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Asmar v. Colvin

United States District Court, S.D. California

April 10, 2017

MIGUEL ASMAR, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION ON CROSS MOTIONS FOR SUMMARY JUDGMENT [ECF NOS. 20, 21]

          Hon. Mitchell D. Dembin United States Magistrate Judge.

         Plaintiff Miguel Asmar (“Plaintiff”) filed this action pursuant to 42 U.S.C. § 405(g) for judicial review of the decision of the Commissioner of the Social Security Administration (“Commissioner”) denying Plaintiff's applications for a period of disability and disability insurance benefits under Title II and supplement security income payments under Title XVI of the Social Security Act. Plaintiff moves the Court for summary judgment reversing the Commissioner and ordering an award of benefits, or in the alternative, to remand the case for further administrative proceedings. (ECF No. 19). Defendant moves for summary judgment affirming the denial of benefits. (ECF No. 20).

         For the reasons expressed herein, the Court recommends that Plaintiff's motion be DENIED and Defendant's motion be GRANTED.

         I. BACKGROUND

         A. Factual Background

         Plaintiff alleges that he became disabled on December 31, 2008, due to several medical and mental conditions, including pain in his right foot and knee, both ankles, right elbow, and jaw; numbness in both hands and his back; pain and arthritis in his neck; wrist damage; loss of concentration; anxiety; and depression. (A.R. at 11, 168).[1]Plaintiff's date of birth, June 27, 1974, categorizes him as a younger individual at the time of filing. 20 C.F.R. §§ 404.1563, 416.963; (A.R. 216).

         B. Procedural History

         On February 29, 2012, Plaintiff filed an application for supplemental security income under Title XVI of the Social Security Act (“Act”), and on March 14, 2012, Plaintiff filed an application for disability insurance benefits under Title II of the Act. (A.R. 11). Plaintiff has filed four prior applications. (A.R. 16). The third application was filed on August 20, 2009, and denied by Administrative Law Judge (“ALJ”) J. Carletti on December 27, 2010[2]. (Id., A.R. 102). The Appeal's Council denied review of the ALJ's decision on January 4, 2011. (A.R. 16). As to Plaintiff's 2012 applications, his claims were denied initially on October 19, 2012, and denied upon reconsideration on April 17, 2013. (A.R. 11). Plaintiff requested a hearing before an ALJ, and a hearing was held on June 5, 2014, before ALJ Eric V. Benham. (A.R. 29-48). Plaintiff appeared and was represented by counsel. (A.R. 29). Plaintiff and Vocational Expert (“VE”) Mark Remas testified at the hearing. (A.R. 32-47).

         On September 18, 2014, the ALJ issued a written decision finding Plaintiff not disabled. (A.R. 11-21). Plaintiff appealed, and the Appeals Council denied Plaintiff's request to review the ALJ's decision. (A.R. 1-3). Consequently, the ALJ's decision became the final decision of the Commissioner. (A.R. 1).

         On May 3, 2016, Plaintiff filed a Complaint with this Court seeking judicial review of the Commissioner's decision. (ECF No. 1). On August 4, 2016, Defendant answered and lodged the administrative record with the Court. (ECF Nos. 10, 11). On October 18, 2016, Plaintiff moved for summary judgment. (ECF No. 20). On November 18, 2016, the Commissioner cross-moved for summary judgment and responded in opposition to Plaintiff's motion. (ECF Nos. 20, 21).

         II. DISCUSSION

         A. Legal Standard

         The supplemental security income program provides benefits to disabled persons without substantial resources and little income. 42 U.S.C. § 1382. To qualify, a claimant must establish an inability to engage in “substantial gainful activity” because of a “medically determinable physical or mental impairment” that “has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(A). The disabling impairment must be so severe that, considering age, education and work experience, the claimant cannot engage in any kind of substantial gainful work that exists in the national economy. 42 U.S.C. § 1382c(a)(3)(B).

         The Commissioner makes this assessment through a process of up to five steps. First, the claimant must not be engaged in substantial, gainful activity. 20 C.F.R. § 416.920(b). Second, the claimant must have a “severe” impairment. 20 C.F.R. § 416.920(c). Third, the medical evidence of the claimant's impairment is compared to a list of impairments that are presumed severe enough to preclude work. 20 C.F.R. § 416.920(d). If the claimant's impairment meets or is equivalent to the requirements for one of the listed impairments, benefits are awarded. Id. If the claimant's impairment does not meet or is not equivalent to the requirements of a listed impairment, the analysis continues to a fourth and possibly fifth step and considers the claimant's residual functional capacity. 20 C.F.R. § 416.920(e). At the fourth step, the claimant's relevant work history is considered along with the claimant's residual functional capacity. Id. If the claimant can perform the claimant's past relevant work, benefits are denied. 20 C.F.R. § 416.920(f). At the fifth step, if the claimant is found not able to perform the claimant's past relevant work, the issue is whether claimant can perform any other work that exists in the national economy, considering the claimant's age, education, work experience, and residual functional capacity. 20 C.F.R. § 416.920(g). If the claimant cannot do other work that exists in the national economy, benefits are awarded. Id.

         Section 1383(c)(3) of the Social Security Act, through Section 405(g) of the Act, allows unsuccessful applicants to seek judicial review of a final agency decision of the Commissioner. 42 U.S.C. §§ 1383(c)(3), 405(g). The scope of judicial review is limited, and the Commissioner's denial of benefits “will be disturbed only if it is not supported by substantial evidence or is based on legal error.” Brawner v. Secretary of Health & Human Services, 839 F.2d 432, 433 (9th Cir. 1988) (quoting Green v. Heckler, 803 F.2d 528, 529 (9th Cir. 1986)).

         Substantial evidence means “more than a mere scintilla” but less than a preponderance. Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). “[I]t is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting Andrews v. Shalala 53 F.3d 1035, 1039 (9th Cir. 1995)). The court must consider the record as a whole, weighing both the evidence that supports and detracts from the Commissioner's conclusions. Desrosiers v. Secretary of Health & Human Services, 846 F.2d 573, 576 (9th Cir. 1988). If the evidence supports more than one rational interpretation, the court must uphold the ALJ's decision. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). When the evidence is inconclusive, “questions of credibility and resolution of conflicts in the testimony are functions solely of the Secretary.” Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982).

         The ALJ has a special duty in social security cases to fully and fairly develop the record in order to make an informed decision on a claimant's entitlement to disability benefits. DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991). Because disability hearings are not adversarial in nature, the ALJ must “inform himself about the facts relevant to his decision, ” even if the claimant is represented by counsel. Id. (quoting Heckler v. Campbell, 461 U.S. 458, 471 n.1 (1983)).

         Even if a reviewing court finds that substantial evidence supports the ALJ's conclusions, the court must set aside the decision if the ALJ failed to apply the proper legal standards in weighing the evidence and reaching his or her decision. Benitez v. Califano, 573 F.2d 653, 655 (9th Cir. 1978). Section 405(g) permits a court to enter a judgment affirming, modifying, or reversing the Commissioner's decision. 42 U.S.C. § 405(g). The reviewing court may also remand the matter to the Social Security Administration for further proceedings. Id.

         B. The ALJ's Decision

         The ALJ concluded Plaintiff was not disabled, as defined in the Social Security Act, from December 31, 2008, through the date of the ALJ's decision, September 18, 2014. (A.R. 20-21). The ALJ found that Plaintiff did not make a showing of changed circumstances sufficient to overcome the presumption of non-disability from the prior ALJ decision in December 2010. (A.R. 16).

         The ALJ found that Plaintiff has the following severe impairments: history of testicular cancer status post right orchiectomy without recurrence, cervical spine degenerative disc disease, right hand osteoarthritis, right wrist pain and right knee degenerative changes. (A.R. 13). The ALJ determined that Plaintiff's depression is not severe. (A.R. 13-14). Specifically, the ALJ found that Plaintiff has mild restrictions in daily living activities, social functioning and concentration, persistence or pace. (A.R. 14). The ALJ also determined that Plaintiff experienced no episodes of decompensation of extended duration. (Id.). The ALJ noted that Plaintiff was able to drive a car, attend school, ride a motorcycle, ride a bike, care for his daughter and engage in outdoor activities with her and was a jeweler for a hobby. (Id.).

         The ALJ further found that Plaintiff did not have an impairment or combination thereof that meets or is medically equivalent to the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926) because “[n]o physician has credibly opined that the [Plaintiff's] conditions meet or equal any listing, and the state agency program physicians opined that they do not.” (A.R. 15).

         Moreover, the ALJ found that Plaintiff has the residual functional capacity (“RFC”) to “perform the full range of heavy work as defined in 20 CFR [§§] 404.1567(d) and 416.967(d)” with no mental limitations. (A.R. 15, 18). In making this finding, the ALJ noted that Plaintiff's statements regarding the intensity, persistence, and limiting effects of his symptoms “are not entirely credible” and the objective medical evidence does not support Plaintiff's alleged symptoms. (A.R. 16). Based on the VE's testimony, the ALJ found that Plaintiff is capable of performing past relevant work as a newspaper deliverer and auto service supervisor because his RFC permits him to perform these jobs as they are generally performed. (A.R. 20). The ALJ specifically noted the following to be of particular relevance:

         1. Plaintiff's Testimony

         Plaintiff alleged that since December 31, 2008, pain in his neck, arm, hand, wrist and knee limits his abilities to perform postural and manipulative movements such as sitting, standing, walking and lifting and carrying. (A.R. 16). He alleged that his disability is due to mental and physical injuries. (Id.). The ALJ, however, found that Plaintiff's allegations concerning the intensity, persistence and limiting effects of his symptoms were “not entirely credible”. (Id.). Specifically, the ALJ found that Plaintiff's allegations of disabling mental and physical limitations are unsupported by objective medical evidence. (Id.).

         Plaintiff was diagnosed with and treated for testicular cancer in 2006, completed chemotherapy by January 2, 2007 and was able to resume full-time work delivering newspapers and performing manual labor. (A.R. 16-17). The ALJ noted that Plaintiff does not allege current impairment due to cancer and no evidence of cancer recurrence exists. (A.R. 17).

         Plaintiff alleged three motor vehicle accidents in 2008 and another in 2011. (Id.). The ALJ incorporated by reference the prior ALJ's 2010 decision and stated that Plaintiff's “exaggeration of the severity of these accidents and the lack of objective evidence of injury impair the [Plaintiff's] credibility.” (Id.). Particularly, the ALJ noted that after Plaintiff's December 20, 2008 motorcycle accident, he complained of bilateral knee, wrist and left thumb pain, but radiographs of Plaintiff's pelvis and bilateral knees were negative. (Id.). The ALJ also acknowledged that Plaintiff was discharged from the emergency department with no prescriptions and was walking appropriately. (Id.).

         With respect to Plaintiff's October 4, 2011 motorcycle accident, the ALJ noted that on October 10, 2011, Plaintiff was not taking any medications, and that in a November 2011 neurologic exam, Plaintiff “walked with a limp but was nonetheless able to toe, heel and tandem walk” and showed no evidence of focal weakness or atrophy of the upper or lower extremities, except for his right thumb muscles. (A.R. 17). On May 21, 2012, Plaintiff complained of foot pain, but his radiographs were normal, except for hallux valgus. (Id.). ...


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