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McCollough v. Colvin

United States District Court, S.D. California

June 28, 2017

JOSEPH ALLEN MCCOLLOUGH III, Plaintiff,
v.
CAROLYN W. COLVIN, Defendant.

          REPORT AND RECOMMENDATION RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT [ECF NOS. 15 & 17.]

          HON. WILLIAM V. GALLO, UNITED STATES MAGISTRATE JUDGE

         This is an action for judicial review of a decision by the Acting Commissioner of Social Security, Carolyn W. Colvin (“the Commissioner, ” or “Defendant”), denying Plaintiff Joseph Allen McCollough III (“Plaintiff”) disability insurance benefits (“DIB”) under Title II of the Social Security Act (“Act”) and supplemental security income (“SSI”) benefits under Title XVI of the Act. The parties have filed cross-motions for summary judgment, and the matter is before the undersigned Magistrate Judge for preparation of a Report and Recommendation. See 28 U.S.C. § 636; S.D. Cal. Civ. L. R. 72.1(c). For the reasons stated below, the Court RECOMMENDS that Plaintiff's motion for summary judgment be DENIED, Defendant's cross-motion for summary judgment be GRANTED, and judgment be entered accordingly.

         I. SOCIAL SECURITY CLAIM PROCEEDINGS

         Pursuant to the Act, the Social Security Administration (“SSA”) administers the DIB and the SSI programs. 42 U.S.C. § 901. The Act authorizes the SSA to create a system by which it determines who is entitled to benefits and by which unsuccessful claimants may obtain review of adverse determinations. Id. §§ 423 et seq. Defendant, as Acting Commissioner of the SSA, is responsible for the Act's administration. Id. § 902(a)(4), (b)(4).

         A. SSA's Sequential Five-Step Process

         The SSA employs a sequential five-step evaluation to determine whether a claimant is eligible for benefits. 20 C.F.R. §§ 416.920, 404.1520. To qualify for disability benefits under the Act, a claimant must establish (1) he or she is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment, ” 42 U.S.C. § 423(d)(1)(A); (2) his or her impairment persisted at least longer than a twelve month period, id.; see also 20 C.F.R. § 404.1509; and (3) he or she “either was permanently disabled or subject to a condition which became so severe as to create a disability prior to the date upon which [his or] her disability insured status expired, ” Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995); see also 42 U.S.C. § 423(a)(1)(A).

         An administrative law judge (“ALJ”) presides over the five-step process to determine disability. See Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003). If the Commissioner finds that a claimant is disabled or not disabled at any step in this process, the review process is terminated at that step. Corrao v. Shalala, 20 F.3d 943, 946 (9th Cir. 1994).

         Step one in the sequential evaluation considers a claimant's “work activity, if any.” 20 C.F.R. § 404.1520(a)(4)(i). An ALJ will deny a claimant disability benefits if the claimant is engaged in “substantial gainful activity.” Id. §§ 404.1520(b), 416.920(b).

         If a claimant cannot provide proof of gainful work activity, the ALJ proceeds to step two to ascertain whether the claimant has a medically severe impairment or combination of impairments. The so-called “severity regulation” dictates the course of this analysis. Id. §§ 404.1520(c), 416.920(c); see also Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987).

         An ALJ will deny a claimant's disability claim if the ALJ does not find that a claimant suffers from a severe impairment, or combination of impairments, which significantly limits the claimant's physical or mental ability to do “basic work activities.” Id. § 404.1520(c). The ability to do “basic work activities” means “the abilities and aptitudes necessary to do most jobs.” Id. §§ 404.1521(b), 416.921(b).

         However, if the impairment is severe, the evaluation proceeds to step three. At step three, the ALJ determines whether the impairment is equivalent to one of several listed impairments that the SSA acknowledges are so severe as to preclude substantial gainful activity. Id. §§ 404.1520(d), 416.920(d). An ALJ conclusively presumes a claimant is disabled so long as the impairment meets or equals one of the listed impairments. Id. §§ 404.1520(d).

         If the ALJ has not yet deemed a claimant disabled, but before formally proceeding to step four, the ALJ must establish the claimant's Residual Functional Capacity (“RFC”). Id. §§ 404.1520(e), 404.1545(a). An individual's RFC is his or her ability to do physical and mental work activities on a sustained basis despite limitations from his or her impairments. Id. §§ 404.945(a)(1), 404.1545(a)(1). The RFC analysis considers “whether [the claimant's] impairment(s), and any related symptoms, such as pain, may cause physical and mental limitations that affect what [the claimant] can do in a work setting.” Id. §§ 404.1545(a)(1), 416.945(a)(1). In establishing a claimant's RFC, the ALJ must assess relevant medical and other evidence, as well as consider all of the claimant's impairments, including impairments categorized as non-severe. Id. § 404.1545(a)(3), (e).

         At step four, the ALJ uses the claimant's RFC to determine whether the claimant has the RFC to perform the requirements of their past relevant work. 20 Id. § 404.1520(f). So long as a claimant has the RFC to carry out his or her past relevant work, the claimant is not disabled. Id. §§ 404.1560(b)(3). Conversely, if the claimant either cannot or does not have any past relevant work, the analysis presses onward.

         At the fifth and final step of the SSA's evaluation, the ALJ must verify whether the claimant is able to do any other work in light of his or her RFC, age, education, and work experience. Id. § 404.1520(g). If the claimant is able to do other work, the claimant is not disabled. However, if the claimant is not able to do other work and meets the duration requirement, the claimant is disabled. Id. Although the claimant generally continues to have the burden of proving disability at step five, a limited burden of going forward with the evidence shifts to the SSA. At this stage, the SSA must present evidence demonstrating that other work that the claimant can perform-allowing for his RFC, age, education, and work experience-exists in significant numbers in the national economy. Id. §§ 404.1520, 1560(c), 416.920, 404.1512(f).

         B. SSA Hearings and Appeals Process

         A network of SSA field offices and state disability determination services initially process applications for disability benefits. The processing begins when a claimant completes both an application and an adult disability report, and submits those documents to one of the SSA's field offices. If the SSA denies the claim, the claimant is entitled to a hearing before an ALJ in the SSA's Office of Disability Adjudication and Review. Id. §§ 404.929, 416.1429. A hearing before an ALJ is informal and non-adversarial. Id. § 404.900(b).

         In accordance with Defendant's delegation, the Office of Disability Adjudication and Review administers a nationwide hearings and appeals program. SSA regulations provide for a four-step process for administrative review of a claimant's application for disability payments. See 20 C.F.R. §§ 416.1400, 404.900. Once the SSA makes an initial determination, three more levels of appeal exist: (1) reconsideration, (2) hearing by an ALJ, and (3) review by the Appeals Council. See Id. §§ 416.1400, 404.900. If the claimant receives an unfavorable decision by an ALJ, the claimant may request review by the Appeals Council. 20 C.F.R. §§ 404.967, 416.1467. The Appeals Council will grant, deny, dismiss, or remand a claimant's request. Id. §§ 416.1479, 404.979. If the claimant is not satisfied with the decision at any step of the process, the claimant has sixty days to seek administrative review. See Id. §§ 404.933, 416.1433. If the claimant does not request review, the decision becomes the SSA's-and hence Defendant's-binding and final decree. See Id. §§ 404.905, 416.1405.

         If a claimant disagrees with the Appeals Council's decision or the Appeals Council declines to review the claim, the claimant may seek judicial review in a federal district court pursuant to 42 U.S.C. § 405(g) or § 1383(c). See 20 C.F.R. §§ 404.981, 416.1481. If a district court remands the claim, the claim is sent to the Appeals Council, which may either make a decision or refer the matter to another ALJ. Id. § 404.983.

         II. BACKGROUND

         A. Administrative Proceedings

         On August 15, 2012, Plaintiff protectively filed an application for DIB and SSI, alleging disability as of June 15, 2012. (AR 25, 85, 86.) On December 18, 2012, the SSA denied Plaintiff's initial application. (AR 25, 74, 83.) On August 2, 2013, Plaintiff was again denied benefits upon reconsideration. (AR 25, 97, 108.)

         On August 21, 2014, the ALJ held a hearing to review Plaintiff's case in San Diego, California. (AR 25.) Plaintiff, medical expert John R. Morse, M.D., and vocational expert Behnush Barzegarian testified at the hearing. (Id.)

         The ALJ issued his written decision on November 4, 2014. (AR 25-32.) At step one of the sequential evaluation process described above, the ALJ found that Plaintiff had not engaged in substantial gainful activity since his alleged onset date of June 15, 2012. (AR 27.)

         At step two, the ALJ found that Plaintiff had the following severe impairments: ulcerative colitis, irritable bowel syndrome (IBS), gastroesophageal reflux disease (GERD), diabetes mellitus, degenerative disc disease, and obesity. (AR 27-28.)

         At step three, the ALJ concluded that Plaintiff did not have an impairment, or combination of impairments, that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (AR 28.)

         Between steps three and four, in his RFC determination, the ALJ found that Plaintiff could perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) with the exceptions that “the claimant is able to occasionally climb ramps and stairs but may never climb ladders, ropes and scaffolds; is able to occasionally balance, stoop, kneel, crouch, and crawl; and must avoid even moderate exposure to hazardous machinery and unprotected heights.” (AR 28-31.)

         At step four, the ALJ found that Plaintiff was capable of performing past relevant work as a “sorter pricer.” (AR 31-32.) This determination in step four meant that Plaintiff was not disabled and was the reason the ALJ terminated his evaluation. (AR 31-32.) Accordingly, the ALJ found that Plaintiff was not disabled from June 15, 2012, his alleged onset of disability date, through the date of the decision. (AR 32.)

         On January 5, 2015, Plaintiff requested a review of the ALJ's decision. (AR 19-21.) On April 11, 2016, the Appeals Council denied review. (AR 1-6.) The ALJ's decision thereupon became the SSA's final and definitive determination in Plaintiff's case. 42 U.S.C. § 405(g).

         On May 16, 2016, Plaintiff commenced the instant action for judicial review. (ECF No. 1.) On November 28, 2016, Plaintiff filed a Motion for Summary Judgment (“MSJ”). (ECF No. 15.) On December 15, 2016, Defendant filed a Cross-Motion for Summary Judgment (“Cross-MSJ”) and opposition to Plaintiff's MSJ. (ECF No. 17.) On January 14, 2017, Plaintiff filed a reply to Defendant's Cross-MSJ. (ECF No. 18.)

         B. Summary of Relevant Medical Records Submitted to the ALJ for Review

         The medical documentation in the record dates back to 2003 and focuses mostly on Plaintiff's ulcerative colitis and degenerative lumbar disc disease. Plaintiff's ulcerative colitis caused periodic flare-ups two to four times per year, during which Plaintiff experienced increased diarrhea, abdominal pain, and blood in the stool. (AR 544.) Plaintiff also suffered from sleep apnea, IBS, type 2 diabetes, GERD, and hypogonadism for which he received periodic testosterone shots. (AR 286-456 Passim.)

         Between 2005 and February 2012, Plaintiff visited gastroenterologists Dr. Paul Craig and Dr. Nawang Sherpa twenty-four times in Spokane Valley, Washington, to treat his ulcerative colitis. (AR 292-331.) During this time period, Plaintiff experienced periodic flare-ups of his ulcerative colitis and received regular colonoscopies but nonetheless continued to work for Goodwill as a laborer. (Id.) The ulcerative colitis was controlled with a regimen of sulfaslazine and folate along with rowasa enemas as needed. (AR 299, 301, 303, 305, 308-309, 318.). His treatment plan also included diet and exercise to manage his mild obesity. (AR 297, 303, 305, 311.) On August 15, 2011, Plaintiff underwent an epidural steroid injection to treat persistent pain in his lower back. (AR 287-288.) On February 20, 2012, Plaintiff's ulcerative colitis and IBS symptoms became aggravated from stress caused by his mother's death. (AR 295.)

         On August 22, 2012, Plaintiff visited Palomar Medical Center's emergency room in Escondido, California, complaining of abdominal pain and rectal bleeding caused by a flare-up of his ulcerative colitis. (AR 335.) An examination also revealed lower extremity edema, and CT scans showed degenerative changes to his spine. (AR 336, 345.) Prior to this time, Plaintiff had not seen a doctor since his February 28, 2012 visit with Dr. Craig. (AR 335.) During this gap, Plaintiff had left his job at Goodwill and moved to California to live with his sister. (Id.) He remained unemployed. (Id.)

         In the ensuing four months, Plaintiff visited Neighborhood Healthcare six times to get treatment for his ulcerative colitis, as well as testosterone shots for his hypogonadism. (AR 357-378.) During these visits, his diarrhea and bloody stool symptoms became less prominent. (Id.)

         From January to June 2013, Plaintiff visited Neighborhood Healthcare thirteen times for ulcerative colitis checkups, lab work, and testosterone injections. (AR 411-438.) The record shows general improvements in his diarrhea-down to eight bowel movements a day-but, on June 12, 2013, Plaintiff experienced a flare- up of his ulcerative colitis. (AR 413, 425.) Plaintiff's back pain continued to increase during this period. On February 18, 2013, his pain medication was doubled after he complained that the pain had spread to his leg. (AR 430.) On February 27, 2013, radiology reports showed mild degenerative disc disease but no acute abnormalities. (AR 451.) And on May 1, 2013, plaintiff received several epidurals to manage his back pain and began physical therapy for his back. (AR 419.) At this point, plaintiff required a cane to walk. (AR 420.)

         The final period of medical documentation in the record spans from July 2013 through June 2014. During this one-year period, Plaintiff visited Neighborhood Healthcare nineteen times, visited a gastroenterologist at UC San Diego Health Care four times, and participated in physical therapy at Palomar Pain Management Center. (AR 460-564.) During this period, Plaintiff experienced three flare-ups of his ulcerative colitis, but, on November 11, 2013, he began a steroid treatment that reduced his bowel movements to between one and four per day, though he did experience one flare-up in March 2014. (AR 474, 478, 544, 548.) The June 16, 2014 visit to Neighborhood Healthcare shows his ulcerative colitis was in remission. (AR 460.)

         Plaintiff continued to report increased back pain from 2013 to 2014. (AR 460-564.) Plaintiff had trouble getting up from seated positions and fell multiple times during medical checkups. (AR 460, 467, 497, 518, 525.) The July 12, 2013 medical report indicates that he was instructed “not to sit for long periods of time” and to “move legs a few times” before getting up. (AR 525.) On November 14, 2013, Plaintiff began taking Norco to manage his back pain, which had spread from his back to his toes. (AR 497.) The dosage was increased to 15 milligrams, four times per day, starting on June 16, 2014. (AR 466.) As of January 2014, the medical reports indicated that the physical therapy did not have much success in alleviating Plaintiff's pain. But by July 2014, the reports showed that Plaintiff had experienced “moderate improvements.” (AR 485, 536.) Additionally, in March 2014, Plaintiff was diagnosed as morbidly obese and told that he must diet to facilitate weight loss. (AR 476, 537.)

         The record shows that Plaintiff has suffered edema of his extremities periodically over the past twelve years, but it does not seem to be a persisting ailment. (AR 336, 414, 546, 549, 563.) As recently as March 12, 2014, he did not appear to have any edema of his extremities but was told to check his feet daily for swelling. (AR 475-476.) However, Plaintiff's visit to Center City Podiatry Group on April 22, 2014, does reference pitting ankle edema. (AR 563.) During that visit, Plaintiff was fitted for diabetic extra depth shoes to address the swelling. (Id.)

         C. Plaintiff's Testimony

         Plaintiff testified at the hearing before the ALJ on November 4, 2014. (AR 40-56.) As is relevant here, Plaintiff told the ALJ that he experienced pain that extended from his entire back down to his feet. (AR 45.) The pain prevented him from walking more than a block, sitting more than a half hour without stretching, standing more than ten minutes at a time, or lifting more than a gallon of water. (AR 46, 51.) Plaintiff stated that he must use a cane to walk but could still drive. (AR 43, 44.) The pain was managed by medication and physical therapy, which Plaintiff testified did not help. (AR 44.)

         The ulcerative colitis symptoms Plaintiff experienced included cramping pain, diarrhea, and rectal bleeding. (AR 42, 47.) Plaintiff claimed that during bad days he used the bathroom between ten and one hundred times per hour, and on good days, every twenty to thirty minutes. (AR 47-48.) However, Plaintiff confirmed that the ulcerative colitis was in remission but indicated that his IBS was worse than it was two years before the hearing and claimed that he had been unable to start new treatment to keep the ulcerative colitis in remission because of insurance issues. (AR 43, 49, 54.)

         Regarding Plaintiff's ability to function daily, he testified that he had difficulties showering and getting dressed. (AR 51-52.) Plaintiff also testified that while he left his job at Goodwill because he had relocated, he would have had to stop working because of his increasing back pain. (AR 40-41.) He further stated that when he tried to find work at a different Goodwill, he was told that despite his experience, he “could never do the work.” (AR 52.)

         D. The Medical Expert's Testimony

         Dr. John R. Morse testified as the medical expert at Plaintiff's hearing after listening to his testimony. (AR 57-62.) Prior to the hearing, Dr. Morse had evaluated Plaintiff's medical records, Exhibits F1-F9, [1] and attempted to identify any disabling medical conditions based on his reported issues and the medical documentation. (See AR 57.) In doing so, Dr. Morse determined that Plaintiff's ulcerative colitis, diabetes, [2] and degenerative disc disease constituted severe medical impairments. (AR 58-59.) Otherwise, Dr. Morse opined that Plaintiff's IBS and hypogonadism presented only non-severe impairments. (AR 58.)

         Dr. Morse first considered Plaintiff's ulcerative colitis and determined that it was a severe impairment that would impose restrictions on his activity. (AR 57-58.) Plaintiff had been dealing with this condition for at least a decade and it had been treated and controlled with Chloroquine medications. (Id.) The condition was chronic and had waxed and waned, but Plaintiff had learned to live with it. (AR 62.) The ulcerative colitis was likely the cause of his incontinence of stool, and there was no mention specifically of urinary incontinence in the record.[3] (AR 61-62.) Dr. Morse indicated that the record showed that Plaintiff's ulcerative colitis was in remission, and Plaintiff's medical records did not demonstrate the requirements of the ulcerative colitis listing in 20 C.F.R. Part 404, Subpart P, Appendix 1. (See AR 58.)

         Next, Dr. Morse considered Plaintiff's IBS, GERD, hypogonadism, and diabetes. (AR 58.) He opined that the IBS was explained by his ulcerative colitis and was not a separate issue. (Id.) Both the GERD and hypogonadism were being treated and were non-severe. (Id.) Plaintiff's diabetes, however, was a major medical issue and was further complicated by his obesity but was not subject to additional complications. (Id.)

         Finally, Dr. Morse considered Plaintiff's multi-level degenerative disc disease. (AR 58-59.) He opined that evidence from the medical records supported this impairment, as there were X-rays and MRIs that confirmed the condition. (Id.) The condition created sciatic symptoms and sensory deficiencies, which explained Plaintiff's recorded pain in his back and lower extremities. (Id.) The pain in Plaintiff's feet could be caused by either his disc disease or his diabetes, but the medical records were not clear as to which. (AR 60-61.) Dr. Morse opined that Plaintiff was not a candidate for surgery to fix this issue and that the degenerative disc disease was a severe impairment that would have contributed to his limitations. (AR 59.)

         Based on these conditions, Dr. Morse opined that Plaintiff could perform the following activities: (1) lift ten pounds on a frequent basis; (2) lift twenty pounds occasionally; (3) stand or walk for six hours out of an eight-hour day; (4) sit six hours out of an eight-hour day with normal breaks; (5) occasionally traverse ramps and stairs; and (6) engage in limited stooping, kneeling, crouching, and crawling. (Id.) Plaintiff would also be restricted from engaging in the following activities: (1) climbing ladders, ropes or scaffolds and (2) being exposed to hazardous machinery and unprotected heights. (Id.) Plaintiff's main limitation, according to Dr. Morse, was his back pain. (Id.) However, Dr. Morse was skeptical as to whether the ulcerative colitis, which was in remission, added any additional limitations that did not already exist because of Plaintiff's back pain. (Id.)

         E. The ALJ's Findings[4]

         The ALJ's written statement of decision proceeded through the five-step disability determination process and ultimately concluded that, though Plaintiff suffered from severe ulcerative colitis, IBS, GERD, diabetes mellitus, degenerative disc disease, and obesity, he was not totally disabled and could perform past relevant work as a sorter pricer. (AR 31-32.) As relevant to the parties' pending summary judgment motions, the ALJ made the following ...


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