Goetz v. SS Disability ( 2020 )

1 □ 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 || TERRY H.G., Case No.: 3:19-cv-01603-CAB-RBM Plaintiff, 12 REPORT AND 13 || RECOMMENDATION OF UNITED STATES MAGISTRATE RE: 14 |] SS DISABILITY, PLAINTIFF’S MERITS BRIEF Defendant. 15 16 17 [Doc. 25] 18 19 I. INTRODUCTION 20 Plaintiff Terry H. G. (“Plaintiff”), proceeding pro se and in forma pauperis, filed a 21 Complaint under 42 U.S.C. § 405(g) of the Social Security Act (“the Act”). (Docs. 1, 6.) 22 || Plaintiff seeks judicial review of the Commissioner of Social Security’s (“Defendant” or 23 ||“Commissioner”) final decision denying Plaintiff's application for disability and disability 24 || insurance benefits. See 42 U.S.C. § 405(g). 25 There are two briefs before the Court. The first is Plaintiff's Merits Brief (“Merits 26 || Brief’ or “Motion”) which the undersigned accepted nunc pro tunc to April 9, 2020.' 27 —____ 28 1 Plaintiff's Merits Brief is a one-page document that does not contain a Memorandum of Points & Authorities (““MP&A”). This District’s Civil Local Rules require an MP&A in support of any motion. 1 ||(Docs. 24-25.) The second is Defendant’s Opposition to Plaintiff's Merits Brief 2 ||(‘Opposition Brief’). (Doc. 26.) On May 20, 2020, the undersigned issued an Order 3 ||Extending Time for Plaintiff to File Reply Brief through June 29, 2020. (Doc. 29.) To 4 date, Plaintiff has not filed a Reply Brief. Reply briefs are optional, thus, the matter is 5 ||ready for ruling. See CivLR 7.1(e)(6)(e)(3). 6 The matter was referred to the undersigned for Report and Recommendation 7 || pursuant to 28 U.S.C. § 636(b)(1) and Civil Local Rule 72.1(c). Considering the papers, 8 ||the Administrative Record (“AR”),” the facts, and the applicable law, it is respectfully 9 recommended that Plaintiff's Motion be DENIED and the decision of the Administrative 10 || Law Judge (“ALJ”) be AFFIRMED. 1] Il. BACKGROUND & PROCEDURAL HISTORY 12 On September 24, 2015, Plaintiff protectively filed an application for disability and 13 || disability insurance benefits (“DIB”) under Title II of the Act, 42 U.S.C. §§ 416, 423. (AR 14 15, 168-174.) Plaintiff alleged disability began on November 29, 2011 from injuries 15 ||sustained during a horseback riding accident. (/d. at 15, 18, 168-174.) The alleged 16 || disabling injuries include multiple rib fractures, lumbar transverse process fractures,’ rib 17 fractures, pulmonary contusion, diabetes mellitus, diabetic neuropathy, peripheral 18 ||neuropathy, chronic pain, degenerative disc disease of the cervical spine with stenosis and 19 |jradiculopathy, and status post-two right toe amputations due to osteomyelitis. □□□□ at 18.) 20 21 □□□□□□□□□□□□□□□□□□□□□□□□ See CivLR 7.1(f). Plaintiff is pro se, and thus, is relieved from strict application of procedural rules. See 22 || Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013). On April 15, 2020, the undersigned issued a Discrepancy Order and accepted the Merits Brief for filing despite the lack of an MP&A to support the 23 || Merits Brief. (Doc. 24.) Plaintiff subsequently mailed an ex parte letter to the Clerk of Court inquiring 4 about the April 15, 2020 Discrepancy Order, and he attached a “Request for Merits Brief.” (Doc. 28.) The undersigned issued another Discrepancy Order accepting the “Request for Merits Brief” nunc pro 25 to May 7, 2020. (Docs. 27-28.) The April 9, 2020 Merits Brief and May 7, 2020 Request for Merits Brief are duplicative in nature, but the undersigned will refer to each filing as appropriate throughout this 26 {| Order. (Compare Doc. 25 with Doc. 28.) ? All AR page citations refer to the number on the bottom right-hand corner of the page, rather than the 27 || numbers assigned by the CM/ECF system. 28 3 “The transverse process is a projection from the vertebrae into which muscles are attached to operate the vertebrae and allow you to bend, twist, and turn.” (AR at 37.) 1 The Social Security Administration denied Plaintiffs application initially and upon 2 ||reconsideration. (AR at 15, 85-90, 92-97.) Next, Plaintiff requested a hearing before an 3 ||ALJ. Ud. at 15, 100-101.) The ALJ held a hearing on March 14, 2018. (Ud. at 15, 29-58.) 4 || At the hearing, the ALJ elicited testimony from medical expert Ronald E. Kendrick, M.D. 5 1|(“Dr. Kendrick”), vocational expert Gretchen A. Bakkenson, as well as Plaintiff himself. 6 at 15, 30-56.) At the hearing, Plaintiff was represented by attorney Veronica Williams. 7 at 29.) 8 On September 5, 2018, the ALJ issued a written decision finding Plaintiff not 9 || disabled. Ud. at 15-21.) On June 24, 2019, after the Appeals Council denied review of the 10 |} ALJ’s decision, the decision became the final decision of the Commissioner under 42 11 |}U.S.C. § 405(h). Ud. at 1-6.) 12 Til. SUMMARY OF ALJ’S FINDINGS 13 In the decision, the ALJ determined Plaintiff last met the insured status requirements 14 |iof the Act on December 31, 2011. (AR at 17.) The ALJ then followed the five-step 15 |/sequential evaluation process to determine Plaintiff's disability status. See 20 C.F.R. § 16 404.1520; (AR at 17-21). 17 At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity 18 since the alleged onset date of November 29, 2011 through the date last insured of 19 ||December 31, 2011. (AR at 17.) 20 At step two, the ALJ found Plaintiff had the following medically-determinable 21 ||impairments through the date last insured: status-post multiple fractures of the lumbar spine 22 || transverse processes, status-post multiple rib fractures, status-post pulmonary contusions, 23 ||and diabetes mellitus. Ud.) But the ALJ concluded Plaintiffs “statements concerning the 24 ||intensity, persistence, and limiting effects of [his] symptoms [were] not entirely consistent 25 ||with the medical evidence and other evidence in the record... .” (Ud. at 18.) After 26 || reviewing the objective medical evidence and other evidence of record, the ALJ determined 27 || Plaintiff “did not have an impairment or combination of impairments that significantly 28 1 || limited [his] ability to perform basic work-related activities for 12 consecutive months|.]|” 2 ||(AR at 17.) Therefore, the ALJ determined Plaintiff did not have a “severe” impairment 3 defined in 20 C.F.R. § 404.1520(c), and thus, determined Plaintiff was not disabled 4 || under the Act. (AR at 17-21.) 5 Because the ALJ found Plaintiff did not suffer from a severe impairment at step two 6 was therefore not disabled, the ALJ did not analyze steps three, four, or five. See 20 7 ||C.F.R. § 404.1520(a)(4) (if the ALJ finds claimant not disabled at a step, the ALJ does not 8 || proceed to the next step in the sequential evaluation process). 9 In sum, the ALJ found Plaintiff was not disabled under the Act from the alleged 10 || onset date of November 29, 2011 through the date last insured of December 31, 2011. Ud. 11 21.) 12 IV. ISSUES IN DISPUTE 13 This Court’s review is limited to two issues: (1) whether the ALJ’s decision contains 14 || legal error based upon an alleged failure to review all medical evidence of record; and 15 ||(2) whether the ALJ’s decision is supported by substantial evidence. 16 V. STANDARD OF REVIEW 17 The Act provides for judicial review of a final agency decision denying a claim for 18 || disability benefits in federal district court. 42 U.S.C. § 405(g). “[FJederal court review of 19 social security determinations is limited.” Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d 20 || 1090, 1098 (9th Cir. 2014). A federal court will uphold the Commissioner’s disability 21 || determination “unless it contains legal error or is not supported by substantial evidence.” 22 || Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citing Stout v. Comm’r Soc. Sec. 23 || Admin., 454 F.3d 1050, 1052 (9th Cir. 2006)). Substantial evidence means “more than a 24 ||mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable 25 || person might accept as adequate to support a conclusion.” Lingenfelter v. Astrue, 504 F.3d 26 || 1028, 1035 (9th Cir. 2007) (internal citation omitted). In reviewing whether the ALJ’s 27 |\decision is supported by substantial evidence, the Court must consider the record as a 28 || whole, “weighing both the evidence that supports and the evidence that detracts from the 1 |}Commissioner’s conclusion ....” Lingenfelter, 504 F.3d at 1035 (quoting Reddick v. 2 || Chater, 157 F.3d 715, 720 (9th Cir. 1998)). 3 The ALJ is responsible for “determining credibility, resolving conflicts in medical 4 ||testimony, and for resolving ambiguities.” E.g., Garrison, 759 F.3d at 1010 (quoting 5 || Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). When evidence supports more 6 ||than one rational interpretation, the ALJ’s conclusion must be upheld. E.g., Batson v. 7 ||Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Stated differently, when 8 ||“the evidence can reasonably support either affirming or reversing a decision, [the Court] 9 ||may not substitute [its] judgment for that of the [ALJ].” Garrison, 759 F.3d at 1010 10 || (internal citation omitted). Rather, the Court only reviews the reasons provided by the ALJ 11 may not affirm the ALJ on other grounds. /d. (internal citation omitted). 12 VI. DISCUSSION 13 Liberally construing Plaintiff's Motion, Plaintiff's sole allegation of error focuses 14 his former attorney’s failure to supplement “missing” medical records to the ALJ as 15 || requested, resulting in an erroneous denial of disability benefits. (Docs. 25, 28.) Defendant 16 ||counters that Plaintiff failed to identify any medical evidence supporting his claim of 17 disability as of his date last insured, and Plaintiff overall failed to meet his burden in 18 |/establishing any error in the ALJ’s decision. (Doc. 26 at 7-9.) Additionally, Defendant 19 ||contends the ALJ’s decision should be affirmed because it is supported by substantial 20 || evidence including the objective medical evidence, Plaintiff's hearing testimony, and Dr. 21 ||Kendrick’s medical opinion. (7d. at 9-15.) 22 Analyzing the parties’ arguments and the ALJ’s decision, the undersigned 23 ||respectfully recommends the ALJ’s decision be AFFIRMED. 24 A. The Court Can Proceed on the Current Record 25 Plaintiff raises a threshold issue: the completeness of the medical records the ALJ 26 ||reviewed in making his disability determination. For the reasons outlined below, the 27 ||undersigned finds the Court may proceed without the medical records at issue as these 28 ||records do not preclude effective judicial review of the ALJ’s decision. & 1 The term “disability” under the Act means an “inability to engage in any substantial 2 || gainful activity by reason of any medically determinable physical or mental impairment 3 || which can be expected to result in death or which has lasted or can be expected to last for 4 ||a continuous period of not less than [twelve] months.” See 42 U.S.C. § 423(d). A threshold 5 ||issue in a disability determination involves examining the relevant time period of the 6 || alleged onset of disability and plaintiffs date last insured. Not only is it plaintiff's burden 7 ||to prove disability, but plaintiff also has the burden of proving he was “either permanently 8 || disabled or subject to a condition which became so severe as to disable him prior to the 9 || date upon which his disability insured status expired.” Armstrong v. Comm’r of Soc. Sec. 10 || Admin., 160 F.3d 587, 589 (9th Cir. 1998) (emphasis added) (internal citation and 11 || quotations omitted); see also Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th. Cir. 2005). 12 || Additionally, plaintiff bears the burden of proof at step two to show that an impairment 13 || qualifies as “severe.” Bowen v. Yuckert, 482 U.S. 137, 146-152 (1987) (citing 20 C.F.R. § 14 |/404.1520(c)). 15 At the same time, however, the ALJ has an independent “duty to fully and fairly 16 || develop the record and to assure that the claimant’s interests are considered.” Tonapetyan 17 ||v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (internal quotations and citation omitted). 18 || This duty extends to those claimants represented by counsel and those appearing pro se. 19 (internal quotations and citation omitted). “Ambiguous evidence, or the ALJ’s own 20 || finding that the record is inadequate to allow for proper evaluation of evidence, triggers the 21 ALJ’s duty to conduct an appropriate inquiry.” Jd. (internal quotations and citation 22 omitted). The ALJ may discharge this duty by keeping the record open after the hearing 23 allow for supplementation of the record. Jd. (internal citations omitted). 24 In the context of an incomplete record with the federal court, a Social Security matter 25 ||should be remanded if effective judicial review is impossible. See generally Cutler v. 26 || Washington, 516 F.2d 1282, 1285 (2d Cir. 1975) (stating “[w]here medical records are 27 || crucial to the plaintiff's claim, illegibility of important evidentiary material has been held 28 warrant a remand for clarification and supplementation.”) (internal citation omitted). 1 || However, if an incomplete record does not preclude effective judicial review, then the court 2 ||may proceed without them. Varney v. Sec. Health & Human Servs., 846 F.2d 581, 583 3 ||(9th Cir. 1988) (declining to remand on ground that portions of administrative hearing 4 |\transcript deemed inaudible because the gaps in testimony did not interfere with 5 ||comprehension of testimony to an extent that would hinder fair review) superseded on 6 ||other grounds, Bunnell v. Sullivan, 912 F.2d 1149, 1154 (9th Cir. 1990); see also Andres 7 ||v. Bowen, 870 F.2d 453, 455-456 (8th Cir. 1989) (affirming order upholding denial of 8 ||benefits despite incomplete hearing transcript because there was no indication that the 9 ||missing transcript would aid the claimant or that its absence prevented a fair judicial 10 ||review). 11 Here, the parties do not dispute the date Plaintiff's insurance coverage lapsed or the 12 ||relevant time period for purposes of assessing Plaintiff's disability status. The issue is 13 || whether Plaintiff suffered a disability prior to December 31, 2011, the date last insured. 14 Plaintiff's sole argument pertains to “missing medical records” allegedly not before the 15 || ALJ at the time of his decision. (Doc. 25 at 1; Doc. 28 at 2.) Specifically, Plaintiff claims 16 ||his attorney failed to “present missing medical records from the time [he] was at 17 |{Community Care Rehab” in March 2013. (Doc. 25 at 1; Doc. 28 at 2.) Defendant clarifies 18 ||that after the administrative hearing, Plaintiff's counsel submitted an additional seven- 19 ||hundred and fourteen pages of medical records and a post-hearing memorandum in 20 |;advance of the ALJ’s written decision. (Doc. 26 at 8-9; see also AR at 56-57, 346-347, 21 2411-3124.) 22 The March 14, 2018 hearing transcript provides additional context to the issue. At 23 || the outset of the hearing, the ALJ admitted Exhibits 1-A through 29-F. (AR at 31.) The 24 || ALJ inquired with Plaintiffs counsel as follows: 25 ALJ: I understand from a letter that was recently submitted that there are 6 outstanding records from a number of providers, Dr. Norati [sic], Dr. Fabricon [sic], and Dr. fraqui [sic], Dr. Erdsall [sic], Dr. Haggerstrom [sic] and Golden 27 Hill Rehabilitation Center; is that accurate? 28 1 [Plaintiffs] ATTY: Yes, that’s accurate. 2 ALJ: What are the time periods of those records? One reason I ask is M[r]. 3 [G] has a very remote [date last insured]. 4 [Plaintiff's] ATTY: These records I understand are from the last year. These 5 records are going to be from after that time period. 6 ALJ: Okay. Why don’t we defer further discussion of that until the end of 7 the hearing 8 ALJ: Would you like to make any closing remarks now, I’m certainly happy 9 to hear them especially since there are outstanding records. Some of it’s 10 probably not going to be important given the [date last insured]. But the records from 2013, they might be. Just trying to look at it as positively as 11 possible. If you would prefer to do a closing brief, it’s up to you. It might D be better. What would you like to do? 13 [Plaintiff's] ATTY: I would like to do a closing brief. ALJ: T’ll be interested in the updated records and the brief. . . 15 16 17 ||(AR at 31-21, 56-57.) Post-hearing, Plaintiff's counsel submitted six letters to the ALJ 18 ||regarding the status of supplementing medical records from “Dr. Mohammed Miradi, Dr. 19 Jerry Fabrikant, Dr. Gao Er-Kai, Dr. Soumekh M. Hertzel, Dr. Lindsey Hagstorom and 20 ||Golden Hill Rehabilitation Center.” (Jd. at 340-345.) Ultimately, Plaintiff supplemented 21 ||seven-hundred and fourteen pages of medical records for the above-mentioned providers. 22 ||(Ud. at 56-57, 346-347, 2411-3124.) With the exception of two sets of records from Sharp 23 ||Grossmont Hospital, the supplemented records post-date 2013 and none of them pertain to 24 {|Community Care Rehabilitation. (/d. at 2411-3124.) 25 On June 19, 2018, Plaintiff's counsel submitted a post-hearing memorandum 26 summarizing the position that “as of November 29, 2011, Mr. [G’s] physical impairments 27 ||inhibited his ability to perform any competitive work in the national economy.” □□□□ at 28 1 ||346-347.) The ALJ’s decision includes a list of exhibits considered in connection with the 2 || decision, including Plaintiff's supplemental records. Ud. at 27-28, 2411-3124.) 3 As to the “missing” medical records from Community Care Rehabilitation from 4 ||approximately March 2013, these records are not crucial to Plaintiff's claim and do not 5 ||interfere with the Court’s ability to effectively review his claim. See Varney, 846 F.2d at 6 ||583. This is because Plaintiff's disability status as of December 31, 2011 (i.e., the date last 7 ||insured) is the relevant time period for making a disability assessment. See Armstrong, 8 || 160 F.3d at 589; see also Bayliss, 427 F.3d at 1217. The Community Care Rehabilitation 9 treatment occurred fourteen months after Plaintiff's insurance coverage expired, and thus, 10 |/is not crucial to Plaintiff's claim. In any event, the ALJ properly discharged his duty to 11 develop the record—he left the record open after the hearing and there was no suggestion 12 to any ambiguity in the evidence or inadequacy in the record at the time of his decision. 13 || Tonapetyan, 242 F.3d at 1150. For the reasons discussed above, remand is not warranted 14 || on the ground that the record is incomplete. Thus, the Court can proceed with a substantive 15 ||review of the ALJ’s findings. 16 B. The ALJ’s Decision is Supported by Substantial Evidence 17 The impairments at issue include Plaintiff's status-post multiple fractures of the 18 || lumbar spine transverse processes, status-post multiple rib fractures, status-post pulmonary 19 contusions, and diabetes mellitus. (AR at 17.) The ALJ found—through Plaintiff's date 20 insured—Plaintiff did not have an impairment or combination of impairments that 21 ||significantly limited his ability to perform basic work-related activities for twelve 22 ||consecutive months. (/d. at 17.) Therefore, the ALJ determined Plaintiff did not have any 23 ||“severe” impairment. (/d.) In relying upon objective medical evidence, Plaintiff's lack of 24 treatment, the opinions of nonexamining physicians and a medical expert, and □□□□□□□□□□□ 25 ||own hearing testimony and statements, the ALJ provided specific, clear and convincing 26 ||reasons for rejecting Plaintiff's subjective allegations of impairment. (/d. at 17-20.) 27 Considering all of the foregoing, the ALJ’s decision is supported by substantial evidence. 28 . 1 The ALJ engages in a two-step analysis to assess the credibility of a claimant’s 2 ||testimony regarding subjective pain or intensity of symptoms. Molina v. Astrue, 674 F.3d 3 || 1104, 1112 (9th Cir. 2012) (internal citation omitted) superseded by regulation on other 4 || grounds. First, the ALJ determines “whether there is objective medical evidence of an 5 |j/underlying impairment which could reasonably be expected to produce the pain or other 6 |isymptoms alleged.” Molina, 674 F.3d at 1112 (internal citation omitted). If the claimant 7 || presents such evidence to satisfy the first step, an ALJ can reject the claimant’s subjective 8 |/allegations of impairment “only upon (1) finding evidence of malingering, or (2) 9 || expressing specific, clear and convincing reasons for doing so.” Benton v. Barnhart, 331 10 || F.3d 1030, 1040 (9th Cir. 2003); see also Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 11 2014) (quoting Molina, 674 F.3d at 1112). In addition to objective medical evidence, an 12 ALJ must consider each of the factors set forth in 20 C.F.R. § 404.1529 to assess the 13 ||credibility of symptoms. Willyard v. Colvin, 633 F. App’x 369, 370 (9th Cir. 2015). 14 i. Plaintiffs Lack of Treatment & the Objective Medical Evidence 15 The ALJ found Plaintiff's statements concerning the intensity, persistence and 16 || limiting effects of his symptoms as not entirely consistent with the objective medical 17 || evidence and other evidence in the record. (AR at 18.) The ALJ cited to the lack of ongoing 18 regular treatment for any residual injuries prior to the date last insured and the lack of 19 |/records documenting any complaints, evaluations, or diagnostic imaging of Plaintiff's 20 ||impairments prior to the date last insured. (/d. at 19-20.) Notably, the ALJ found Plaintiff 21 ||“has not generally received the type of medical treatment one would expect for a totally 22 || disabled individual.” (/d. at 20.) The ALJ also found the evidence in the record indicated 23 || Plaintiff's diabetes was controlled, and there was no evidence of a severe cardiovascular 24 ||impairment. (/d. at 19-20.) 25 A lack of objective medical findings to support a claim of disability is a factor the 26 || ALJ may consider in discrediting a plaintiff's allegations, but it may not be the sole basis 27 discredit the allegations. Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). The 28 || ALJ is also permitted to consider a lack of treatment in assessing Plaintiffs credibility. 10 1 || Burch, 400 F.3d at 681; see also Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) 2 |\(stating “[t]he ALJ may consider many factors in weighing a claimant’s credibility, 3 |lincluding . . . unexplained or inadequately explained failure to seek treatment or to follow 4 prescribed course of treatment . . .”) (internal citation and quotation marks omitted). 5 Here, the ALJ considered Plaintiff's testimony stating he was bedridden for nine 6 ||months after the November 2011 accident, used a wheelchair, and experienced problems 7 || walking and numbness in his feet and hands. (AR at 19.) But, the ALJ also noted 8 || Plaintiff's testimony stating he did not seek treatment for such problems until 2013. Ud.) 9 || As to the lumbar and rib fractures, the ALJ found no evidence to show any complications 10 || that would have prolonged the one-year healing process. (/d.) As to ambulation, the ALJ 11 || found no evidence that Plaintiff had problems ambulating or required an assistive device 12 || for at least twelve continuous months after the November 2011 accident. Ud.) The only 13 ||evidence the ALJ found relating to pain was an April 2012 record where Plaintiff visited 14 emergency room for suicidal ideation associated with chronic back and rib pain. (/d.) 15 Plaintiff denied weakness or paresthesia and otherwise made no complaints of gait 16 || abnormality at this time. (/d.) Other than this emergency room visit, the first documented 17 ||treatment after Plaintiff's hospital discharge from the November 2011 accident did not 18 occur until October 2013. Ud.) This record documents Plaintiffs self-report stating he 19 || was on bed rest for four months and experienced a “hard recovery,” but the primary 20 complaints consisted of low back pain, diarrhea and coughing. (/d.) He did not complain 21 ||of numbness in the hands or feet or any difficulties with walking. (U/d.) Ultimately, the 22 || ALJ found injuries sustained from the horseback riding accident as not severe due to the 23 || lack of ongoing or regular treatment for any of the residual injuries prior to the date last 24 insured or even in 2012. (/d.) 25 As to the cervical and lumbar spine impairments and upper and lower extremity 26 ||numbness/neuropathy, the ALJ found Plaintiff's only treatment post-dated the date last 27 ||/insured. Ud. at 19-20.) The ALJ noted Plaintiff’s testimony that he suffered “blackouts” 28 || due to his cervical spine impairments, but he found no medical record documenting any 11 1 ||complaints or treatment for the issue prior to the date last insured or even one year after. 2 at 19.) Although diagnostic imaging of the cervical spine from 2015 and 2016 showed 3 || osteoarthritic changes and significant cervical stenosis with compression, the ALJ found 4 ||no severe neck impairment was established prior to the December 31, 2011 date last 5 |/insured. (AR at 19-20.) As to the lumbar spine, the ALJ found no documented complaints 6 || of back pain until April 2012 and no treatment or imaging of the spine until 2015, both of 7 || which are after the date last insured. (AR at 20.) And the imaging only showed mild multi- 8 || level spondylosis and a normal thoracic spine. Ud.) As to the numbness/neuropathy in the 9 || upper and lower extremities, the ALJ noted the treatment in 2015 and 2016 occurred well 10 || after the date last insured. (/d. at 19-20.) Considering all of the foregoing, the ALJ found 11 severe neck, back, or extremity impairments prior to the date last insured. (/d.) 12 As to the diabetes mellitus, the ALJ also found no severe impairment. (/d. at 19.) 13 || The record evidence indicated Plaintiff's diet was controlled as of November 2011, and 14 || otherwise did not reveal any complications or end organ damage as of the date last insured. 15 16 As to cardiovascular concerns, the ALJ noted Plaintiff's denial of any hypertension, 17 ||heart disease, stroke, or any other medical problems during his November 2011 18 || hospitalization. (Ud. at 20.) The ALJ found this consistent with the medical records and 19 || concluded Plaintiff had no severe impairment prior to the date last insured. (Id.) 20 As outlined above, it is Plaintiff's burden to prove he was disabled prior to his date 21 |/last insured. Supra p. 6; Armstrong, 160 F.3d at 589. Considering Plaintiff's lack of 22 treatment and the lack of objective medical evidence relating to his impairments as of the 23 || date last insured, the ALJ set forth specific, clear and convincing reasons for discrediting 24 ||Plaintiff's subjective allegations of impairment. Burch, 400 F.3d at 681; see also 25 || Tommasetti, 533 F.3d at 1040. 26 ii. Medical Opinions 27 The ALJ also considered medical opinion and medical expert evidence in 28 || accordance with applicable regulations. (AR at 18); see also 20 C.F.R. §§ 404.1513a(b)(2), 12 1 ||404.1527. This included the opinions of two nonexamining state agency medical 2 ||physicians, A. Wong, M.D., and A. Alston, M.D., in addition to Dr. Kendrick’s expert 3 testimony. (AR at 35-42, 59-71, 73-81.) The ALJ found these opinions consistent with 4 finding of no severe impairments prior to the date last insured. (/d. at 18-20.) 5 In assessing the credibility of a claimant’s symptoms, including pain, the ALJ may 6 ||consider medical opinions. See 20 C.F.R. § 404.1529(c)(1); see also 20 C.F.R. § 404.1527. 7 || This includes an opinion of a nonexamining testifying medical expert. See Morgan v. 8 ||Comm’r Soc. Sec., 169 F.3d 595, 600 (9th Cir. 1999) (stating “[o]pinions of a 9 ||nonexamining, testifying medical advisor may serve as substantial evidence when they are 10 ||supported by other evidence in the record and are consistent with it.”) (internal citation 11 ||omitted). The ALJ may cite medical opinions as specific, clear and convincing reasons to 12 |/reject a plaintiffs subjective allegations. See Moncada v. Chater, 60 F.3d 521, 524 (9th 13 ||Cir. 1995) (ALJ’s reliance on medical opinion is a specific reason to discredit plaintiff’ s 14 ||subjective allegation of pain); see also Skuja v. Colvin, 671 F. App’x 463, 464-65 (9th Cir. 15 |}2016) (inconsistencies between claimant’s symptom testimony and opinions of medical 16 examiners is a clear and convincing reason to discredit claimant’s subjective allegations). 17 On initial review, Dr. Wong noted the lack of records available near in time to 18 || Plaintiff's date last insured. (AR at 66.) Dr. Wong found Plaintiff only partially credible 19 || and opined Plaintiffs statements about the intensity, persistence and limiting effects of his 20 ||symptoms as not substantiated by the medical evidence alone. (/d. at 67-68.) Upon 21 ||reconsideration, Dr. Alston found Plaintiff has one or more medically determinable 22 ||impairments but found the impairments non-severe based upon the insufficient medical 23 || evidence to evaluate the claim. (/d. at 80.) At the administrative hearing, Dr. Kendrick 24 || testified based upon his review of the record and opined that Plaintiff's rib fractures and 25 || lumbar transverse process fractures would have healed within one year of the accident. (/d. 26 19-20, 35,37, 39.) As to Plaintiff's diabetes, Dr. Kendrick noted the impairment existed 27 the time of the November 2011 accident but he found Plaintiff experienced no 28 ||complications prior to December 31, 2011 or even one year after. (/d. at 37-38.) Similarly, 13 1 ||Dr. Kendrick testified that there was evidence of degenerative disc disease, but he found 2 ||no medical evidence that it existed at the time of the initial injury. (/d. at 38-40.) 3 The ALJ properly cited to specific evidence in the record, including the medical 4 || opinions and expert testimony outlined above, as specific, clear, and convincing reasons 5 discrediting Plaintiff's subjective allegations of impairment. 20 C.F.R. § 404.1529; 6 || Morgan, 169 F.3d at 600; Moncada, 60 F.3d at 524; Skuja, 671 F. App’x at 464-65. 7 iii. Plaintiff's Testimony 8 Notably, the ALJ found several of Plaintiff's statements as not entirely consistent 9 || with the objective medical evidence and other evidence in the record. (AR at 18.) 10 An ALJ may discredit subjective allegations of impairment by identifying “what 11 testimony is not credible and what evidence undermines [that testimony].” See, e.g., Berry 12 ||v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010) (internal citation and quotation marks 13 |}omitted); see Robinson v. Berryhill, 690 F. App’x 520, 525 (9th Cir. 2017) (upholding 14 || ALJ’s determination finding claimant’s “inconsistent statements . . . hurt his credibility.”’). 15 || The ALJ may consider many factors in weighing a claimant’s credibility including his prior 16 || work record and statements about his symptoms. See 20 C.F.R. § 404.1529(c)(3); see also 17 || Tommasetti, 533 F.3d at 1039 (internal citation omitted); Jourdan v. Comm’r Soc. Sec., 18 ||426 F. App’x 499, 500 (9th Cir. 2011) (ten-year work history following accident and 19 ||conservative treatment of symptoms constituted substantial evidence to support ALJ’s 20 || adverse credibility determination). 21 As noted above, Plaintiff testified that after the accident, he was bedridden for nine 22 ||months and experienced problems with ambulation. Supra p. 10; (AR at 48.) However, 23 ||he testified he did not seek treatment until 2013 for these symptoms. (AR at 47-48.) The 24 || ALJ cited this delay in treatment as a basis to reject Plaintiffs allegations. (AR at 18-20); 25 || Burch, 400 F.3d at 681; Tommasetti, 533 F.3d at 1040. The ALJ also cited to a medical 26 ||record from January 2016 where Plaintiff reported to be “[fJunctioning well on a daily 27 ||basis” which further undermined Plaintiffs credibility. (AR at 20 (citing AR at 2047).) 28 |; The ALJ also considered Plaintiff's testimony about his prior work record including: (1) 14 1 || Plaintiff stopped working in 2006 because he was laid off; (2) Plaintiff withdrew money 2 || from his 401K plan to open up his own shop; (3) and Plaintiff needed to generate income 3 after the November 2011 accident so in the end of 2012 Plaintiff “started doing little jobs 4 || for friends just trying to get money to eat.” 20 C.F.R. § 404.1529(c)(3); (AR at 19-20, 47- 5 ||48). Considering all of the foregoing, the ALJ properly identified evidence which 6 undermined Plaintiff's allegations of impairment. Berry, 622 F.3d at 1234. In doing so, 7 ||the ALJ offered specific, clear and convincing reasons for rejecting Plaintiffs subjective 8 || allegations of impairment. 9 In sum, the undersigned finds an effective review of Plaintiffs claim can be made 10 || on the current record as the relevant time period for assessing Plaintiff's disability is from 11 alleged onset date to the date last insured. In reviewing the parties’ papers, the record, 12 the facts, and the applicable law, the undersigned finds the ALJ’s decision finding Plaintiff 13 disabled as of the date last insured is supported by substantial evidence. 14 Vil. CONCLUSION 15 For the reasons given, the undersigned respectfully recommends that □□□□□□□□□□ 16 || Motion be DENIED and the ALJ’s decision be AFFIRMED. 17 This Report and Recommendation is submitted to the United States District Judge 18 || assigned to this case, under 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 19 || 72(b). Any party may file written objections with the Court and serve a copy on all parties 20 or before September 10, 2020. The document should be captioned “Objections to 21 Report and Recommendation.” Any reply to the Objections shall be served and filed on or 22 before October 1, 2020. The parties are advised that failure to file objections within the 23 || specific time may waive the right to appeal the District Court’s Order. Martinez v. YIst, 24 |/951 F.2d 1153, 1156-57 (9th Cir. 1991). 25 IT ISSO ORDERED. 26 27 W/// 28 15 1 || DATE: August 19, 2020 ihotiinds Meileregp 3 ON. RUTH BE EZ MONTENEGRO UNITED STATES MAGISTRATE JUDGE 4 5 6 7 8 9 □ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (16