United States District Court, S.D. California
REPORT AND RECOMMENDATION FOR ORDER DENYING
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [ECF Nos. 32,
Barbara L. Major United States Magistrate Judge
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 (“Def.'s Mot.”)], and
Plaintiff's Reply [ECF No. 35 (“Pl.'s
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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).
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.
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
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.
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.
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.
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