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Clay v. Colvin

United States District Court, S.D. California

April 25, 2017

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


          Barbara L. Major United States Magistrate Judge

         Plaintiff Glenn Edwin Clay brought this action for judicial review of the Social Security Commissioner's (“Commissioner”) denial of his claim for disability insurance benefits. ECF No. 1. Before the Court are Plaintiff's Motion for Summary Judgment [ECF No. 32-1 (“Pl.'s Mot.”)], Defendant's Cross-Motion for Summary Judgment and Opposition to Plaintiff's motion [ECF Nos. 33-1 and 34-1[1] (“Def.'s Mot.”)], and Plaintiff's Reply [ECF No. 35 (“Pl.'s Reply”)].

         This Report and Recommendation is submitted to United States District Judge Cynthia Bashant pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 72.1(c) of the United States District Court for the Southern District of California. For the reasons set forth below, this Court RECOMMENDS that Plaintiff's Motion for Summary Judgment be DENIED and Defendant's Cross-Motion for Summary Judgment be GRANTED.


         On January 24, 2012, Plaintiff filed a Title XVI application for supplemental security income, alleging disability beginning on January 1, 2009. See Administrative Record (“AR”) at 185-93. The claim was denied initially on March 7, 2012, and upon reconsideration on September 25, 2012, resulting in Plaintiff's request for an administrative hearing. Id. at 85-93, 95-105, 125.

         On November 4, 2013, a hearing was held before Administrative Law Judge (“ALJ”) Jesse Pease. Id. at 62-84. Plaintiff, who was represented by counsel, and an impartial vocational expert (“VE”) Alan Ey testified at the hearing. See id. In a written decision dated November 15, 2013, ALJ Pease determined that Plaintiff “has not been under a disability within the meaning of the Social Security Act since January 24, 2012, the date the application was filed.” Id. at 43, 56. Plaintiff requested review by the Appeals Council. Id. at 26. In an order dated October 22, 2014, the Appeals Council denied review of the ALJ's ruling, and the ALJ's decision therefore became the final decision of the Commissioner. Id. at 9-15.

         On December 8, 2014, Plaintiff filed the instant action seeking judicial review by the federal district court. See ECF No. 1. On December 14, 2015, the District Judge held a hearing due to Plaintiff's failure to prosecute the case under Civil Local Rule 41.1 and failure to serve his Complaint in compliance with the Federal Rules of Civil Procedure. ECF Nos. 6 & 7. Plaintiff did not appear at the hearing, and on December 15, 2015, the Court dismissed the action without prejudice and entered judgment. ECF No. 8; see also ECF No. 7. On February 8, 2016, Plaintiff filed a motion to vacate or set aside the dismissal and reopen the case, claiming that he was incarcerated from March 31, 2015 until February 1, 2016. ECF No. 10 at 1-2. On February 23, 2016, the District Judge granted Plaintiff's motion, vacated the judgment and dismissal, and reopened the case. ECF No. 11 at 2.

         On August 15, 2016, Plaintiff filed a motion for summary judgment alleging that “the ALJ failed to provide clear and convincing reasons to reject the opinion of [Plaintiff's] treating doctors.” Pl.'s Mot. at 3-8. On September 9, 2016, Defendant filed a timely cross-motion for summary judgment asserting that the ALJ's decision was supported by substantial evidence and the ALJ correctly gave reduced weight to the opinions of Plaintiff's treating physicians because the opinions lacked support and were inconsistent with the record. Def.'s Mot. at 3-22. On September 26, 2016, Plaintiff timely filed a reply. Pl.'s Reply. Defendant did not file a reply. See Docket.


         On November 4, 2013, ALJ Pease presided over a disability hearing during which Plaintiff and a VE testified. See AR at 43, 62-84. Plaintiff was fifty-five years old at the time of the hearing. See id. at 65. During the hearing, the ALJ questioned Plaintiff regarding his work experience and alleged disability. Id. at 66-77. Plaintiff testified that he has a GED, that he has not worked since May 2009, that he was incarcerated for four months for a drug-related crime and released on June 25, 2013, and that he is homeless. Id. at 66, 70, 76.

         Plaintiff stated that he has several “issues” with his right knee, ankle, and foot, and that he is awaiting a surgery authorization for his right foot. Id. at 67. In regard to his right foot, Plaintiff stated that his doctor wants to remove a bunion from “where the bone comes from the ankle and connects to the big toe . . . because it's all frozen.” Id. at 68. With respect to his right knee, Plaintiff testified that his “knee is gone, ” that he is “losing tissue” under his right knee cap, has “bone on bone in there, ” and has “a very thin layer left between the outside of the bone . . . on the outside of the leg from the kneecap going around the back.” Id. at 67-68. Plaintiff stated that he had a surgery on that knee, during which “loose material” in the knee was “cleaned out.” Id. at 68. Plaintiff also testified that he underwent a 6-7 week therapy involving the discharge of “electrical pulse that went through” his knee, and that he is getting injections every 90 days. Id. at 71-72. Plaintiff alleged that he continues to have “problems” with the knee and would need to have the knee “replaced eventually.” Id. at 68.

         Plaintiff stated that he uses a cane and wears a foot brace. Id. at 71-72. Plaintiff further stated that he takes Vicodin, Diclosneg, Tylenol, Napercin, Aspirin, and Netadine, and that Vicodin “really help[s] out” with his pain, but that pain medication makes him drowsy. Id. at 72-74. He claimed that he needs to stand up and “wiggle a little bit” to keep himself from falling asleep while sitting. Id. at 73. Plaintiff testified that he sleeps for about five to six hours a night, frequently wakes up in pain, urinates 4-5 times a night, and naps about four hours per day. Id. at 74-75.

         Plaintiff also testified that he has issues with the left side of his hip and left shoulder, and that his left shoulder magnetic resonance imaging (“MRI”) showed a “hole” inside of his rotator cuff. Id. at 69. Plaintiff further alleged that that when he reaches to pick up something or reaches above his head with both hands, his left shoulder “gives [him] problems.” Id. Plaintiff stated that he can lift approximately 20 pounds with his left arm, but cannot do it “off and on all day long, ” and that he is not sure how much he can lift with his right arm. Id. He testified that he sometimes wipes tables and picks up light chairs as part of his “recovery program.” Id. at 70. He also stated that he can walk short distances, but needs to sit down, and that sometimes when he sits, he gets stiff and needs to stand up and/or stretch out. Id. Plaintiff also testified that after he reads, he needs to rest his eyes, and that sometimes he cannot easily retain information. Id. at 75-76. Additionally, Plaintiff claimed that he had been having “stomach pains for a few years.” Id. at 70.

         Plaintiff further testified that he had performed “line installer, ” telecommunications, and telemarketing work in the past. Id. at 78-79. The VE classified Plaintiff's past work as a line installer-repairer, 832.381-014, SVP-7, skilled, heavy; a machine operator, 649.685-070, SVP-3, semi-skilled, medium “although it may have been heavy as performed”; and a telemarketer, 299.357-014, SVP-3, semi-skilled, sedentary.


         On November 15, 2013, the ALJ issued a written decision in which he determined that Plaintiff was not disabled as defined in the Social Security Disability Act. Id. at 43-56. Initially, the ALJ found that Plaintiff had not engaged in substantial gainful activity since January 24, 2012, the application date. Id. at 45. He then considered all of Plaintiff's medical impairments and determined that Plaintiff had the following “nonsevere” impairments: “gastritis, esophageal dyskinesia, allergic rhinitis, left knee lateral patellofemoral ligament sprain and superficial cartilage fissure, left foot big toe bunion, and obesity.” Id. The ALJ further determined that the following of Plaintiff's impairments were “severe” as defined in the Regulations:

right knee severe osteoarthritis, with Grade 4 medial femoral condyle eburnation and suprapatellar lipoma and medial meniscus tear, status post right knee diagnostic arthroscopy, partial medial meniscectomy, excision of suprapatellar lipoma, and minor chondroplasty on July 13, 2012; right foot big toe hallux valgus deformity (a.k.a., bunion) with hallux limitus; left shoulder partial-thickness articular surface tear of the supraspinatus tendon, a tiny focal full-thickness perforation at the junction of the supraspinatus and infraspinatus tendons, and os acromiale; and left hip modest osteoarthritis.

Id.; see also id. at 49-53. At step three, the ALJ found that Plaintiff did “not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).” Id. at 47.

         The ALJ concluded that Plaintiff's residual functional capacity (“RFC”) permitted him to “stand and/or walk for two hours out of an eight-hour workday, ” and to “lift a maximum of 10 pounds with the non-dominant left upper extremity, ” which comports with a “capacity to perform a range of light work, as defined in 20 C.F.R. § 416.967(b) and SSR 83-10.” Id. The ALJ further found that Plaintiff is “precluded from overhead activity with the non-dominant left upper extremity . . . climbing ladders, ropes, or scaffolds, ” but that he can “otherwise perform postural activities on an occasional basis, ” and that he needs to use a cane “for ambulation outside his immediate work area.” Id. at 47-48. The ALJ then found that Plaintiff could still perform his past relevant work as a telemarketer. Id. at 56.


         Section 405(g) of the Social Security Act permits unsuccessful applicants to seek judicial review of the Commissioner's final decision. 42 U.S.C. § 405(g). The scope of judicial review is limited in that a denial of benefits will not be disturbed if it is supported by substantial evidence and contains no legal error. Id.; see also Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).

         Substantial evidence is “more than a mere scintilla, but may be less than a preponderance.” Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001) (citation omitted). It is “relevant evidence that, considering the entire record, a reasonable person might accept as adequate to support a conclusion.” Id. (citation omitted); see also Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2003). “In determining whether the [ALJ's] findings are supported by substantial evidence, [the court] must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the [ALJ's] conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998) (citations omitted). Where the evidence can reasonably be construed to support more than one rational interpretation, the court must uphold the ALJ's decision. See Batson, 359 F.3d at 1193. This includes deferring to the ALJ's credibility determinations and resolutions of evidentiary conflicts. See Lewis, 236 F.3d at 509.

         Even if the 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. See Batson, 359 F.3d at 1193. Section 405(g) permits a court to enter 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.


         Plaintiff argues that the ALJ failed to provide a legitimate basis for rejecting the opinions of his treating physicians, Drs. Zink and Tafara. Pl.'s Mot. at 5-8. Plaintiff further asserts that the ALJ should have recontacted his treating physicians for clarification as part of the ALJ's duty to develop the record. Id. at 6. Plaintiff also argues that the Court should “credit the limitations of the treating doctors as true and award the benefits sought.” Id. at 7.

         Defendant contends that the ALJ “provided good reasons in assigning little weight to the opinions of Plaintiff's treating physicians provided in a pre-printed checklist questionnaire, ” which Plaintiff's attorney requested Drs. Zink and Tafara to fill out. Def.'s Mot. at 10-12. Specifically, Defendant contends that Dr. Zink's questionnaire includes an opinion on an issue reserved to the Commissioner, lacks detailed explanation, and contains responses that are self-contradictory and inconsistent with the medical record, Plaintiff's testimony, and Dr. Haaland's opinion. Id. at 12-24. Defendant also argues that Dr. Tafara failed to provide a detailed explanation supporting her opinion. Id. at 12-13. Finally, Defendant asserts that the ALJ had no duty to further develop the record in this case. Id. at 22-27.

         Plaintiff replies that the ALJ failed to identify clear and convincing reasons for rejecting the opinions of Drs. Zink and Tafara. Pl.'s Reply at 3-5. Plaintiff notes that Dr. Zink's and Dr. Tafara's opinions are “not contradicted by any other treating doctor and the limitations are supported by the treatment notes.” Id. at 3-4. Plaintiff also contends that Defendant merely highlighted the ALJ's inadequate analysis by providing “post hoc rationales to fill in the gaps of the ALJ's [decision].” Id. at 4.

         I. Opinions of ...

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