(SS) Flores v. Commissioner of Social Security ( 2022 )

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 JUAN TONY FLORES, Case No. 1:20-cv-00701-BAK 13 Plaintiff, FINAL JUDGMENT AND ORDER REGARDING PLAINTIFF’S SOCIAL 14 v. SECURITY COMPLAINT 15 COMMISSIONER OF SOCIAL (ECF Nos. 1, 18). SECURITY, 16 Defendant. 17 18 19 20 This matter is before the Court on Plaintiff’s complaint for judicial review of an 21 unfavorable decision by the Commissioner of the Social Security Administration regarding his 22 application for disability insurance benefits. The parties have consented to entry of final judgment 23 by the United States Magistrate Judge under the provisions of 28 U.S.C. § 636(c) with any appeal 24 to the Court of Appeals for the Ninth Circuit. (ECF No. 11). 25 Plaintiff presents the following issues for adjudication: 26 1. The ALJ failed to properly evaluate the severity and limiting effects of Plaintiff’s visual impairments, rendering the RFC unsupported because it fails to 27 consider limitations from all of Plaintiff’s medically determinable impairments. 28 2. The ALJ failed to include work-related limitations in the RFC consistent with convincing reasons for discounting Plaintiff’s subjective complaints, and failed to 2 develop the record despite acknowledging that the opinion from Dr. Wagner was inadequate. 3 3. The ALJ erred by improperly discounting the opinion from Mr. Flores, a third- 4 party witness, without proper evaluation as required by the regulations. 5 (ECF No. 18, p. 1). 6 Having reviewed the record, administrative transcript, the briefs of the parties,1 and the 7 applicable law, the Court finds as follows: 8 I. ANALYSIS 9 A. ALJ’s Evaluation of Plaintiff’s Vision Impairments 10 Plaintiff first argues that the Administrative Law Judge’s (ALJ) residual functional 11 capacity (RFC) assessment is unsupported by substantial evidence because the ALJ did not 12 properly evaluate the severity and limiting effects of Plaintiff’s visual impairments. (ECF No. 18, 13 p. 8). Specifically, Plaintiff argues that the ALJ mischaracterized the records regarding Plaintiff’s 14 visual impairments as normal and ignored the observations of agency employees. (Id. at 9-10). 15 A claimant’s RFC is “the most [a claimant] can still do despite [his] limitations.” 20 16 C.F.R. §§ 404.1545(a), 416.945(a); see also 20 C.F.R. Part 404, Subpart P, Appendix 2, 17 § 200.00(c) (defining an RFC as the “maximum degree to which the individual retains the 18 capacity for sustained performance of the physical-mental requirements of jobs”). In formulating 19 the RFC, the ALJ weighs medical and other source opinions, as well as the claimant’s credibility. 20 See, e.g., Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226 (9th Cir. 2009); Morgan v. 21 Comm’r of Soc. Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999) (holding that ALJ was 22 “responsible for resolving conflicts” and “internal inconsistencies” within doctor’s reports); 23 Tommasetti v. Astrue, 533 F.3d 1035, 1041-1042 (9th Cir. 2008) (“[T]he ALJ is the final arbiter 24 with respect to resolving ambiguities in the medical evidence.”). 25 In reviewing findings of fact with respect to such determinations, this Court determines 26 whether the Commissioner’s decision is supported by substantial evidence. 42 U.S.C. § 405(g). 27 1 Plaintiff filed an opening brief on August 5, 2021, and the Commissioner responded on October 6, 2021. 28 (ECF Nos. 18, 21). Plaintiff did not file a reply. 2 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 3 (9th Cir. 1975). It is “such relevant evidence as a reasonable mind might accept as adequate to 4 support a conclusion.” Richardson, 402 U.S. at 401. 5 Here, the ALJ determined Plaintiff’s RFC as follows: 6 After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform sedentary work as defined 7 in 20 CFR 416.967(a). Specifically, the claimant can lift and or carry no more than 10 pounds both occasionally and frequently; he can push and or pull within those 8 weight limits; he can stand and or walk for two hours out of an eight-hour 9 workday, with no prolonged walking greater than 15 minutes at one time; he has no limitations for sitting but he could stand and stretch every two hours for 10-15 10 minutes if needed, falling within the normal breaks and lunch; he is limited to 11 simple, routine, and repetitive tasks in a work environment with few changes regarding the physical environment as well as tasks to be performed; and he cannot 12 perform jobs that require hypervigilance or watching out for the safety of others. 13 (A.R. 20) 14 And regarding the Plaintiff’s visual impairments in connection with Plaintiff’s functional 15 limitations, the ALJ concluded as follows: 16 The claimant has also been diagnosed with the non-severe medically determinable impairments of glaucoma, age related cataracts, and diabetic retinopathy. A non- 17 severe impairment must be a slight abnormality (or a combination of slight abnormalities) that has no more than a minimal effect on the ability to do basic 18 work activities (SSR 16-4p). The medical evidence shows that the claimant’s 19 glaucoma, age related cataracts, and diabetic retinopathy are adequately addressed with medication, and or other treatment, and do not cause the claimant more than 20 minimal functional limitations. 21 The claimant has received little treatment for his glaucoma prior to April 2019, other than eye drops, which have controlled this condition. In an eye examination 22 on January 27, 2017, the claimant reported that he is doing well, and in follow up 23 visits in May, August, and November 2017, he was continued on his medications. The claimant also had normal eye examinations again on January 23, February 5, 24 March 1, May 7, and November 5, 2018, and at most, of these visits, he was again noted as doing well. He was therefore advised to continue his medications and to 25 continue with observation only for this condition [Exhibit 5F/l-2; Exhibit 13F/l, 4- 26 8; Exhibit 14F]. However, during an eye examination on April 9, 2019, the claimant was diagnosed 27 with bilateral, age-related cataracts, moderate non-proliferative diabetic 28 retinopathy, and macular edema, despite the claimant’s Al level still being under controlled with medications, also given a referral to ophthalmology [Exhibit 15F/l- 2 7]. However, there is no indication in the medical evidence of record that the claimant followed up with this referral prior to the hearing on May 29, 2019, and 3 therefore, there is little further medical evidence of record with regard to the claimant’s new diagnoses of bilateral, age-related cataracts and moderate non- 4 proliferative diabetic retinopathy and macular edema. 5 Accordingly, the undersigned finds that the claimant’s medically determinable 6 impairments of glaucoma, age related cataracts, and diabetic retinopathy are non- severe and do not cause the claimant more than minimal functional limitations. 7 (A.R. 18; see also 22-23 (characterizing record of visual impairments as non-severe)). 8 Regarding the ALJ’s finding that the Plaintiff’s visual impairments are “non-severe”, the 9 Court finds that the ALJ’s determination was adequately supported by substantial evidence. As 10 the ALJ observed, numerous records indicated that Plaintiff’s vision impairments were under 11 control and did not cause Plaintiff more than minimal functional limitations. For example, a 12 January 27, 2017 medical visit that addressed Plaintiff’s vision, among other things, states that 13 Plaintiff reported he was “doing well.” (Id. at 334). In a follow up visit on May 18, 2017, he was 14 reported as improving. (Id. at 335). And a July 18, 2017 medical evaluation with Dr. Wagner, a 15 consultative examining physician, noted that Plaintiff had a “history of diabetes with glaucoma, 16 but retained good visual acuity.” (Id. at 344). Further, the ALJ elsewhere in her decision relied on 17 the medical opinions of state agency medical consultants Dr. Frye and Dr. Bobba, both of whom 18 concluded that Plaintiff did not have severe visual impairments. (Id. at 24, 68, 84). Lastly, there 19 was no record evidence of Plaintiff’s bilateral, age-related cataracts, moderate non-proliferative 20 diabetic retinopathy, and macular edema being severe. 21 While Plaintiff correctly points out that some records also document mild or slowly 22 progressing symptoms, such records do not contradict the ALJ’s characterization of Plaintiff’s 23 visual impairments as “non-severe.” (ECF No. 18, p. 9 (citing A.R. 418, 422, 424)). Similarly, 24 although the ALJ did not specifically address comments from two agency employees—that (1) 25 Plaintiff wore glasses and still “had vision problems as he had to bring up paper close to his eyes” 26 (A.R. 187) and (2) Plaintiff had to hold a smartphone “really close to his face to be able to see” 27 (A.R. 222)—Plaintiff fails to explain how such observations would have ultimately changed the 28 2 v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (noting that error is harmless 3 when it is “inconsequential to the ALJ’s determination that claimant could perform ‘light work’”) 4 (internal citation omitted). Accordingly, even crediting such observations as true, the Court 5 cannot say that a reasonable ALJ “could have reached a different disability determination.” Id. at 6 1056. B. ALJ’s Discounting of Plaintiff’s Subjective Complaints 7 Plaintiff next argues that the ALJ “failed to set forth convincing reasons for discounting 8 Plaintiff’s alleged symptoms and limitations.” (ECF No. 18, p. 10). Specifically, Plaintiff argues 9 that the ALJ improperly rejected Plaintiff’s complaints regarding his back pain as unsupported by 10 11 medical evidence, incorrectly assumed that Plaintiff had not pursued treatment, and inconsistently 12 weighed the opinion of Dr. Wagner. (Id. at 11-12). The Ninth Circuit has provided the following 13 guidance regarding a plaintiff’s subjective complaints: 14 Once the claimant produces medical evidence of an underlying impairment, the Commissioner may not discredit the claimant’s 15 testimony as to subjective symptoms merely because they are unsupported by objective evidence. Bunnell v. Sullivan, 947 F.2d 16 341, 343 (9th Cir. 1991) (en banc); see also Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986) (“it is improper as a matter of law 17 to discredit excess pain testimony solely on the ground that it is not fully corroborated by objective medical findings”). Unless there is 18 affirmative evidence showing that the claimant is malingering, the 19 Commissioner’s reasons for rejecting the claimant’s testimony must be “clear and convincing.” Swenson v. Sullivan, 876 F.2d 683, 687 20 (9th Cir. 1989). General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence 21 undermines the claimant’s complaints. 22 Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995), as amended (Apr. 9, 1996). 23 As an initial matter, the ALJ concluded that Plaintiff’s “medically determinable 24 impairments could reasonably be expected to cause the alleged symptoms.” (A.R. 21). Because 25 there is no affirmative evidence showing that Plaintiff was malingering, the Court looks to the 26 ALJ’s decision for clear and convincing reasons, supported by substantial evidence, for rejecting 27 Plaintiff’s testimony. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 28 2 affirmative evidence that the claimant is malingering.”); Johnson v. Shalala, 60 F.3d 1428, 1433 3 (9th Cir. 1995) (noting that findings regarding a plaintiff’s subjective complaints of pain “must be 4 supported by clear and convincing reasons why the [plaintiff’s] testimony of excess pain was not 5 credible, and must be supported by substantial evidence in the record as a whole”). 6 Here, the ALJ summarized as follows the reasons for discounting Plaintiff’s subjective 7 complaints: 8 The claimant is a 44-year old man who alleges disability based on diabetes, 9 glaucoma, feet and lower back problems, a learning problem, and a cyst on buttocks, status post-surgery. The claimant has alleged that there is nothing he can 10 do about his condition since he was born with it, and he still has problems with reading and talking [Exhibit 2E]. 11 After careful consideration of the evidence, the undersigned finds that the 12 claimant’s medically determinable impairments could reasonably be expected to 13 cause the alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely 14 consistent with the medical evidence and other evidence in the record for the reasons explained in this decision. 15 As for the claimant’s statements about the intensity, persistence, and limiting 16 effects of his or her symptoms, they are inconsistent because the claimant has received minimal treatment for his impairments that has also been routine and 17 conservative in nature, as discussed further below. The claimant has not had any 18 surgeries nor have any surgeries been recommended. In addition, as discussed further below, the claimant has, at times, declined recommended treatment. 19 In addition, in terms of the claimant’s lumbar spine, imaging studies have shown 20 only mild to moderate findings. An x-ray of the claimant’s lumbar spine, taken on October 3, 2016, showed multilevel degenerative discopathy and 21 spondyloarthropathy as well as a minimal wedge compression deformity at Tl 2, 22 which suggests old trauma [Exhibit IF/I]. Further, the claimant has received little treatment for his back. In September 2016, 23 the claimant was diagnosed with chronic low back pain, without sciatica, and 24 given a referral to physical therapy. He was also advised to use a heating pad and or warm shower to help relax muscles [Exhibit 3F/l 7-20]. However, there is little 25 medical evidence of record to indicate that the claimant followed up with the referral to physical therapy. 26 The claimant had another x-ray of his lumbar spine taken on July 18, 2017, with 27 the same findings as the previous x-ray in October 2016 [Exhibit 1 1F/3]. 28 However, again, there is little further medical evidence of record to indicate that until March 28, 2019, when the claimant complained to his primary care physician 2 of worsening low back pain. However, the claimant had a normal physical examination at this time, with negative straight leg raising tests, and a normal gait. 3 The only findings were tenderness to palpation of the claimant’s lumbar spine, as well as paraspinal muscle tenderness and limited range of motion with abduction 4 and forward flexion due to pain. The claimant was diagnosed with chronic back 5 pain greater than three months’ duration, and given a referral to physical therapy and encouraged as to gentle stretching. In addition, on April 2, 2019, an x-ray of 6 the claimant’s lumbar spine indicated no significant changes compared with the x- rays taken on July 18, 2017 [Exhibit I IF/I; Exhibit ISF/8-10]. 7 Nonetheless, the claimant was evaluated by Dr. Garcia-Diaz at Ortho Spine on 8 April 18, 2019. The claimant reported having back pain since 1994, with 9 worsening in the last two years. He also reported that pain medications do not help and so he does not use pain medication. He stated he can take care of his personal 10 needs but cannot engage in strenuous activities, cannot travel anywhere for longer than one-half hour, cannot sit for more than 10 minutes, and cannot sleep more 11 than six hours. However, on examination, the claimant had a normal gait, and 12 normal ranges of motion. He did have some tenderness to palpation of his thoracic and lumbar spine, but straight leg raising tests were negative. Dr. Garcia-Diaz 13 diagnosed the claimant with muscle spasm of the lumbar spine, fracture of thoracic vertebra, and sacral spina bifida without hydrocephalus. He recommended that the 14 claimant continue with self-directed care, including activity modification, ice 15 packs, and limited bed rest and medications as needed. Dr. Garcia-Diaz also noted that the claimant would benefit from physical therapy, lifestyle modifications, and 16 aerobic exercise as tolerated [Exhibit l 7F]. 17 The claimant subsequently began physical therapy on May 6, 2019, at which time he reported that he was born with “a hole in his back”; however, despite sacral 18 surgery in 1994 to repair this condition, he has continued to experience back pain. 19 The claimant was scheduled for two physical therapy visits per week for five weeks; however, at his next visit on May 8, 2019, the claimant reported that he is 20 not feeling better since his first visit, and has been unable to sit, stand, or even lie down on his back after the first visit. He also reported that he does not feel that the 21 home exercises are helpful. There is also little further medical evidence of record 22 to indicate whether the claimant continued to follow up with physical therapy. 23 (A.R. 21-22). 24 Regarding Plaintiff’s “minimal treatment for his impairments that has also been routine 25 and conservative in nature,” the Court finds that the ALJ’s determination was adequately 26 supported by substantial evidence. For example, in response to Plaintiff’s complaints of 27 “[c]hronic low back pain,” Plaintiff was advised to use a “[h]eating pad or warm shower” to relax 28 his muscles. (A.R. 305). Additionally, although Plaintiff complained of pain being a “10/10 on a 2 treatment options.2 (A.R. 505-06). See Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) 3 (noting that history of conservative treatment can undermine subjective reports regarding degree 4 of pain experienced). 5 While the Plaintiff argues that the ALJ improperly discredited Plaintiff’s subjective 6 complaints as not supported by “further medical evidence,” a lack of medical evidence is indeed a 7 proper factor to consider. (A.R. 22); see Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) 8 (“Although lack of medical evidence cannot form the sole basis for discounting pain testimony, it 9 is a factor that the ALJ can consider in his credibility analysis.”). Notably, the ALJ did not solely 10 discount Plaintiff’s subjective complaints based on a lack of supporting evidence but also noted 11 that the complaints were inconsistent with the available medical evidence. Similarly, while 12 Plaintiff takes issue with the ALJ noting that Plaintiff had apparently failed to follow-up with 13 further physical therapy after May 8, 2019, noting that the administrative hearing was held a short 14 time after this visit on May 29, 2019, the ALJ’s statement must be read in the context of 15 16 Plaintiff’s earlier history in not pursuing treatment. (A.R. 21 -22 (“The claimant had another x-ray 17 of his lumbar spine taken on July 18, 2017, with the same findings as the previous x-ray in 18 October 2016 [Exhibit 1 1F/3]. However, again, there is little further medical evidence of record 19 to indicate that the claimant followed up with physical therapy or any other treatment for his back 20 until March 28, 2019, when the claimant complained to his primary care physician of worsening 21 low back pain.”)). In light of the ALJ’s entire reasoning, the Court cannot conclude that the ALJ’s 22 conclusion as to Plaintiff’s lack of pursuing treatment was unsupported by substantial evidence. 23 Lastly, regarding Dr. Wagner’s opinion, Plaintiff’s notes that the ALJ gave this opinion 24 only partial weight for failing to “adequately consider the combination of the claimant’s bilateral 25 foot disorder and degenerative disc disease of the lumbar spine, or the claimant’s subjective 26 27 2 The Court notes that “medications as needed” were also recommended. See Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be controlled effectively with 28 medication are not disabling for the purpose of determining eligibility for SSI benefits.”). 2 complaints about his pain. (ECF No. 18, p. 12 (citing A.R. 24)). However, the fact that the ALJ 3 credited Plaintiff’s subjective complaints more “generously” than Dr. Wagner did does not mean 4 that the ALJ erred for failing to completely credit Plaintiff’s complaints, especially in light of the 5 many reasons noted above for not doing so. (A.R. 24). Relatedly, Plaintiff’s contention that the 6 ALJ had a duty “to further develop the record for a medical assessment” after concluding that Dr. 7 Wagner’s opinion was lacking is mistaken. (ECF No. 18, p. 12). “An ALJ’s duty to develop the 8 record further is triggered only when there is ambiguous evidence or when the record is 9 inadequate to allow for proper evaluation of the evidence.” Mayes v. Massanari, 276 F.3d 453, 10 459-60 (9th Cir. 2001). Notably, “the mere absence of an opinion from an examining physician 11 does not give rise to a duty to develop the record; rather, that duty is triggered only where there is 12 an inadequacy or ambiguity.” Harrison v. Saul, No. 1:19-CV-01683-BAM, 2021 WL 1173024, at 13 *5 (E.D. Cal. Mar. 29, 2021). In this case, there was no inadequacy or ambiguity that triggered a 14 duty to develop the record. 15 16 In conclusion, the Court finds that the ALJ provided clear and convincing reasons for the 17 weight given to Plaintiff’s subjective symptom testimony. 18 C. ALJ’s Discounting of Opinion of Mr. Flores, a Third-party Witness 19 Lastly, Plaintiff argues that the ALJ erred by discounting the third-party statement of 20 Plaintiff’s father, Juan Antonio Flores, regarding Plaintiff’s limitations and opining that Plaintiff 21 was unable to work. (ECF No. 18, pp. 12-13; A.R. 212). Specifically, Plaintiff argues that the 22 ALJ improperly rejected the statement because Mr. Flores is not a medical professional and did 23 not provide germane reasons to discount the statement. (Id. at 13-14). 24 “In determining whether a claimant is disabled, an ALJ must consider lay witness 25 testimony concerning a claimant’s ability to work.” Stout, 454 F.3d at 1053. Such testimony is 26 competent evidence and “cannot be disregarded without comment.” Nguyen v. Chater, 100 F.3d 27 1462, 1467 (9th Cir.1996). If an ALJ disregards the testimony of a lay witness, the ALJ must 28 2 reasons must be specific. Stout, 454 F.3d at 1054 (explaining that “the ALJ, not the district court, 3 is required to provide specific reasons for rejecting lay testimony”). Additionally, an ALJ may not 4 discredit lay testimony on the basis that the person is not a medical expert. Bruce v. Astrue, 557 5 F.3d 1113, 1116 (9th Cir. 2009) (“A lay person, Bruce’s wife, though not a vocational or medical 6 expert, was not disqualified from rendering an opinion as to how her husband’s condition affects 7 his ability to perform basic work activities.”). 8 Here, the ALJ concluded as follows regarding Mr. Flores’ statement: 9 The claimant’s father, Juan Flores, completed a Third Party Function Report on 10 April 13, 2017. Mr. Flores indicated he has known the claimant since birth, 41 years, and because he is retired, he spends all day with the claimant. Mr. Flores 11 stated that the claimant is physically and mentally unable to work. He cannot lift 12 heavy objects or bend down, due to his back condition, and must wear special shoes. Mr. Flores also stated that the claimant has special mental needs. However, 13 Mr. Flores also reported that the claimant is able to take care of his personal needs, prepare simple meals, takes his medications, help around the house, drive a car, go 14 out alone, handle a savings account and count change, watch television, go to 15 church twice per month, and go on walks to help his back. Mr. Flores reported that the claimant does not have any problems getting along with others but does not 16 socialize anymore. He also reported that the claimant has difficulty with authority figures and with handling stress. He further stated that the claimant cannot pay 17 attention more than five to ten minutes and has difficulty following instructions 18 [Exhibit 4E]. Mr. Flores has firsthand knowledge of the claimant’s activities of daily living because he has known the claimant all his life and spends time with 19 him daily, as they live together. However, Mr. Flores is not a medical professional. As a lay witness, he is not competent to make a diagnosis or argue the severity of 20 the claimant’s symptoms in relationship to his ability to work. The opinion of a 21 layperson is far less persuasive on those same issues than are the opinions of medical professionals as relied on herein. In addition, Mr. Flores has reported 22 activities of daily living for the claimant that are not that limited, such as being able to drive a car, take care of his personal needs, prepare simple meals, and take 23 his medications. Ther[e]fore, the undersigned finds that Mr. Flores’ statements 24 have minimal persuasive value and gives them minimal weight. 25 (A.R. 25-26). 26 To the extent that the ALJ discounted Mr. Flores’ statement because he was not a medical 27 professional, the ALJ was incorrect to do so, as a non-expert is not disqualified from rendering an 28 opinion as to how a claimant’s condition affects his ability to perform basic work activities. See 1 | Bruce, 557 F.3d at 1116. However, the ALJ still considered the substance of Mr. Flores’ 2 | statement and rejected it for a germane reason—that Mr. Flores’ own report of Plaintiff's 3 activities, such as being able to drive a car, showed that Plaintiff was not limited to the degree of 4 being disabled. Accordingly, the Court ultimately finds no error in the weight given to Mr. 5 Flores’ statement. 6 I. CONCLUSION AND ORDER Thus, the decision of the Commissioner of Social Security is hereby affirmed. And the Clerk of the Court is directed to close this case. 10 | IT IS SO ORDERED. 11 | Dated: _February 4, 2022 [le ey — UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11