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Edgmon v. Berryhill

United States District Court, C.D. California, Southern Division

March 8, 2017

GLENN LEE EDGMON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OF DECISION

          ANDREW J. WISTRICH UNITED STATES MAGISTRATE JUDGE.

         Plaintiff seeks reversal of the decision of defendant, the Commissioner of the Social Security Administration (the “Commissioner”), denying plaintiff's applications for disability insurance benefits and supplemental security income benefits. The parties have filed a Joint Stipulation (“JS”) setting forth their contentions with respect to each disputed issue.

         Administrative Proceedings

         The procedural facts are summarized in the Joint Stipulation. [See JS 2]. In a June 2, 2014 written hearing decision that constitutes defendant's final decision, the Administrative Law Judge (“ALJ”) found that plaintiff retained the residual functional capacity (“RFC”) to perform a restricted range of light work. The ALJ determined that plaintiff could not perform his past relevant work, but that he could perform alternative jobs available in significant numbers in the local and national economy. [Administrative Record (“AR”) 47-48]. Accordingly, the ALJ found that plaintiff was not disabled at any time from March 1, 2011, his alleged onset date, through the date of the ALJ's decision. [AR 49].

         Standard of Review

         The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). “Substantial evidence” means “more than a mere scintilla, but less than a preponderance.” Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (quoting Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). “It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (internal quotation marks omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Social Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). “Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citing Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999)).

         Discussion

         Credibility finding

         Plaintiff contends that the ALJ made an inadequately supported negative credibility finding. [JS 3-7].

         Once a disability claimant produces evidence of an underlying physical or mental impairment that is reasonably likely to be the source of his or her subjective symptoms, the adjudicator is required to consider all subjective testimony as to the severity of the symptoms. Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc); see also 20 C.F.R. §§ 404.1529(a), 416.929(a) (explaining how pain and other symptoms are evaluated). Absent affirmative evidence of malingering, the ALJ must then provide specific, clear, and convincing reasons for rejecting a claimant's subjective complaints. Treichler v. Comm'r, Soc. Sec. Admin., 775 F.3d 1090, 1102 (9thCir. 2014); Vasquez v. Astrue, 547 F.3d 1101, 1105 (9th Cir. 2008); Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1160-1161 (9th Cir. 2008). “In reaching a credibility determination, an ALJ may weigh inconsistencies between the claimant's testimony and his or her conduct, daily activities, and work record, among other factors.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1221, 1227 (9th Cir. 2009) (enumerating the factors that bear on the credibility of subjective complaints); Fair v. Bowen, 885 F.2d 597, 604 n.5 (9th Cir. 1989) (same). The ALJ's credibility findings “must be sufficiently specific to allow a reviewing court to conclude the ALJ rejected the claimant's testimony on permissible grounds and did not arbitrarily discredit the claimant's testimony.” Moisa, 367 F.3d at 885. If the ALJ's interpretation of the claimant's testimony is “reasonable” and “is supported by substantial evidence, ” it it not the Court's role “to second-guess it, ” even if the ALJ's interpretation is not “the only reasonable one.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).

         The ALJ discussed plaintiff's subjective complaints, including his hearing testimony and his self-prepared function reports, and articulated specific, clear, and convincing reasons based on substantial evidence for finding those complaints less than fully credible. Plaintiff testified that he injured his back in 2010. [AR 61]. He had surgery on his spine and his right knee in 2011. [AR 45]. Plaintiff also reported that he had shoulder surgery around 2008. [AR 65]. He said that he cannot sit longer than 45 minutes and cannot stand longer than an hour without experiencing low back pain. [AR 67-68]. He stated that he once was able to walk ten miles a day and now can walk about one mile, or for an hour at a time, before his knee hurts and he has to rest. [AR 70, 278]. He also indicated that he has numbness in his left arm and hand. [AR 68]. He claimed that he cannot lift weight over ten pounds. [AR 66]. Plaintiff has “terrible problems sleeping” and cannot sleep through the night. [AR 69]. He also has numbness in his toes and feet. [AR 69].

         The ALJ found plaintiff's subjective testimony about his symptoms and pain less than fully credible. She concluded that plaintiff's allegations of totally disabling back and knee pain and numbness in his extremities were not substantiated by the objective medical evidence and by the evidence documenting plaintiff's response to treatment. [AR 45]. The ALJ reviewed the records from Orthopaedic Specialty Group, where plaintiff received treatment from his treating orthopedist, Jack Chen, M.D., and from Dr. Chen's certified physician's assistant, Mykeisha Q. Alzaatra, PA-C. [See AR 350-378]. Plaintiff underwent a discectomy and fusion of the surgical spine in July 2011. [AR 25, 377-378]. During follow-up visits later that month, plaintiff denied pain or discomfort other than tightness in his neck. He reported significant improvement after surgery and exhibited good range of movement in his neck. [AR 45, 360-361]. An October 2011 x-ray indicated that plaintiff's cervical spine was “fusing well from C5 to C6.” [AR 359]. Plaintiff underwent a right total knee replacement in October 2011. [AR 379-404]. There is no evidence of any surgical complications or post-surgical problems. During a February 2012 follow-up visit with PA Alzaatra, plaintiff complained of slight tightness and soreness on the left side of his neck and occasional numbness and tingling in his four left fingertips, but he displayed full strength in his upper extremities bilaterally and normal range of motion. [AR 45, 357]. Plaintiff was prescribed ibuprofen, a muscle relaxant, and a medicated patch for pain. [AR 357]. In April 2012, plaintiff reported that his pain had improved, but that he had left hand and wrist numbness that occurred more frequently in the morning and lasted about an hour. [AR 45, 356].

         The next treatment reports in the record are dated May 2013 and July 2013. [AR 414-415]. Plaintiff presented to Lestonnac Free Clinic in May 2013 with a five- to six-week history of low back pain. [AR 415]. The clinic note states that plaintiff had walked two miles to the clinic. Plaintiff was diagnosed with low back strain and hypertension. Plaintiff was prescribed a muscle relaxant, and naprosyn, a nonsteroidal anti-inflammatory medication. He was advised to lose weight, eat a low-sodium diet, and increase his intake of fruits and vegetables. Plaintiff returned to the clinic in July 2013 complaining of severe lower back pain. No physical examination findings were recorded. His diagnoses were spinal stenosis with severe degenerative disc disease. [AR 45, 414-415]. The ALJ permissibly relied on the absence of objective evidence corroborating the alleged severity of plaintiff's subjective complaints as one factor supporting her credibility finding. See Bunnell, 947 F.2d at 343 (stating that the absence of medical findings corroborating the alleged severity of a claimant's subjective complaints is a permissible consideration but “is just one factor to be considered in evaluating the credibility of the testimony and complaints).

         The ALJ also was permitted to factor into her credibility assessment the testimony of the medical expert, who reviewed plaintiff's medical records and opined that although plaintiff “has trouble with his spine and his right knee, ” he could perform a restricted range of light work.[1] [AR 46, 63-64]. See Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) (stating that in assessing the credibility of a claimant's “excess pain” complaints, the ALJ may consider testimony from physicians concerning the nature, severity, and effect of the claimant's symptoms). In addition, the ALJ pointed to the paucity of treatment records post-dating plaintiff's last surgical follow-up visit in April 2012. [AR 45]. There was a gap of more than a year between that date and his next treatment visits in May 2013 and July 2013, when plaintiff sought help for a relatively short history of lower back pain. There was no evidence of treatment after July 2013. Plaintiff testified that he did not have insurance or money to pay for additional treatment, and that he had been unable to afford the medication prescribed for his lower back pain in May 2013. [AR 70-71]. However, he also testified that “[n]obody told me to do any treatment” beyond the treatment documented in the record, and that he was not taking even over-the-counter medication. [AR 71-72]. Plaintiff explained that he did not take “[a] lot of over-the-counter medication or even . . . prescription[s] because I just don't like them. I don't like the way they make me feel.” [AR 71, 73]. Viewing the record as a whole, ...


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