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

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 LEO MORGAN, ) Case No.: 1:19-cv-00605-BAM 12 ) Plaintiff, ) ORDER REGARDING PLAINTIFF’S 13 v. ) SOCIAL SECURITY COMPLAINT ) 14 ANDREW M. SAUL, Commissioner of Social ) Security, ) 15 ) Defendant. ) 16 ) 17 18 INTRODUCTION 19 Plaintiff Leo Morgan (“Plaintiff”) seeks judicial review of a final decision of the 20 Commissioner of Social Security (“Commissioner”) denying his application for disability insurance 21 benefits under Title II of the Social Security Act. The matter is currently before the Court on the 22 parties’ briefs, which were submitted, without oral argument, to Magistrate Judge Barbara A. 23 McAuliffe.1 24 Having considered the briefing and record in this matter, the Court finds the decision of the 25 Administrative Law Judge (“ALJ”) to be supported by substantial evidence in the record as a whole 26 27 1 The parties consented to have a United States Magistrate Judge conduct all proceedings in this case, including 28 entry of final judgment, pursuant to 28 U.S.C. § 636(c). (Doc. Nos. 4, 6, 13.) 1 and based upon proper legal standards. Accordingly, this Court affirms the agency’s determination to 2 deny benefits. 3 FACTS AND PRIOR PROCEEDINGS 4 Plaintiff filed an application for disability insurance benefits on December 28, 2015. AR 161- 5 62.2 Plaintiff alleged that he became disabled on March 23, 2015, due to a back injury. AR 201. 6 Plaintiff’s application was denied initially and on reconsideration. AR 87-91, 94-98. Subsequently, 7 Plaintiff requested a hearing before an ALJ. ALJ Matilda Surh held a hearing on March 28, 2018, and 8 issued an order denying benefits on May 11, 2018. AR 12-30, 31-58. Plaintiff sought review of the 9 ALJ’s decision, which the Appeals Council denied, making the ALJ’s decision the Commissioner’s 10 final decision. AR 1-5. This appeal followed. 11 Hearing Testimony 12 The ALJ held a hearing on March 28, 2018, in Fresno, California. Plaintiff appeared with his 13 attorney, Kelli Morris. Paul Steve Ramirez, an impartial vocational expert, also appeared. AR 15. 14 In response to questions from the ALJ, Plaintiff testified that he was 58 years old with one year 15 of college. AR 35-36. Plaintiff testified that he last worked in 2014. He was a hospital team leader 16 for the housekeeping staff since at least 2003. AR 37-39. He was let go from that job because he 17 could no longer perform duties that involved bending, sitting, reaching and twisting. He feels unable 18 to work because of constant pain in his lower back and right hip. AR 39-41. He tried to drive for 19 Uber in 2016, but he could not do it. AR 53. 20 When asked about his activities, Plaintiff testified that he does not do a lot of chores around the 21 house. He is able to do small loads of laundry and will shop with his kids. On a typical day, he wakes 22 up, walks, showers, dresses and sits around. He tries to do a little walking in the yard, but he is mostly 23 at the house, watching TV and reading. He can sit about 14 or 20 minutes before he needs to move. If 24 his back goes out, he might have to lie down for three to five days or more. He was taking Motrin, but 25 no longer takes pain medication. AR 41-44. 26 27 28 2 References to the Administrative Record will be designated as “AR,” followed by the appropriate page number. 1 Plaintiff testified that he recently went to the doctor to discuss his back pain. An x-ray was 2 taken, but Plaintiff has not talked with the doctor about the results. She directed him to stop taking 3 Motrin and sent him to a chiropractor. The chiropractor temporarily helps with pain. AR 45-46. He 4 used to attend physical therapy, but he did not find it helpful. He wears a back brace for his lower 5 back, which helps. AR 47-48. 6 When asked about his abilities, Plaintiff explained that he does not bend or pick things up off 7 the floor. He can lift about 20 pounds on a good day, but he cannot pick a gallon of milk on a bad day. 8 AR 46-47. He can drive and drives himself to appointments and to run errands. AR 48. 9 In response to questions from his attorney, Plaintiff testified that he has more bad days than 10 good days over the course of a month. During the last year, he had not received much treatment for 11 his back. He was using warm compresses. He did not know why his last doctor did not send him to a 12 chiropractor. AR 49-51. 13 Plaintiff also reported some vertigo, which had not been resolved. He recently was sent for an 14 MRI to check the blockage in his neck. He still has vertigo every now and then, about five times each 15 month, but it is short-lived. AR 51-52. 16 Following Plaintiff’s testimony, the ALJ elicited testimony from the vocational expert (“VE”) 17 Paul Steve Ramirez. The VE characterized Plaintiff’s past work as cleaner, hospital, at the medium 18 exertional level. The ALJ also asked the VE hypothetical questions. For all of the hypotheticals, the 19 ALJ asked the VE to assume an individual with the same age, education and work experience as 20 Plaintiff. AR 55. For the first hypothetical, the ALJ asked the VE to assume an individual who could 21 lift 50 pounds occasionally, and 25 pounds frequently, could stand, walk, and/or sit for six out of eight 22 hours with frequent climbing of ramps or stairs, but only occasionally ladders, ropes or scaffolds, and 23 could frequently stop, kneel, crouch or crawl. The VE testified that the hypothetical individual could 24 perform Plaintiff’s past work. AR 55. 25 For the second hypothetical, the ALJ asked the VE to assume an individual with the same 26 exertional level, but with reduced postural limitations to occasional stooping, kneeling, crouching or 27 crawling. The VE testified that Plaintiff’s past work would not be available. AR 55. However, there 28 would be other jobs, such as amusement park worker and campground attendant. AR 56. 1 For the third hypothetical, the ALJ asked the VE to assume an individual who would 2 additionally miss three or more days of work per month. The VE testified that there would be no jobs 3 available and no past work. AR 56-57. 4 For the fourth hypothetical, Plaintiff’s counsel asked the VE to consider an individual limited 5 to lifting and carrying 20 pounds, standing and walking up to 33 percent of an eight-hour and who 6 could perform postural limitations occasionally. The VE testified that this individual could not 7 perform Plaintiff’s past relevant work and the individual would be limited to sedentary work. AR 57. 8 Medical Record 9 The relevant medical record was reviewed by the Court and will be referenced below as 10 necessary to this Court’s decision. 11 The ALJ’s Decision 12 Using the Social Security Administration’s five-step sequential evaluation process, the ALJ 13 determined that Plaintiff was not disabled under the Social Security Act. AR 12-26. Specifically, the 14 ALJ found that Plaintiff had not engaged in any substantial gainful activity since March 23, 2015, his 15 alleged onset date. AR 17-18. The ALJ identified lumbar degenerative disc disease and obesity as 16 severe impairments. AR 18. The ALJ determined that the severity of Plaintiff’s impairments did not 17 meet or equal any of the listed impairments. AR 18-19. 18 Based on a review of the entire record, the ALJ found that Plaintiff retained the residual 19 functional capacity (“RFC”) to perform medium work, including lifting and carrying 50 pounds 20 occasionally and 25 pounds frequently and standing or walking for six hours in an eight-hour workday 21 with restrictions to frequently stooping, kneeling, crouching, crawling and climbing ramps and stairs 22 and occasionally climbing ladders, ropes and scaffolds. AR 19-25. With this RFC, the ALJ found that 23 Plaintiff could perform his past relevant work as a hospital cleaner. AR 25-26. The ALJ therefore 24 concluded that Plaintiff was not disabled under the Social Security Act. AR 26. 25 SCOPE OF REVIEW 26 Congress has provided a limited scope of judicial review of the Commissioner’s decision to 27 deny benefits under the Act. In reviewing findings of fact with respect to such determinations, this 28 Court must determine whether the decision of the Commissioner is supported by substantial evidence. 1 42 U.S.C. § 405(g). Substantial evidence means “more than a mere scintilla,” Richardson v. Perales, 2 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 3 1119, n. 10 (9th Cir. 1975). It is “such relevant evidence as a reasonable mind might accept as 4 adequate to support a conclusion.” Richardson, 402 U.S. at 401. The record as a whole must be 5 considered, weighing both the evidence that supports and the evidence that detracts from the 6 Commissioner’s conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the 7 evidence and making findings, the Commissioner must apply the proper legal standards. E.g., 8 Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner’s 9 determination that the claimant is not disabled if the Commissioner applied the proper legal standards, 10 and if the Commissioner’s findings are supported by substantial evidence. See Sanchez v. Sec’y of 11 Health and Human Servs., 812 F.2d 509, 510 (9th Cir. 1987). 12 REVIEW 13 In order to qualify for benefits, a claimant must establish that he or she is unable to engage in 14 substantial gainful activity due to a medically determinable physical or mental impairment which has 15 lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 16 1382c(a)(3)(A). A claimant must show that he or she has a physical or mental impairment of such 17 severity that he or she is not only unable to do his or her previous work, but cannot, considering his or 18 her age, education, and work experience, engage in any other kind of substantial gainful work which 19 exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The 20 burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 21 1990). 22 DISCUSSION3 23 Plaintiff contends that the ALJ erred by (1) improperly evaluating opinion evidence from Nurse 24 Practitioner Breena Siliznoff, his treating provider; and (2) improperly evaluating Plaintiff’s subjective 25 complaints. 26 27 3 The parties are advised that this Court has carefully reviewed and considered all of the briefs, including arguments, points and authorities, declarations, and/or exhibits. Any omission of a reference to any specific argument or brief is not to 28 be construed that the Court did not consider the argument or brief. 1 A. The ALJ Did Not Err in Evaluating the Opinion Evidence from Nurse Practitioner 2 Siliznoff 3 Plaintiff argues that the ALJ improperly rejected the opinion of his treating provider, Breena 4 Siliznoff, NP. Specifically, Plaintiff contends that the ALJ erred in evaluating NP Siliznoff’s opinion 5 that Plaintiff could never lift or carry greater than 20 pounds bilaterally, could only occasionally bend 6 at the waist and occasionally kneel and crouch and could stand and walk for four hours each during the 7 day. (Doc. No. 10 at 13.). The Court disagrees. 8 On June 20, 2015, NP Siliznoff completed a form in connection with Plaintiff’s application for 9 long term disability income benefits. In a check-the-box form, NP Siliznoff opined that Plaintiff could 10 sit eight hours at one time, stand four hours at one time and walk four hours at one time. He could 11 never lift more than 20 pounds and could only occasionally bend at the waist, kneel or crouch. AR 12 399. 13 At the time Plaintiff’s claim was filed, the opinions of nurse practitioners as treating sources 14 were not given the same weight as physicians’ opinions. See Leon v. Berryhill, 880 F.3d 1041, 1046 15 (9th Cir. 2017). Under the regulations then-applicable to Plaintiff’s claims, NP Siliznoff is not an 16 “acceptable medical source,” but rather an “other source.” See Ghanim v. Colvin, 763 F.3d 1154, 17 1161 (9th Cir. 2014) (acceptable medical sources are generally limited to physicians and other 18 qualified specialists); 20 C.F.R. 404.1513(d) (effective September 3, 2013 to March 26, 2017) (“other 19 sources” include nurse practitioners and physicians’ assistants). Although required to consider 20 evidence from “other sources,” an ALJ may discount testimony from these other sources by providing 21 reasons “germane to each witness for doing so.” See Dale v. Colvin, 823 F.3d 941, 943 (9th Cir. 22 2016); Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 23 Here, the ALJ assigned NP Siliznoff’s opinion “very little weight” because it was “an 24 underestimate” of Plaintiff’s abilities and “inconsistent with the opinions of Dr. Hoover, Dr. Rios, Dr. 25 Georgis, Jr., State agency opinion, and the overall evidence of record.” AR 24. The ALJ may reject 26 the competent testimony of “other medical sources” if it is inconsistent with evidence in the record or 27 if it is contradicted by another medical specialist. Dale, 823 F.3d at 944–45; Molina, 674 F.3d at 1111; 28 see also Shorter v. Saul, 777 Fed.App’x 209, 211 (9th Cir. 2019) (finding ALJ properly rejected other 1 source opinion of nurse practitioner based on inconsistency with objective medical evidence, including 2 treatment notes showing largely unremarkable examinations and findings of improvement with 3 medication). 4 According to the record, Plaintiff sustained a work injury on January 6, 2014, but returned to 5 full duty work in June 2014 “with minimal problems” and only “mild low back pain” AR 337, 356. 6 He reported further injury to his lower back in July 2014 but returned to duty in May 2015 with 7 permanent restrictions of “no very heavy lifting & no repetitive bending or stooping.” AR 362, 364. 8 Consistent with that view, on May 15, 2015, Dr. Theodore Georgis, Jr. completed a Qualified Medical 9 Evaluation report and opined that Plaintiff should have the following “prophylactic work preclusions: 10 No very heavy lifting; or repeated bending or stooping.” AR 22, 323. A March 17, 2016 x-ray of the 11 lumbar spine showed only mild degenerative changes. AR 20-21, 328. On March 22, 2016, Dr. 12 Thomas Rios, a consultative medical examiner, concluded that Plaintiff could lift and carry 50 pounds 13 occasionally, 25 pounds frequently, could frequently climb steps, stairs, ladders, scaffolds and ropes 14 and could frequently stoop, crouch, kneel and crawl. AR 23, 332. On April 15, 2016, Dr. J. Linder, a 15 state agency physician, opined that Plaintiff could lift and carry 50 pounds occasionally, 25 pounds 16 frequently, could stand and/or walk about 6 hours in an 8-hour workday, could sit about 6 hours in an 17 8-hour workday, could frequently climb ramps/stairs, stoop, kneel, crouch and crawl and could 18 occasionally climb ladders/ropes and scaffolds. AR 25, 66-68. On May 23, 2016, Dr. J. Singh, also a 19 state agency physician, opined that Plaintiff could lift and carry 50 pounds occasionally, 25 pounds 20 frequently, could stand and/or walk about 6 hours in an 8-hour workday, could sit about 6 hours in an 21 8-hour workday, could frequently climb ramps/stairs, stoop, kneel, crouch and crawl and could 22 occasionally climb ladders/ropes and scaffolds. AR 25, 78-79. In August 2016, Dr. Gerald Hoover 23 completed an Attending Physician’s Statement and opined that Plaintiff was limited to no repetitive 24 bending and no very heavy lifting. AR 23, 336. In late 2016, 2017 and 2018, Plaintiff’s treatments 25 consisted primarily of ibuprofen, “hot showers,” warm and cold compresses, and Tylenol. AR 404, 26 408, 411-13, 415, 427. 27 As noted above, NP Siliznoff opined that Plaintiff could stand and walk only four hours each, 28 could not lift more than 20 pounds and could only occasionally bend at the waist, kneel or crouch. 1 However, as determined by the ALJ, that opinion is inconsistent with the objective medical evidence 2 identifying only mild degenerative changes in Plaintiff’s lumbar spine and conservative treatment. NP 3 Siliznoff’s opinion also is inconsistent with multiple physician opinions in the record that identify no 4 restrictions on Plaintiff’s ability to stand and walk and limit him only to no “very heavy” lifting or 5 repeated bending or stooping. Accordingly, the Court finds that the ALJ provided sufficiently 6 germane reasons for discounting the opinion of NP Siliznoff. 7 B. The ALJ Properly Evaluated Plaintiff’s Subjective Complaints 8 Plaintiff contends that the ALJ erred in evaluating Plaintiff’s subjective complaints. In 9 deciding whether to admit a claimant’s subjective complaints of pain, the ALJ must engage in a two- 10 step analysis. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014); Batson v. Comm’r of Soc. Sec. 11 Admin., 359 F.3d 1190, 1196 (9th Cir. 2004). First, the claimant must produce objective medical 12 evidence of his impairment that could reasonably be expected to produce some degree of the symptom 13 or pain alleged. Garrison, 759 F.3d at 1014. If the claimant satisfies the first step and there is no 14 evidence of malingering, the ALJ may reject the claimant’s testimony regarding the severity of his 15 symptoms only by offering specific, clear and convincing reasons for doing so. Id. at 1015. 16 Here, the ALJ found that Plaintiff’s medically determinable impairments could reasonably be 17 expected to cause the alleged symptoms, but discounted his statements concerning the intensity, 18 persistence and limiting effects of those symptoms. AR 20. The ALJ was therefore required to 19 provide specific, clear and convincing reasons for discounting Plaintiff’s testimony. 20 The Court finds that the ALJ provided specific, clear and convincing reasons for discounting 21 Plaintiff’s testimony. First, the ALJ considered that Plaintiff’s report of limited daily activities could 22 not be attributed to his medical condition. AR 20. Although lack of supporting medical evidence 23 cannot form the sole basis for discounting testimony, it is a factor that the ALJ can consider. See 24 Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). Here, Plaintiff alleged disabling symptoms due 25 to a back injury, but the objective diagnostic evidence identified only mild degenerative changes in 26 Plaintiff’s lumbar spine after his alleged onset date. AR 21, 328. Further, as determined by the ALJ, 27 Plaintiff’s allegations contrasted with his essentially normal clinical presentation and statements. AR 28 20. For example, the ALJ noted that upon examination by Dr. Georgis, Jr., in April 2015, Plaintiff 1 reported his physical activities and travel were slightly affected by his condition, and his sleep was 2 moderately affected. AR 22, 314-15. The ALJ also noted that Plaintiff had a normal gait, was able to 3 heel walk, toe walk and tandem walk, but toe walking caused an increase in his low back pain. He 4 was able to squat about 30-40% of the way down, he had reduced lumbar range of motion, 5/5 motor 5 strength, negative straight leg raising, and full hip range of motion with increased back pain. AR 22, 6 316-17. 7 Additionally, the ALJ noted that upon examination by Dr. Rios in March 2016, Plaintiff was 8 capable of getting on and off the examination table and was able to bend down to pick up his 9 eyeglasses case that he dropped on the floor with minimal difficulties. His station and gait were 10 normal, and his Romberg test was negative. His straight leg raising was negative to 80 degrees 11 bilaterally from seated and supine positions. His motor strength was 5/5 in the upper and lower 12 extremities, his grip strength was normal, and his muscle bulk and tone also were normal. Dr. Rios 13 found that Plaintiff had some limitation to lumbar flexion/extension movement with tenderness on 14 palpation of the mid and lower lumbar spine, but no spasms or findings of nerve root compression. 15 AR 21-22, 331-32. 16 Second, the ALJ appropriately considered Plaintiff’s conservative medical treatment for his 17 back pain, concluding that Plaintiff’s use of medications did not suggest the presence of an impairment 18 that was more limiting AR 20, 22. An ALJ may permissibly consider a claimant’s conservative 19 treatment in evaluating subjective complaints of pain. See Parra v. Astrue, 481 F.3d 742, 750-51 (9th 20 Cir. 2007). In this instance, the ALJ cited evidence that after the alleged onset date of March 23, 21 2015, Plaintiff treated with warm compresses, ibuprofen, hot showers, and was prescribed a Lidoderm 22 patch .AR 21, 404, 408, 411, 417. The ALJ also acknowledged Plaintiff’s hearing testimony that he 23 had not had much treatment for his back pain, using hot compresses and ibuprofen. AR 20, 49-50. 24 Plaintiff contends that the ALJ erred by failing to obviously consider the factors set forth in the 25 regulations. (Doc. No. 10 at 21.) Pursuant to 20 C.F.R. §§ 404.1529, factors relevant to a claimant’s 26 symptoms which the ALJ will consider include: (1) the claimant’s daily activities; (2) the location, 27 duration, frequency, and intensity of pain or other symptoms; (3) precipitating and aggravating factors; 28 (4) the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken 1 to alleviate pain or other symptoms; (5) treatment, other than medication, the claimant receives or has 2 received for relief of pain or other symptoms; (6) any measures the claimant uses or has used to relieve 3 pain or other symptoms (e.g., lying flat on the back, standing for 15 to 20 minutes every hour, sleeping 4 on a board, etc.); and (7) other factors concerning the claimant’s functional limitations and restrictions 5 due to pain or other symptoms. 20 C.F.R. § 404.1529(c)(3)(i)-(vii). 6 Plaintiff's contention that the ALJ did not consider these factors is not supported by the record. 7 The ALJ expressly stated that in determining Plaintiff's RFC, she considered “all symptoms and the 8 extent to which these symptoms could reasonably be accepted as consistent with the objective medical 9 evidence and other evidence, based on the requirements of 20 CFR 404.1529 and SSR 16-3p.” AR 19. 10 Moreover, as discussed above, the ALJ expressly addressed Plaintiff’s daily activities, including his 11 hearing testimony (AR 19, 20), treatment (AR 20-21), medications (AR 20-21), and other measures 12 used to relieve pain (AR 21). The ALJ also took into account Plaintiff’s testimony regarding pain and 13 any precipitating or aggravating factors. AR 19-20. 14 As a final matter, Plaintiff argues that the ALJ erred in evaluating Plaintiff’s subjective 15 complaints by failing to consider his “stellar work history.” (Doc. 10 at 22.) However, “courts have 16 rejected the contention that the ALJ is required to address a claimant’s exemplary work history in 17 assessing her credibility.” Coffman v. Berryhill, No. 2:17-cv-2088 CKD, 2018 WL 6419676, at *6 18 (E.D. Cal. Dec. 6, 2018) (quotation omitted) (collecting cases); see also Goldman v. Berryhill, No. 19 2:17-cv-2450 DB, 2019 WL 498996, at *5 (E.D. Cal. Feb. 8, 2019); Smith v. Colvin, No. 11-3045, 20 2013 WL 1156497, at *7 (E.D. Cal. Mar. 19, 2013) (rejecting claimant’s argument that ALJ was 21 required to consider good work history; noting lack of authority “suggesting an ALJ is bound to make 22 a certain credibility determination based on a lengthy or ‘good’ work history”); Henderson v. Colvin, 23 No. 14-870, 2015 WL 5768934, at *6 (C.D. Cal. Sept. 30, 2015) (“Plaintiff’s assertion that his fairly 24 ‘consistent and continuous employment for 32 years’ is necessarily probative of his credibility is 25 equally unconvincing.”). 26 The Court finds that the ALJ’s assessment of Plaintiff’s subjective complaints is free of 27 reversible error. 28 /// 1 CONCLUSION 2 Based on the foregoing, the Court finds that the ALJ’s decision is supported by substantial 3 evidence in the record as a whole and is based on proper legal standards. Accordingly, this Court 4 DENIES Plaintiff’s appeal from the administrative decision of the Commissioner of Social Security. 5 The Clerk of this Court is DIRECTED to enter judgment in favor of Defendant Andrew M. Saul, 6 Commissioner of Social Security, and against Plaintiff Leo Morgan. 7 8 IT IS SO ORDERED. 9 Dated: October 27, 2020 /s/ Barbara A. McAuliffe _ 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28