concluded that plaintiff’s statements concerning the intensity, persistence, and 17 limiting effect of his symptoms were not entirely credible. Id. at 23. In reaching that finding, the 18 ALJ found that plaintiff’s allegations were inconsistent with the conservative nature of his 19 treatment. Id.; see Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (evidence of “conservative 20 treatment” is “sufficient to discount a claimant’s testimony regarding severity of an 21 impairment.”). As observed by the ALJ, plaintiff’s treatment involved home exercises, 22 swimming, icing, and elevating his leg. AR 22; see AR 285-86, 293, 319, 359. Although 23 plaintiff was prescribed Norco for pain, he generally described improvement in his level of pain. 24 Id. at 318 (September 2015—pain was “minimal to none at this point.”), 359 (December 2015— 25 improvement in foot pain), 364 (February 2016—“pain is well controlled” and some days 26 medication is not needed), 371 (July 2016—“Does not take Norco everyday. Only taking half a 27 tab for severe pain . . . .”). 28 ///// wOoe 2.40 UV VEOVO EPR MMVVUUTTICII es FIR Varewey Faye UV Oo 1 The ALJ also concluded that plaintiff’s allegations were inconsistent with his daily 2 || activities, including the performing landscaping and handyman work. AR 20. As discussed 3 || above, plaintiff's medical records reflect he was able to build a fence; walk a significant amount; 4 | and perform landscaping, handyman, and maintenance work. /d. at 293, 330, 337, 368. Plaintiff 5 || contends, however, that the ALJ’s reliance on his activities is misplaced, noting that he testified 6 || that his work primarily involved sedentary tasks performed on a part-time basis. See Tonapetyan 7 | v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001); Thomas, 278 F.3d 947, 959 (9th Cir.2002). But 8 || that testimony is belied by his medical records, which, as discussed above, show that plaintiff 9 | reported that he was performing physically demanding activities. Accordingly, the ALJ 10 || reasonably concluded that plaintiffs daily activities were inconsistent with allegations of 11 | disabling limitations. See Thomas, 278 F.3d at 956-57 (‘Where the evidence is susceptible to 12 | more than one rational interpretation, one of which supports the ALJ’s decision, the ALJ’s 13 || conclusion must be upheld.”). 14] V. Conclusion 15 Accordingly, it is hereby ORDERED that: 16 1. The March 30, 2020 order to show cause is discharged, and no sanctions are imposed; 17 2. Plaintiff's motion for summary judgment is denied; 18 3. The Commissioner’s cross-motion for summary judgment is granted; and 19 4. The Clerk is directed to enter judgment in the Commissioner’s favor and close the 20 || case. 21 || DATED: September 28, 2020. Eg Vout 4 hub LH □□ 2 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28