Rutledge v. Berryhill ( 2019 )

1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 DARRYLE JEAN RUTLEDGE, Case No. 18-cv-06601-JSC 6 Plaintiff, CROSS MOTIONS FOR 7 v. SUMMARY JUDGMENT 8 NANCY A. BERRYHILL, Re: Dkt. Nos. 21, 22 Defendant. 9 10 Plaintiff Darryle Jean Rutledge seeks social security benefits for a variety of physical and 11 mental impairments, including impairments stemming from a stroke in 2005 and a heart attack in 12 2006. (Administrative Record (“AR”) 119.) Pursuant to 42 U.S.C § 405(g), Plaintiff filed this 13 lawsuit for judicial review of the final decision by the Commissioner of Social Security 14 (“Commissioner”) denying her benefits claim. Now before the Court are Plaintiff’s and 15 Defendant’s Motions for Summary Judgment.1 (Dkt. Nos. 21 & 22.) Because the decision of the 16 Administrative Law Judge (“ALJ”) to deny benefits is supported by substantial evidence and 17 otherwise free of legal error, the Court DENIES Plaintiff’s motion and GRANTS Defendant’s 18 cross-motion. 19 LEGAL STANDARD 20 A claimant is considered “disabled” under the Social Security Act if she meets two 21 requirements. See 42 U.S.C. § 423(d); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 22 First, the claimant must demonstrate “an inability to engage in any substantial gainful activity by 23 reason of any medically determinable physical or mental impairment which can be expected to 24 result in death or which has lasted or can be expected to last for a continuous period of not less 25 than 12 months.” 42 U.S.C § 423(d)(1)(A). Second, the impairment or impairments must be 26 severe enough that she is unable to do her previous work and cannot, based on her age, education, 27 1 and work experience “engage in any other kind of substantial gainful work which exists in the 2 national economy.” 42 U.S.C. § 423(d)(2)(A). To determine whether a claimant is disabled, an 3 ALJ is required to employ a five-step sequential analysis, examining: (1) whether the claimant is 4 engaging in “substantial gainful activity”; (2) whether the claimant has a severe medically 5 determinable physical or mental impairment” or combination of impairments that has lasted for 6 more than 12 months; (3) whether the impairment “meets or equals” one of the listings in the 7 regulations; (4) whether, given the claimant’s “residual function capacity,” (“RFC”) the claimant 8 can still do her “past relevant work”’ and (5) whether the claimant “can make an adjustment to 9 other work.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012); see also 20 C.R.F. 10 §§404.1520(a), 416.920(a). 11 An ALJ’s “decision to deny benefits will only be disturbed if it is not supported by 12 substantial evidence or it is based on legal error.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 13 2005) (internal quotation marks and citation omitted). “Substantial evidence means such relevant 14 evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal 15 quotation marks and citation omitted). “Where evidence is susceptible to more than one rational 16 interpretation, it is the ALJ’s conclusion that must be upheld.” Id. In other words, if the record 17 “can reasonably support either affirming or reversing, the reviewing court may not substitute its 18 judgment for that of the Commissioner.” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 523 19 (9th Cir. 2014) (internal quotation marks and citation omitted). However, “a decision supported 20 by substantial evidence will still be set aside if the ALJ does not apply proper legal standards.” Id. 21 BACKGROUND 22 I. Procedural Background 23 On July 8, 2014, Plaintiff filed an application for social security disability benefits, 24 alleging disability beginning April 1, 2014. (AR 23.) The Commissioner first denied the 25 application in November 2014, (AR 149), and again denied the application upon reconsideration 26 in April 2015, (AR 155). Plaintiff then filed a request for a hearing before an ALJ. (AR 160.) In 27 February 2017, Plaintiff appeared and testified before ALJ John J. Flanagan. (AR 42.) Dr. Steven 1 expert, also testified at the hearing. (AR 42.) The ALJ held a supplemental hearing in July 2017 2 to allow Dr. Goldstein to testify with the benefit of the full medical record. (AR 91.) Plaintiff, Dr. 3 Goldstein, and vocational expert Lawrence Haney testified at the second hearing. (AR 91.) 4 In August 2017, the ALJ issued an unfavorable decision. (AR 23-32.) The following 5 month, Plaintiff filed a request for review of the ALJ’s decision. (AR 305-07.) In August 2018, 6 the Appeals Council determined that it would not review the ALJ’s findings, making the ALJ’s 7 decision final. (AR 1-7.) 8 II. Administrative Record 9 Plaintiff was born on February 27, 1954 and resides in Fremont, California. (AR 119.) 10 She asserts that she has been unable to work since April 1, 2014 because of the following physical 11 and mental impairments: “Hemiparesis progression and numbness (Rt); Coronary Artery Disease 12 with peripheral edema; Shortness of breath due to past heart attack; Chronic obstructive Sleep 13 Apnea (CPAP used); Siatic [sic] Nerve Damage; Residual from stroke dysphasia and dysphagia 14 progression; depression; Residual from stroke memory loss progression; chronic pain (Rt side of 15 body) and pins tick sensation; Impaired Vision from stroke.” (See AR 44, 119.) 16 A. Medical Evaluations and Physician Statements 17 1. Psychological Examination by Dr. Carol Fetterman 18 Dr. Carol Fetterman is a consultative examining psychologist who met with Plaintiff on 19 September 11, 2014. (AR 673.) Plaintiff reported that she suffers from confusion, depression, 20 and memory loss as a result of her 2005 stroke. (Id.) Dr. Fetterman noted “mild memory 21 impairment” upon testing, and determined that Plaintiff’s ability to “understand, remember, and 22 carry out job instructions” would be mildly impaired. (AR 675-76.) Dr. Fetterman found that 23 Plaintiff’s “ability to maintain attention, concentration, persistence and pace” was also mildly 24 impaired. (AR 676.) Plaintiff’s ability to relate and interact with co-workers and ability to “adapt 25 to day-to-day work activities” were similarly impaired. (Id.) Dr. Fetterman diagnosed Plaintiff 26 with a “Mood Disorder [not otherwise specified] due to General Medical Condition.” (Id.) Dr. 27 Fetterman opined that Plaintiff’s “mental health symptoms” appeared “chronic in nature,” and that 1 Plaintiff would “benefit from starting psychotherapy and medication treatment.” (Id.) Dr. 2 Fetterman characterized Plaintiff’s prognosis as “fair.” (Id.) 3 2. Physical Examination by Neurologist Dr. Farah Rana 4 Dr. Farah Rana is a consultative examining physician who met with Plaintiff on October 5 21, 2014. (AR 679.) Dr. Rana’s report notes Plaintiff’s chief complaints were “stroke, coronary 6 artery disease, lower back pain, and mild asthma.” (Id.) Dr. Rana’s report includes the following 7 diagnoses: (1) history of stroke, noting right-sided hyperreflexia on examination but “[n]o focal 8 motor or sensory deficit”; (2) history of hypertension and history of coronary artery disease, status 9 post myocardial infarction in 2006 and post angioplasty in October 2014; (3) “[c]hronic lower 10 back pain most probably secondary to mild degenerative disc/degenerative joint disease”; and (4) 11 history of mild asthma. (AR 681.) 12 Dr. Rana’s “functional capacity assessment” opined that Plaintiff can stand, sit, and walk 13 six hours out of an eight-hour work day, with breaks. (Id.) Further, Plaintiff can carry “10 pounds 14 frequently and 20 pounds occasionally.” (Id.) She is also able to “handle, manipulate, feel, and 15 finger objects without any problem,” and can occasionally “stoop, bend, kneel, crouch, . . . 16 because of her lower back pain.” (Id.) Dr. Rana opined that Plaintiff does not need an assistive 17 device to ambulate, and “can take public transportation.” (Id.) Dr. Rana also noted that Plaintiff 18 “can manage her day-to-day chores.” (AR 680.) 19 3. Non-Examining State Agency Physicians 20 In November 2014, non-examining state agency physicians reviewed Plaintiff’s medical 21 records and determined that while Plaintiff’s impairments cause some limitations on her ability to 22 perform work activities, those limitations do not prevent her from performing her past relevant 23 work. (AR 131.) Thus, the state agency physicians concluded that Plaintiff’s “condition is not 24 severe enough to keep [Plaintiff] from working.” (Id.) Two different state agency physicians 25 made the same determination upon reconsideration of Plaintiff’s application in March 2015. (See 26 AR 147.) 27 // 1 4. Statement from Primary Care Physician Edsell Bernardo 2 Dr. Edsell Bernardo is Plaintiff’s treating physician. (AR 1245.) In a January 2015 3 “Medical Source Statement,” Dr. Bernardo reported that he had treated Plaintiff for one year and 4 saw Plaintiff “every 3-4 months.”2 (AR 1188.) Dr. Bernardo indicated that Plaintiff’s reported 5 symptoms include pain, fatigue, confusion, depression, edema, and being “unbalanced.” (Id.) Dr. 6 Bernardo further found that Plaintiff experiences numbness, decreased functionality, and 7 “relative[ly] mild weakness in the right side.” (Id.) Dr. Bernardo indicated that most of Plaintiff’s 8 symptoms started in 2010, and that her right-side weakness has grown more pronounced since 9 June 2014. (AR 1192.) Dr. Bernardo further noted that Plaintiff suffered a second heart attack in 10 October 2014. (Id.) 11 Dr. Bernardo reported that Plaintiff requires an assistive device for “standing/walking” due 12 to imbalance, pain, weakness, insecurity, and dizziness. (AR 1191.) Dr. Bernardo indicated that 13 Plaintiff could sit or stand/walk for less than two hours total in an eight-hour work day, and that 14 she would need unscheduled breaks during a work day due to muscle weakness, chronic fatigue, 15 pain, paresthesias, numbness, and adverse effects of medication. (AR 1190.) Further, Plaintiff 16 can occasionally lift less than 10 pounds and rarely lift 10 pounds. (AR 1191.) Dr. Bernardo also 17 reported that Plaintiff has “significant limitations with reaching, handling or fingering.” (Id.) Dr. 18 Bernardo opined that Plaintiff’s symptoms would likely interfere with her “attention and 19 concentration needed to perform even simple work tasks” for at least 25% of a typical work day. 20 (AR 1192.) Dr. Bernardo further opined that Plaintiff would likely miss more than four days of 21 work per month due to her “impairments or treatment.” (Id.) 22 Dr. Bernardo issued a letter in September 2015 stating that Plaintiff has limitations 23 associated with arthritis as well as moderate degenerative disc disease. (AR 1244.) Dr. Bernardo 24 opines that Plaintiff has a limited range of motion and reduced strength which he believes is likely 25 due to her previous stroke. (Id.) As a result, “she experiences pain that radiates down the back of 26 27 2 Dr. Bernardo’s representation regarding the length of the treatment relationship conflicts with a 1 her leg into her foot, causing numbness in that foot.” (Id.) Dr. Bernardo states that Plaintiff was 2 “let go [from her previous employment] in March 2014,” and that she “is not a candidate for full 3 time work” because she has “increasing difficulty performing work tasks due to pain, weakness, 4 and lack of stamina, making it hard for her to keep up with work pace.” (AR 1246.) Dr. Bernardo 5 opined that if Plaintiff were to attempt to work full-time, Plaintiff would likely “miss work more 6 than four days per month due to her condition.” (Id.) 7 5. Medical Interrogatory by Dr. Steven Goldstein 8 In a “Medical Interrogatory” dated March 13, 2017, neurologist Steven Goldstein3 reported 9 that the medical evidence reflects that Plaintiff suffered a stroke and heart attack, has hearing loss, 10 is obese, and has degenerative disc disease of the lumbar spine. (AR 1421.) Dr. Goldstein opined 11 that none of Plaintiff’s impairments meet or equal those described in the “Listing of Impairments” 12 that would qualify her as disabled. (AR 1422.) As for Plaintiff’s functional limitations, Dr. 13 Goldstein concluded that Plaintiff can lift up to 10 pounds frequently and 20 pounds occasionally, 14 can sit, stand, and walk for six total hours in an eight-hour work day, and that Plaintiff has 15 frequent use of her both her feet and hands. (AR 1424, 1426-27.) Dr. Goldstein also indicated 16 that Plaintiff can frequently climb stairs, and occasionally balance, stoop, kneel, crouch, and 17 crawl. (AR 1428.) Further, Dr. Goldstein noted that Plaintiff: can care for herself and perform 18 tasks such as shopping and preparing meals; can use public transportation; does not require a 19 companion to travel or assistive device to ambulate; and can “sort, handle, [and] use paper/files.” 20 (AR 1430.) 21 B. February 2017 ALJ Hearing 22 1. Dr. Richard Cohen’s Testimony 23 Dr. Richard Cohen is a board-certified psychiatrist whose specialties include individual 24 psychotherapy. (AR 1404.) He testified at the February 23, 2017 hearing as a “Psychological 25 Expert.” (AR 45.) Dr. Cohen asked Plaintiff whether she had received treatment from a mental 26 27 3 Dr. Goldstein is identified in the ALJ’s August 2017 decision as an “impartial medical expert,” 1 health professional since 2014, and Plaintiff responded: “No, I haven’t.” (AR 46.) Dr. Cohen 2 testified that Plaintiff had received “no real mental health treatment” and he characterized 3 Plaintiff’s mental condition as a “mood disorder secondary to a stroke.” (Id.) Dr. Cohen further 4 testified that Plaintiff’s “problems are mainly physical,” and that “she may not even have mood 5 disorder if she got some treatment.” (AR 47.) Dr. Cohen opined that Plaintiff’s mood disorder 6 was “potentially reversible with . . . about six months of treatment.” (Id.) 7 2. Dr. Steven Goldstein’s Testimony 8 The ALJ next questioned Dr. Steven Goldstein, a neurologist. (AR 48; see also AR 1440.) 9 Dr. Goldstein indicated that there was a history of smoking in Plaintiff’s medical record; that she 10 had restrictive lung disease; that there was a record of coronary artery disease, and that she had 11 stents placed in 2014. (Id.) Dr. Goldstein testified that there were “multiple diagnoses in the 12 record” but the only “severe” impairments were “coronary artery disease and the chronic 13 restrictive pulmonary disease.” (AR 50.) He stated that neither of the severe impairments meet or 14 equal any of the Commissioner’s listings. (Id.) Dr. Goldstein further testified that Plaintiff was 15 capable of a “light level of physical activity” including the ability to “sit and stand and walk for 16 six hours of the eight-hour day” and the ability to “carry 10 pounds frequently, and 20 pounds on 17 an occasional basis.” (AR 51.) After answering questions about Plaintiff’s physical capabilities, 18 Dr. Goldstein indicated that he had not reviewed the full record and was missing some exhibits; 19 thus, Dr. Goldstein could not make a full finding on the evidence as he had not seen all the 20 documents. (AR 51-54.) The parties determined that Dr. Goldstein would “complete an 21 interrogatory” after reviewing the full record “to see if it change[d]” his testimony. (AR 54.) As 22 previously discussed, Dr. Goldstein completed his “Medical Interrogatory” roughly a month later. 23 (See AR 1421.) 24 3. Plaintiff’s Testimony 25 Plaintiff testified that she completed four years of college to earn two associate degrees: 26 one in electronics technology and another in health information management. (AR 57-58.) She 27 reported past work as an abstractor coder at an employment agency for “about two years” ending 1 in 2014. (AR 60.) Before that, Plaintiff worked as a medical record coder from 2008 to 2010. 2 (AR 60-61.) Both jobs were sedentary, full-time, and Plaintiff used a keyboard. (AR 61.) 3 Plaintiff testified that since 2015 she has worked part-time as “an aide to a disabled 4 counselor” at the Department of Rehabilitation. (AR 44, 59.) Plaintiff testified that she works 15 5 to 20 hours per week doing “data entry, copying, filing” and other clerical work, earning $12.50 an 6 hour. (AR 58-59.) The ALJ asked Plaintiff whether she could work more hours if she wanted to, 7 and Plaintiff responded: “Well [my employer] knows that I have a disability[,] so they don’t put 8 more hours on me.” (Id.) 9 Plaintiff reported that she spends half her work day sitting and the other half standing and 10 walking and that she can lift only one pound at a time. (Id.) Plaintiff testified that her ability to 11 grasp is limited and that she only uses a keyboard for five minutes at a time, and that she becomes 12 fatigued after “[a]bout four hours” of work. (AR 60, 69.) Plaintiff further testified that she could 13 continue her part-time employment “for the next 10 years if [she] had to.” (AR 67.) 14 Plaintiff reported that her employer permits several work-related accommodations due to 15 her conditions, including: elevating her feet to alleviate ankle swelling; periodic stretching when 16 needed; and leaving work early if Plaintiff is too tired. (AR 68-69.) Plaintiff indicated that 17 productivity “doesn’t matter” at her current job, that she is allowed to work at her own pace, and 18 that she takes “about three or four breaks” during a four-hour work shift. (AR 70.) Plaintiff 19 further testified that “it’s been harder to focus” since her stroke in 2005, and that she would be 20 unable to work full-time because she “get[s] tired quicker and more fatigued as the day goes on.” 21 (AR 71-72; see also AR 75 (“If I have to work eight hours for one of the days, I get fatigued.”).) 22 Plaintiff testified that in 2014 she began getting dizzy and losing her balance, and that 23 although she had been doing highly-skilled coding work for years since her 2005 stroke, her 24 condition worsened. (AR 76.) Plaintiff reported that her doctors told her that she “could be 25 having mini strokes” because the “weakness in [her] right side started getting worse.” (Id.) 26 Plaintiff further testified that at the end of the day she feels “so tired and drained and [her] legs are 27 so swollen most of the time [she] just [has] to lay down; either lay down or put” her legs up until 1 The ALJ asked Plaintiff whether there was anything in the treatment record to support 2 Plaintiff’s testimony regarding her edema/leg swelling. (Id.) Plaintiff’s then-counsel could not 3 identify such support in the record, and the ALJ allowed the record to remain open so that Plaintiff 4 could submit a “post hearing brief or letter” identifying treatment records supporting Plaintiff’s 5 testimony regarding leg swelling, edema, or a need to elevate her legs. (AR 78.) 6 4. Vocational Expert’s Testimony 7 Vocational Expert Robert Cottle classified Plaintiff’s recent relevant work history as 8 follows: medical record coder as “sedentary”; abstractor coder as “sedentary”; and current part- 9 time work as a general clerk as “light.” (AR 81.) The ALJ posited the following hypothetical to 10 Mr. Cottle: If I asked you to consider that we have an individual who is 62 years 11 of age; they have actually four years of college; and they have past relevant work as described. For the first hypothetical, I’m finding 12 that there are no mental restrictions. And from an exertional standpoint, if the individual is restricted to light exertional activity 13 as defined in the regulations [at 20 C.F.R. § 404.1567(b)], could they perform the past work? 14 (AR 83.) Mr. Cottle responded that the individual could do so. (Id.). 15 Based on Mr. Cottle’s testimony, the ALJ determined that Plaintiff’s current part-time 16 employment is “highly accommodated in the nature of a sheltered workshop.”4 (AR 84.) Further, 17 the ALJ found that Plaintiff’s part-time employment “appears to be below presumptive substantial 18 gainful activity levels.” (AR 87.) The ALJ scheduled a further hearing to allow Dr. Goldstein to 19 testify once he had the full evidentiary record. 20 C. July 2017 ALJ Hearing 21 1. Dr. Goldstein’s Testimony 22 The ALJ held the second hearing on July 12, 2017. (AR 91.) Dr. Goldstein testified that 23 he reviewed the full medical record and that it indicated that Plaintiff had “degenerative disc 24 25 4 The Commissioner considers a claimant’s earnings from “work activity as an employee 26 (including earnings from work in a sheltered workshop or a comparable facility especially set up for severely impaired persons)” in determining whether the claimant “engaged in substantial 27 gainful activity.” 20 C.F.R. § 404.1574(b)(2). The ALJ noted at the hearing that Plaintiff’s 1 disease in the spine.” (AR 92-93.) In addition, Dr. Goldstein testified that Plaintiff had suffered a 2 “previous heart attack” and a stroke. (Id.) Dr. Goldstein further noted that Plaintiff had hearing 3 loss, was obese, had an injury at work in 2016 involving an injury to her shoulder, and was 4 receiving injections in her right hip for osteoarthritis. (AR 93-94.) 5 Dr. Goldstein testified that Plaintiff has “recovered her strength” on her right side since her 6 shoulder injury in 2016, and that she had “normal strength.” (AR 95.) When asked about 7 Plaintiff’s injections for her hip pain, Dr. Goldstein stated that such degenerative arthritis is 8 common in the neck, back, hips, and knees of individuals as they age. (AR 101.) Dr. Goldstein 9 recommended “weight loss and cardiovascular exercise, especially if you have a problem with the 10 hips” because “injecting and getting medications all the time for all this stuff usually makes 11 matters worse.” (Id.) Dr. Goldstein testified that while there is evidence in the medical record that 12 Plaintiff has degenerative disease in her back, it appears “relatively mild.” (AR 102.) 13 2. Plaintiff’s Testimony 14 The ALJ allowed Plaintiff to supplement the record “in terms of the claimant’s subjective 15 complaints.” (AR 103.) Plaintiff’s then-counsel identified treatment records indicating that 16 Plaintiff has edema in her legs. (AR 103 (referencing AR 1343, 1348).) As for Plaintiff’s part- 17 time employment, Plaintiff testified that she works part-time approximately 70 to 80 hours a 18 month and that she limits the hours she works. (AR 107.) Plaintiff further testified that she 19 suffers from tendinitis and carpal tunnel syndrome due to her work, has difficulty focusing and 20 with her memory, and cannot sit for long periods. (AR 108-09.) The ALJ asked Plaintiff if she is 21 “required to do a lot of keyboarding” at her current part-time job, and Plaintiff responded: 22 “Basically, I don’t do a lot of keyboarding. It’s more or less click here, or click there for things, 23 and filing, and different office work like copying or something like that.” (AR 109.) Plaintiff 24 further clarified that she works four to five hours per day during her shift, and that her 25 employment is ongoing. (See AR 110 (“Basically, I’m trying to get better, and try to get 26 something more . . . .”).) 27 // 1 3. Vocational Expert’s Testimony 2 The ALJ next questioned Vocational Expert Lawrence Haney, referencing Mr. Cottle’s 3 testimony at the previous hearing and noting that “there were three jobs that came out as 4 substantial gainful activity.” (AR 111). First, Plaintiff was a medical record coder, which was a 5 “skilled . . . sedentary job.” (Id.) Next, Plaintiff worked as an abstractor coder, which was “semi- 6 skilled” and sedentary. (Id.) Finally, the ALJ referenced Plaintiff’s current part-time work with 7 the Department of Rehabilitation as “semi-skilled” and “light.” (AR 112.) The ALJ subsequently 8 clarified that Plaintiff’s current part-time work was “just under substantial gainful activity.” (AR 9 116.) 10 Vocational Expert Lawrence Haney provided testimony that tracked Mr. Cottle’s 11 testimony at the February 2017 hearing. The ALJ posited the following hypothetical to Mr. 12 Haney: I would like you to assume that we have an individual who is 63- 13 years-of-age, and they have a high school education, and two years of college. Then they have the past relevant work as described. 14 And, for the first hypothetical, I’m find that there is no mental impairment. And, from an exertional standpoint, the individual is 15 limited as follows. They are able to lift and carry up to 10 pounds frequently. They would be 20 pounds [sic] occasionally. They 16 would be able to sit, stand, and walk, and it would be . . . six of eight hours. And, for each one of them it would be up three hours each 17 time. [T]hey could frequently reach overhead in all other directions. They could handle, finger, feel, and push, and pull in both upper 18 extremities. And, they could frequently operate the controls, both right and left. This is bilaterally. They would never climb ladders 19 or scaffolding. And, they could frequently climb stairs and ramps. The other postural activities like balancing, stooping, kneeling, 20 crouching, and crawling, could all be done occasionally up to one third of the workday. 21 22 (AR 113-114.) The ALJ asked Mr. Haney if a person could perform any of the past three jobs 23 held by Plaintiff with the hypothetical RFC proposed, and Mr. Haney answered that “all three 24 positions would fit the hypothetical.” (AR 115.) 25 D. ALJ’s Decision 26 On August 31, 2017, the ALJ issued a written decision denying Plaintiff’s application and 27 finding that Plaintiff was not disabled within the meaning of the Social Security Act based on the 1 testimony, evidence, and the Social Security Administration’s five-step sequential evaluation 2 process for determining disability. (AR 20.) 3 At step one, the ALJ concluded that Plaintiff had not engaged in substantial gainful activity 4 since April 1, 2014, the alleged onset date, through her date of last insured, which is June 30, 5 2019. (AR 25.) 6 At step two, the ALJ concluded that the objective medical evidence indicated that 7 Plaintiff’s “status post stroke (2005), status post myocardial infarction (2006), hearing loss, 8 degenerative disc disease of the lumbar spine, and obesity” constitute severe impairments. (AR 26 9 (citing 20 C.F.R. 404.1520(c)).) The ALJ considered Plaintiff’s evidence of mild right hip 10 osteoarthritis “in combination with the claimant’s other severe impairments, including obesity, in 11 evaluating her functional limitations.” (AR. 26.) The ALJ further determined that Plaintiff’s 12 obstructive sleep apnea was non-severe based on testimony from Dr. Goldstein “that there were no 13 limitations related to her obstructive sleep apnea” and records which “indicated the condition has 14 been described as ‘mild.’” (Id.) Next, the ALJ determined that there was “insufficient evidence to 15 establish the presence of a conversion disorder as a medically determinable impairment” because 16 the “medical evidence does not elsewhere reference or confirm the presence of such disorder.” 17 (Id.) In addition, the ALJ found that plaintiff did not have vision loss as a result of her stroke 18 because the “medical evidence fails to demonstrate corroborating complaints or findings.” (Id.) 19 As to Plaintiff’s claimed depression, the ALJ found that “the weight of the evidence does 20 not demonstrate that it causes more than a minimal impact on [Plaintiff’s] ability to perform basic 21 mental work activities.” (Id.) The ALJ agreed with Dr. Cohen’s testimony that Plaintiff’s “record 22 demonstrates no more than a mild mood disorder that would respond to treatment within six 23 months.” (Id.) The ALJ noted that “Dr. Cohen is a board-certified psychiatrist specializing in 24 psychotherapy and counseling, and [he] had the opportunity to review the entire evidentiary file.” 25 (AR 26-27.) Further, the ALJ noted that Dr. Cohen’s testimony aligned with the longitudinal 26 record and the medical opinions of consultative psychological examiner Dr. Fetterman “and the 27 state agency consultants, all of whom found no more than mild impairment in areas of mental 1 functioning.” (AR 27.) The ALJ concluded that because the mental impairment is only “mild,” it 2 constitutes a non-severe impairment. (Id.) 3 At the third step, the ALJ concluded that Plaintiff “does not have an impairment or 4 combination of impairments that meets or medically equals the severity of one of the listed 5 impairments in 20 CFR Part 404, Subpart P, Appendix 1.” (AR 27 (citing 20 CFR § 404.1520(d), 6 404.1525, 404.1526).) The ALJ based this conclusion on the testimony of both medical experts at 7 the first hearing, Dr. Cohen and Dr. Goldstein, noting that both “are board-certified in their 8 respective specialties.” (Id.) The ALJ further noted that “[t]he record does not contain a 9 conflicting opinion on this issue.” (Id.) 10 Before reaching step four, the ALJ considered Plaintiff’s RFC and determined that Plaintiff 11 “has the residual functional capacity to perform light work” as defined under 20 C.F.R. § 12 404.1567(b) with the following exceptions: [Plaintiff] can sit, stand, or walk for 6 hours in an 8-hour workday, 13 each for 3 hours at a time. She can frequently reach overhead and in all other directions. She has no restriction in handling, fingering, 14 pushing, and pulling bilaterally. She can frequently use foot controls bilaterally. She can frequently climb ramps or stairs, but 15 never ladders or scaffolds. She can occasionally balance, crouch, crawl, stoop, and kneel. She can work frequently at unprotected 16 heights and around moving mechanical parts. She can frequently operate motor vehicles and have frequent exposure to humidity and 17 wetness, dust, odors, fumes, cold, heat, and noise. She can have occasional exposure to vibrations. 18 (AR 27-28.) 19 In making his RFC determination, the ALJ found that Plaintiff’s “medically determinable 20 impairments could reasonably be expected to produce the . . . alleged symptoms; however, 21 [Plaintiff’s] statements considering the intensity, persistence and limiting effects of these 22 symptoms are not entirely consistent with the medical evidence and other evidence in the record.” 23 (AR 29.) The ALJ cited in support of his determination the objective medical evidence, Plaintiff’s 24 treatment history and subjective symptoms reported to treatment providers, and Plaintiff’s 25 “consistent [part-time] work activity.” (AR 29-31.) 26 As for the medical opinion evidence, the ALJ afforded “great weight” to Dr. Goldstein’s 27 1 supported those responses and “provided an in-depth and well-supported evaluation of the record.” 2 (AR 31.) The ALJ also noted that “Dr. Goldstein’s assessment is internally consistent with that of 3 consultative neurological examiner Dr. Rana, who found [Plaintiff] capable of a wide range of 4 light work, with no manipulative limitations, and some postural limitations due to lower back 5 pain.” (Id.) The ALJ afforded “significant weight” to Dr. Rana’s opinion, finding it supported by 6 her objective findings upon examination. (Id.) Likewise, the ALJ afforded “significant weight to 7 the state agency consultants, who similarly found [Plaintiff] capable of a wide range of light 8 work.” (Id.) The ALJ afforded “limited weight” to the January 2015 medical source statement of 9 Dr. Bernardo and his September 2015 letter, finding that Dr. Bernardo’s “assessment is not 10 corroborated by his accompanying treatment records or in the longitudinal record as a whole.” 11 (Id.) The ALJ also assigned “limited weight” to Dr. Bernardo’s statements regarding Plaintiff’s 12 mental condition, noting that “the record does not evidence that [Dr. Bernardo] has provided any 13 significant treatment for mental health symptoms.” (Id.) In sum, the ALJ determined “after 14 careful consideration of the entire evidentiary file and the hearing testimony,” that Plaintiff’s RFC 15 assessment “is supported by the weight of the evidence.” (AR 32.) 16 At step four, the ALJ cited the vocational experts’ hearing testimony and concluded that 17 Plaintiff “is capable of performing past relevant work as a medical record[ ] coder and abstract 18 coder” because such work “does not require the performance of work-related activities precluded 19 by [Plaintiff’s] residual functional capacity.” (Id. (citing 20 C.F.R. 404.1565).) The ALJ thus 20 determined that Plaintiff “has not been under a disability, as defined in the Social Security Act, 21 from April 1, 2014 through the date of this decision.” (Id. (citing 20 CFR § 404.1520(f)).) 22 Accordingly, the ALJ did not reach step five. 23 DISCUSSION 24 Plaintiff argues that the ALJ’s decision contains reversible legal error because the ALJ 25 failed to: (1) consider the entire record in determining Plaintiff’s RFC at step four; and (2) provide 26 “legally sufficient reasons” for rejecting Plaintiff’s subjective symptom testimony regarding “her 27 restrictive RFC.” (Dkt. No. 21 at 7-12.) The Court addresses each argument in turn and 1 I. RFC Determination 2 Plaintiff’s argument regarding the ALJ’s RFC determination appears primarily intertwined 3 with her argument regarding the ALJ’s assessment of her subjective symptom testimony. (See 4 generally Dkt. No. 21 at 7-12.) However, Plaintiff also argues that in determining Plaintiff’s RFC 5 the ALJ failed to mention the following “known and disclosed impairments” reflected in the 6 treatment records: (1) “Abdominal, groin, leg, and foot pain with limited mobility”; (2) 7 “Dizziness”; (3) “Shortness of Breath”; (4) “ADHD”; (5) “Osteoarthritis Right Hip”; (6) 8 “Asthma”; (7) “Hypertension”; (8) “Hand Tendonitis”; (9) “Anxieties/Adjustment Disorder”; and 9 (10) “Anemia.” (Dkt. No. 21 at 8 (citing AR 46, 133-34, 1089, 1237-38, 1255, 1287, 1327, 1369, 10 1389).) 11 To the extent Plaintiff’s argument suggests that the ALJ was required to discuss every 12 medical condition noted in Plaintiff’s treatment records regardless of severity, Plaintiff cites no 13 authority for that proposition. Indeed, the ALJ was not required to do so. See Vincent v. Heckler, 14 739 F.2d 1393, 1394-95 (9th Cir. 1984) (noting that an ALJ “need not discuss all evidence,” but 15 must instead “explain why significant probative evidence has been rejected”) (internal quotation 16 marks and citation omitted). Further, with the exception of “asthma,” the ALJ’s decision does 17 address the impairments listed above and cites to the medical record in support of his assessment 18 of same. (See AR 26-27 (discussing Plaintiff’s medically determinable mental impairment and 19 concluding that it is non-severe because it “causes no more than ‘mild’ limitation in any of the 20 functional areas”); 29 (discussing Plaintiff’s testimony regarding “history of tendonitis”); id. 21 (discussing Plaintiff’s claimed neurological symptoms stemming from her stroke in 2005 and 22 treatment records and examination findings regarding Plaintiff’s motor and neurological 23 functioning); 30 (discussing Plaintiff’s testimony regarding hypertension and edema and citing 24 treatment records demonstrating “no signs of edema upon physical examination” and “well- 25 controlled hypertension”); id. (discussing Plaintiff’s treatment and monitoring for “residual 26 anemia” resulting from her treatment for a “retroperitoneal hematoma in October 2014,” and 27 noting that Plaintiff’s anemia “improved shortly thereafter”); id. (discussing Plaintiff’s “treatment 1 regarding “shortness of breath” and citing treatment records where Plaintiff denied such symptoms 2 and examinations “routinely evidenc[ing] normal respiratory and cardiac signs and symptoms”). 3 Simply put, there is nothing to suggest that the ALJ committed legal error and did not, as 4 he states in his decision, consider the entire record and assess Plaintiff’s RFC “based on all the 5 evidence with consideration of the limitations and restrictions imposed by the combined effects of 6 all [Plaintiff’s] medically determinable impairments.” (See AR 27-28.) The ALJ’s RFC 7 determination is also supported by substantial evidence of record. The opinions of Dr. Rana and 8 the non-examining state agency physicians track the ALJ’s RFC determination, as does Dr. 9 Goldstein’s March 2017 interrogatory. (See AR 128-29, 143-45, 681, 1424-30.) The medical 10 expert testimony from Dr. Cohen and Dr. Goldstein also supports the ALJ’s RFC determination, 11 and their testimony is based on and cites to the medical record. See Morgan v. Comm’r of Soc. 12 Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) (“Opinions of a nonexamining, testifying medical 13 advisor may serve as substantial evidence when they are supported by other evidence in the record 14 and are consistent with it.”). 15 II. Subjective Symptom Testimony 16 A. Legal Standard 17 The Ninth Circuit has “established a two-step analysis for determining the extent to which 18 a claimant’s symptom testimony must be credited.” Trevizo v. Berryhill, 871 F.3d 664, 678 (9th 19 Cir. 2017). “First, the ALJ must determine whether the claimant has presented objective medical 20 evidence of an underlying impairment which could reasonably be expected to produce the pain or 21 other symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (internal 22 quotation marks and citation omitted). “Second, if the claimant meets the first test, and there is no 23 evidence of malingering, the ALJ can reject the claimant’s testimony about the severity of her 24 symptoms only by offering specific, clear and convincing reasons for doing so.” Id. (internal 25 quotation marks and citation omitted). 26 “The clear and convincing standard is the most demanding required in Social Security 27 cases.” Moore v. Comm’r of Soc. Sec., 278 F.3d 920, 924 (9th Cir. 2002). Thus, the ALJ cannot 1 Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). That said, the ALJ need not accept the plaintiff’s 2 allegations of pain as true, and “may consider inconsistencies either in the claimant’s testimony or 3 between the testimony and the claimant’s conduct . . . and whether the claimant engages in daily 4 activities inconsistent with the alleged symptoms.” Molina, 674 F.3d at 1112 (internal quotation 5 marks and citations omitted). Further, “the ALJ may discredit a claimant’s testimony when the 6 claimant reports participation in everyday activities indicating capacities that are transferable to a 7 work setting.” See id. “Even where those activities suggest some difficulty functioning, they may 8 be grounds for discrediting the claimant’s testimony to the extent that they contradict claims of a 9 totally debilitating impairment.” Id. 10 If the ALJ’s assessment “is supported by substantial evidence in the record, [courts] may 11 not engage in second-guessing.” See Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 12 B. ALJ’s Analysis 13 Applying the two-step analysis, the ALJ first determined that Plaintiff’s ““medically 14 determinable impairments could reasonably be expected to produce the . . . alleged symptoms.” 15 (AR 29.) Because Plaintiff met the first part of the test, the ALJ was required to provide “specific, 16 clear and convincing reasons” for rejecting Plaintiff’s testimony regarding the severity of her 17 symptoms, or else find evidence of malingering. Lingenfelter, 504 F.3d at 1036. Here, the ALJ 18 found no evidence of malingering and instead cited specific inconsistencies between Plaintiff’s 19 statements regarding the “intensity, persistence and limiting effects” of her impairments and both 20 the medical evidence and Plaintiff’s current part-time work. 21 First, the ALJ provided specific examples with citations to Plaintiff’s medical record. 22 With regard to Plaintiff’s alleged upper extremity impairments, the ALJ noted that “[t]he claimant 23 testified that she is unable to use a computer keyboard for more than 5 minutes at a time due to a 24 history of tendonitis, but the record does not document tendonitis or a degenerative impairment of 25 either hand.” (AR 29.) The ALJ further noted an August 2016 treatment record indicating that 26 Plaintiff was “currently working without restrictions.” (Id. (citing AR 1249).) The ALJ also cited 27 multiple treatment records demonstrating normal objective findings upon examination with regard 1 Plaintiff’s subjective symptom testimony. (See id.) The ALJ cited similar, specific 2 inconsistencies regarding Plaintiff’s alleged post 2005 stroke symptoms, heart condition, lower 3 extremity edema, “lower extremity musculoskeletal impairments, including lumbar degenerative 4 disc disease,” and treatment records for same. (See id. at 29-31.) 5 The ALJ further determined that Plaintiff’s current part-time work was inconsistent with 6 Plaintiff’s testimony. The ALJ found, in pertinent part: [A]lthough the claimant’s work for the Department of Rehabilitation 7 as an aide to a disabled counselor is performed just slightly below the presumptive levels for substantial gainful activity, the claimant 8 is limiting the number of hours she is working. She testified that she could work more if she wanted to do so, but she would have to 9 coordinate with her disabled counselor. All she has to do to meet the presumptive level for [substantial gainful activity] would be to 10 work an[ ] additional 3.5 hours per week, i.e., an additional 42 minutes per day. This consistent work activity, which is very close 11 to substantial gainful activity levels for more than a year and a half, is inconsistent with the alleged severity of her symptoms and 12 limitations. Her treatment records also indicate that she had been actively looking for a job prior to receiving the position she 13 currently performs. 14 (AR 31 (emphasis added).) The ALJ’s findings regarding Plaintiff’s ability to work in some 15 capacity and her efforts in seeking employment constitute specific, clear and convincing reasons 16 for discrediting her subjective symptom testimony. See Bray v. Comm’r of Soc. Sec. Admin., 554 17 F.3d 1219, 1227 (9th Cir. 2009) (discounting the plaintiff’s subjective claim of debilitating 18 disability in part because the plaintiff “recently worked as a personal caregiver for two years, and 19 has sought out other employment since then”). Further, the ALJ’s consideration of Plaintiff’s 20 current, sustained part-time work was proper under the Commissioner’s regulations even though 21 such work did not constitute substantial gainful activity. See 20 C.F.R. § 404.1571 (“Even if the 22 work you have done was not substantial gainful activity, it may show that you are able to do more 23 work than you actually did. We will consider all of the medical and vocational evidence in your 24 file to decide whether or not you have the ability to engage in substantial gainful activity.”). 25 In sum, the ALJ provided specific, clear and convincing reasons for discrediting Plaintiff’s 26 subjective symptom testimony and his assessment is supported by substantial evidence. 27 Accordingly, the ALJ’s decision must stand. See Burch, 400 F.3d at 679 (“A decision to deny 1 benefits will only be disturbed if it is not supported by substantial evidence or it is based on legal 2 || error.) Gnternal quotation marks and citation omitted). 3 CONCLUSION 4 For the reasons stated above, the Court DENIES Plaintiff’s motion and GRANTS 5 Defendant’s cross-motion. 6 This Order disposes of Docket Nos. 21 and 22. 7 IT IS SO ORDERED. 8 Dated: December 27, 2019 9 10 re JAQQUELINE SCOTT CORL United States Magistrate Judge 12 13 © 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 DARRYL JEAN RUTLEDGE, 7 Case No. 18-cv-06601-JSC Plaintiff, 8 9 Vv. CERTIFICATE OF SERVICE 10 NANCY A. BERRYHILL, Defendant. 11 12 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. 13 = District Court, Northern District of California. 14 That on December 27, 2019, I SERVED a true and correct copy(ies) of the attached, by 15 placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by 16 depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery 17 receptacle located in the Clerk's office. Z 18 19 Darryl Jean Rutledge P.O. Box 454 20 Hayward, CA 94543 21 22 Dated: December 27, 2019 23 24 Susan Y. Soong Clerk, United States District Court 26 27 By: ____ 28 Ada Means, Deput¥ Clerk to the Honorable JACQUELINE SCOTT CORLEY