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Fleming v. Colvin

United States District Court, N.D. California, San Jose Division

June 29, 2017

JONATHAN BENJAMIN FLEMING, Plaintiff,
v.
CAROLYN COLVIN, et al., Defendants.

          ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING COMMISSIONER'S CROSS-MOTION FOR SUMMARY JUDGMENT Re: Dkt. Nos. 20,, 23

          LUCY H. KOH, United States District Judge

         Plaintiff Jonathan Fleming (“Plaintiff”) appeals a final decision of the Commissioner of Social Security (“Commissioner”) denying Plaintiff's application for a period of disability and disability insurance benefits under Title II of the Social Security Act. Before the Court are Plaintiff's motion for summary judgment, ECF No. 20 (“Pl. Mot.”), and the Commissioner's cross-motion for summary judgment, ECF No. 23 (“Comm. Mot.”). Having considered the parties' briefs, the relevant law, and the record in this case, the Court hereby DENIES Plaintiff's motion for summary judgment and GRANTS the Commissioner's cross-motion for summary judgment.

         I. BACKGROUND

         A. Plaintiff's Age and Educational, Vocational, and Medical History

         Plaintiff was born on July 27, 1983. See ECF No. 12 (Administrative Record, or “AR”), at 92. Plaintiff has a college education, and Plaintiff worked for four years as an engineer of combat vehicles at BAE Systems. See Id. at 48-49. Prior to Plaintiff's job as an engineer, Plaintiff had a summer job selling and installing alarm systems, and a summer job working at Home Depot Company. See Id. at 50-51.

         On August 13, 2009, Plaintiff's vehicle was rear-ended by a vehicle going in excess of sixty miles per hour. Id. at 355. As a result of the accident, Plaintiff alleges “injury to eight spinal discs, severe, horrible pain, muscle spasm, and thoracic outlet syndrome, ” in addition to anxiety. Id. at 92.

         B. Procedural History

         On April 23, 2012, Plaintiff filed a Title II application for a period of disability and disability insurance benefits. Id. at 79. The claim was denied initially on November 28, 2012, see Id. at 81, and was denied upon reconsideration on June 19, 2013, see Id. at 92. Plaintiff filed a written request for a hearing on June 24, 2013. Id. at 98. A hearing was held on February 13, 2014. See Id. at 38. On March 28, 2014, the ALJ issued a written opinion finding Plaintiff was not disabled and therefore not entitled to benefits. Id. at 17-32.

         Plaintiff appealed the ALJ's decision to the Appeals Council, who denied Plaintiff's appeal on November 5, 2015. Id. at 1. Plaintiff timely filed a complaint seeking judicial review of the Commissioner's decision in this Court on January 11, 2016. ECF No. 1.

         On November 8, 2016, Plaintiff filed a motion for summary judgment. Pl. Mot. On January 9, 2017, the Commissioner filed a cross-motion for summary judgment and opposition to Plaintiff's motion for summary judgment. See Comm. Mot. On January 17, 2017, Plaintiff filed a reply. ECF No. 24 (“Pl. Reply”).

         II. LEGAL STANDARD

         A. Standard of Review

         This Court has the authority to review the Commissioner's decision to deny benefits. 42 U.S.C. § 405(g). The Commissioner's decision will be disturbed only if it is not supported by substantial evidence or if it is based upon the application of improper legal standards. Morgan v. Cmm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995). In this context, the term “substantial evidence” means “more than a mere scintilla but less than a preponderance-it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion.” Moncada, 60 F.3d at 523; see also Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). When determining whether substantial evidence exists to support the Commissioner's decision, the court examines the administrative record as a whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Where evidence exists to support more than one rational interpretation, the court must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523; Drouin, 966 F.2d at 1258.

         B. Standard for Determining Disability

          Disability benefits are available under Title II of the Social Security Act when an eligible claimant is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).

         “ALJs are to apply a five-step sequential review process in determining whether a claimant qualifies as disabled.” Bray v. Comm'r of Soc. Sec. Admin, 554 F.3d 1219, 1222 (9th Cir. 2009). At step one, the ALJ determines whether the claimant is performing “substantial gainful activity.” 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled; if not, the analysis proceeds to step two. Id. At step two, the ALJ determines whether the claimant suffers from a severe impairment or combination of impairments. 20 C.F.R. § 404.1520(a)(4)(ii). If not, the claimant is not disabled; if so, the analysis proceeds to step three. Id. At step three, the ALJ determines whether the claimant's impairment or combination of impairments meets or medically equals an impairment listed in the Listing of Impairments (“Listing”), 20 C.F.R. § 404, subpt. P., app. 1. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is disabled; if not, the analysis proceeds to step four. Id. At step four, the ALJ determines whether the claimant has the residual functional capacity (“RFC”) to do his or her past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If so, the claimant is not disabled; if not, the analysis proceeds to step five. Id. At step five, the ALJ determines whether the claimant can do other jobs in the national economy. 20 C.F.R. § 404.1520(a)(4)(v). If so, the claimant is not disabled; if not, the claimant is disabled. “The burden of proof is on the claimant at steps one through four, but shifts to the Commissioner at step five.” Bray, 554 F.3d at 1222.

         III.DISCUSSION

         Plaintiff challenges the ALJ's determination that Plaintiff is not entitled to benefits. First, Plaintiff argues that the ALJ failed to provide “specific and legitimate” reasons supported by “substantial evidence” in the record to reject the more restrictive RFC evaluations of Plaintiff's treating and examining physicians. Pl. Mot. at 18-23. Second, and relatedly, Plaintiff argues that because the ALJ failed to offer specific and legitimate reasons supported by substantial evidence to reject the more restrictive RFC evaluations of Plaintiff's treating and examining physicians, the ALJ's RFC determination was not based on substantial evidence. Id. at 26-29. Third, Plaintiff contends that the ALJ failed to provide “clear and convincing” reasons for finding Plaintiff's subjective reports of his functional limitations to be less than credible. Id. at 23-26. Fourth, Plaintiff asserts that the ALJ failed to properly consider Plaintiff's obesity. Id. at 26. Finally, Plaintiff asserts that the ALJ failed to reconcile the differences between the vocational expert's (“VE”) testimony and the Dictionary of Occupational Titles (“DOT”), which lists the physical requirements of various job titles. Id. at 27-28.

         The Court first summarizes the relevant record evidence and the ALJ's written opinion. The Court then discusses each of Plaintiff's arguments.

         A. Relevant Record Evidence

         The Court begins by summarizing the relevant record evidence regarding Plaintiff's impairment. The Court first discusses relevant medical evidence regarding Plaintiff's physical limitations, and then discusses the relevant medical evidence regarding Plaintiff's non-physical limitations. Lastly, the Court addresses the relevant non-medical evidence of Plaintiff's limitations.

         1. Medical Evidence Regarding Plaintiff's Physical Limitations

         a. Thomas Johnson, M.D. (Treating Physician)

         On August 14, 2009-the day after Plaintiff was rear-ended in a car accident on August 13, 2009-Plaintiff saw Dr. Thomas Johnson (“Dr. Thomas Johnson”) at a “minor injury clinic.” AR 330-31. Plaintiff told Dr. Johnson that he was in a “high-impact” car accident, but that the airbags did not deploy. Id. Plaintiff complained to Dr. Thomas Johnson of “severe neck pain and stiffness, and mod[erate] low back pain and stiffness.” Id. at 331. Dr. Thomas Johnson noted that Plaintiff had painful range of motion in all directions, with flexion/extension to 25 degrees. Id. Dr. Thomas Johnson reported that Plaintiff had a “[n]ormal neurologic exam of extremities” and that Plaintiff “d[id] not appear to be seriously injured.” Id. Dr. Thomas Johnson prescribed Percocet and told Plaintiff to rest and avoid painful movements. Id.

         b. Kelli Andrea Johnson, M.D. (Treating Physician)

         Plaintiff first visited Dr. Kelli Andrea Johnson (“Dr. Johnson”) on August 17, 2009, four days after Plaintiff's car accident. Id. at 343. Dr. Johnson noted that Plaintiff was 6'1” and weighed 276 pounds, and Dr. Johnson described Plaintiff as “overweight.” Id. Plaintiff complained to Dr. Johnson of “neck pain, back pain, headache with sensitivity to light, ” and right “shoulder pain with radiation down the arm.” Id. at 344. Dr. Johnson described Plaintiff as “well appearing, and in no distress.” Id. Dr. Johnson found that there was “significant tenderness over spasming muscle” in Plaintiff's neck, primarily on the right side. Id. Dr. Johnson found that Plaintiff's “motor and sensory grossly normal bilaterally, normal muscle tone, no tremors” with 5/5 strength. Id. Dr. Johnson found that there was an “abnormal exam of right shoulder with decreased [range of motion] due to pain.” Id. Dr. Johnson ultimately found “no significant abnormality.” Id. at 345. She prescribed Plaintiff a muscle relaxer and referred Plaintiff to physical therapy. Id.

         Plaintiff visited Dr. Johnson again on August 27, 2009 and reported that he stopped taking his pain medication because “[h]e did not like the way the Percocet was making him feel.” Id. at 346. Plaintiff also stopped taking the muscle relaxer because it “seemed to be making [Plaintiff] tired.” Id. Plaintiff complained to Dr. Johnson of “new pain in the mid-back area, ” though Plaintiff had no weakness in his lower extremities, no saddle numbness, and no problem with urinary or bowel movements. Id. at 347. Dr. Johnson performed a back exam and found that Plaintiff had a “full range of motion, no tenderness, palpable spasm, or pain on motion.” Id. She noted tenderness over Plaintiff's spine, but “normal reflexes and strength bilateral lower extremities.” Id. She found diffuse tenderness throughout Plaintiff's neck “noted over tight cervical muscles.” Id. She advised Plaintiff to restart the muscle relaxer at half the dose and to follow up with physical therapy as planned. Id. at 348.

         Plaintiff saw Dr. Johnson again on November 10, 2009 and December 21, 2009. Plaintiff told Dr. Johnson that he “ha[d] been doing swimming, [physical therapy], stretching, water therapy, [and] spa therapy, ” and had lost ten pounds. Id. at 408-09. Plaintiff complained of “popping in the neck on the [left] side, ” which was causing pain down Plaintiff's arm. Id. at 417. Dr. Johnson “strongly encouraged [Plaintiff] to stay active” and “discussed considering getting [Plaintiff] back to at least part time in one month” depending on whether his work could accommodate him. AR 409-10.

         Plaintiff returned to Dr. Johnson on March 9, 2010 for Dr. Johnson to fill out disability paperwork for Plaintiff. Id. at 428. Plaintiff told Dr. Johnson that Plaintiff “returned to work but when he did, he was told by his employers that they did not want him to return to work until he was 100%, as they feel he is still a liability because he moves and works slowly.” Id. Plaintiff told Dr. Johnson that his employer wanted Plaintiff “to take the full 6 months off and return after that.” Id. Dr. Johnson thought that this was “a grossly inappropriate request” and that “this [was]

         setting [Plaintiff] up for potential life-long disability.” Id.

         On May 24, 2010, Plaintiff saw Dr. Johnson for a possible sexually transmitted disease after Plaintiff “started having intercourse with his girlfriend again.” Id. at 439.

         c. Dhiruj Ram Kirpalani, M.D. (Examining Physician)

         Plaintiff saw Dr. Dhiruj Ram Kirpalani (“Dr. Kirpalani”) for a consultation on September 30, 2009. Id. at 355. Plaintiff complained of pain in his neck, upper, and lower back, with radiating pain down his right lower extremity. Id. at 356. Plaintiff reported that he also experienced pain bilaterally down his lower extremities in his posterior thigh and “fire in [his right] ankle.” Id. Plaintiff stated that the average pain severity was 5-6/10, and that it was “worse with sitting.” Id. Plaintiff had no upper or lower extremity weakness. Id. Dr. Kirpalani reported that Plaintiff “appear[ed] in moderate distress due to pain” and that he was “[e]xhibiting a lot of pain behaviors.” Id. at 357. Dr. Kirpalani found tenderness in Plaintiff's trapezius and rhomboids, but no tenderness in Plaintiff's spine. Id. Plaintiff had 100% normal range of motion upon flexion in his cervical spine, but 50% range of motion upon extension, rotation, and bending. Id. at 357-58. Plaintiff had 5/5 muscle strength. Id. at 358. Dr. Kirpalani also observed normal gait, with heel and toe walking normal. Id.

         Dr. Kirpalani reviewed an MRI of Plaintiff's spine that was taken on September 22, 2009. Id. The MRI of Plaintiff's cervical spine showed that Plaintiff's cervical spinal cord and visualized soft tissues appeared “unremarkable.” Id. at 359. Dr. Kirpalani observed mild left focal disc protrusion at the C6-7 level, but “no evidence of central canal stenosis or neural foraminal narrowing.” Id.

         The MRI of Plaintiff's thoracic spine showed “mild central focal disc protrusion” “at the T6-T7, T7-T8, and T8-T9 levels, with “mild central canal stenosis” at the T8-T9 level but no neural foraminal narrowing. Id. Dr. Kirpalani noted that “[t]he remainder of the thoracic spine levels appear[ed] unremarkable without evidence of focal disc protrusion, disc extrusion, central canal stenosis or neural foraminal narrowing.” Id. at 359.

         The MRI of Plaintiff's lumbar spine showed “mild interval worsening of the disc desiccatory changes most pronounced at the L4-5 and L5-S1 levels.” Id. at 360. There was “no evidence of a focal disc protrusion, disc extrusion, central canal stenosis or neural foraminal narrowing” at the T12-L1 or L1-L2 levels. Id. At the L2-L3 level, Dr. Kirpalani noted mild broad-based disc protrusion and mild joint hypertrophy producing mild bilateral neural foraminal narrowing, but no evidence of central canal stenosis. Id. This “appear[ed] stable in comparison to the prior study.” Id. At the L3-L4 level, there was moderate broad-based disc protrusion and mild bilateral facet joint hypertrophy producing mild central canal stenosis and “mild to moderate bilateral neural foraminal narrowing.” Id. This “appear[ed] worse in comparison to the prior study.” Id. At the L4-L5 level, there was moderate broad-based disc protrusion and mild bilateral facet joint hypertrophy producing mild central canal stenosis at mild to moderate bilateral neural foraminal narrowing. Id. At the L5-S1 level, there was moderate broad-based disc protrusion and mild facet joint hypertrophy with mild to moderate bilateral neural foraminal narrowing, but there was no evidence of central canal stenosis. Id.

         Ultimately, after reviewing Plaintiff's MRI, Dr. Kirpalani concluded that there was “[n]o significant abnormality.” Id. at 361. Dr. Kirpalani concluded that Plaintiff's symptoms were “uncertain and likely not all explained by one etiology.” Id. Dr. Kirpalani concluded that Plaintiff “[c]ertainly [had] severe cervical/lumbar strain and significant myofascial component to pain, ” but there was “no evidence of [right] sided nerve impingement in cervical spine.” Id. Dr. Kirpalani noted that “[c]omplicating matters regards to this patient's pain is the fact that insurance claim is still open, patient is pursuing litigation, and he is on disability.” Id. Plaintiff declined medication, and was referred to physical therapy. Id. at 362.

         d. Kevin Z. Wang, M.D. (Treating Physician)

         Plaintiff saw Dr. Kevin Z. Wang (“Dr. Wang”) for a second opinion on October 12, 2009. Id. at 367-68. Dr. Wang noted that Plaintiff “appear[ed] in moderate distress due to pain” and Plaintiff “[d]escribed spasms in back.” Id. at 370. Plaintiff had 100% normal range of motion upon flexion of his cervical spine with 50% range of motion upon extension, bending, and rotation. Id. Plaintiff's reflexes were normal and Plaintiff had 5/5 muscle strength. Id. at 370-71. Plaintiff's gait was normal, with normal heel and toe walking. Id. at 371.

         Dr. Wang reported the same MRI findings as Dr. Kirpalani. See Id. at 373-74. Dr. Wang found, as Dr. Kirpalani had found, that “although [Plaintiff] ha[d] multiple disc bulges/protrusions throughout spine on MRI, ” there was “no evidence of [right] sided nerve impingement in cervical spine.” Id. at 374. Plaintiff's neurological examination was within normal limits. Id. Dr. Wang noted that Plaintiff expressed “[s]ignificant pain behaviors” and that Plaintiff was “exhibiting early signs of chronic pain and needs to be a[n] integral member of his treatment team to include active strategies for pain management.” Id. Dr. Wang recommended that Plaintiff continue physical therapy and engage in “[a]ppropriate diet and exercise for weight loss.” Id. at 374-75. Dr. Wang “encouraged [Plaintiff] to continue to be physically active and to incorporate daily aerobic activities to routine.” Id. at 375. Dr. Wang also recommended an epidural steroid injection, which Dr. Wang performed on October 20, 2009. Id. at 375; id. at 394-97.

         On November 10, 2009, Plaintiff had a follow up visit with Dr. Wang. Id. at 403. Plaintiff reported to Dr. Wang that the steroid injection “helped 50% with low back pain” and that Plaintiff “had some good days (3 days/week) with his back where he [wa]s able to function with min[imal] pain.” Id. at 403. Plaintiff further reported to Dr. Wang that Plaintiff was going to physical therapy “and working with stretching program which has helped a lot.” Id. Plaintiff told Dr. Wang that “he does not like to take medications.” Id. Plaintiff “continue[d] to complain of diffuse neck and back pain with difficulty with prolong[ed] sitting, ” and Plaintiff stated that he was “sleeping only 4 hours a night because of pain.” Id.

         Dr. Wang's physical examination again showed that Plaintiff had 100% normal range of motion upon flexion, and 50% range of motion upon extension, bending, and rotation, with normal reflexes and 5/5 muscle strength. Id. at 404-05. Plaintiff's gait was normal. Id. at 405. Dr. Wang recommended that Plaintiff continue physical therapy, and that Plaintiff engage in appropriate diet and exercise for weight loss. Id. at 406.

         Plaintiff saw Dr. Wang again on March 17, 2010 and reported that he “continue[d] to have sharp shooting pain radiating from his back to his right low leg around to knee” and that this pain was “very difficult to tolerate.” Id. at 430. Although Plaintiff reported that he was “dealing well with his neck and mid back pain, ” Plaintiff was “not able to deal with the intermittent shooting pains that interfere[d] with his life.” Id. Plaintiff again reported that he did not like to take medications because he worried about side effects. Id.at 430-31. Dr. Wang performed a physical exam and noted that Plaintiff “appear[ed] in mild discomfort, ” but that Plaintiff was “more comfortable since” Plaintiff's last visit. Id. at 431. Plaintiff had 70% normal range of motion upon flexion, and 50% range of motion upon extension, bending and rotation, with normal reflexes and 5/5 muscle strength. Id. at 430-31. Plaintiff's gait was normal. Id. at 431. Dr. Wang again discussed pain management techniques with Plaintiff and advised Plaintiff that Plaintiff would likely have chronic pain for the remainder of his life. Id. Dr. Wang advised Plaintiff that surgery would not help “given MRI findings and clinical presentation, ” and Dr. Wang “advised conservative care with medications and injections as needed.” Id. at 432.

         On April 5, 2010, Plaintiff visited Dr. Wang for another epidural steroid injection. Id. at 437.

         e. Elliot Ryan Carlisle, M.D. (Examining Physician)

         Plaintiff saw Dr. Elliot Ryan Carlisle (“Dr. Carlisle”) on March 17, 2010 for a spinal surgery consultation. Id. at 433. Plaintiff reported to Dr. Carlisle that his low back pain was “4 to 5/10 in severity” with occasional 9/10 or 10/10 severity. Id. at 434. Plaintiff reported that he had “some modest cervical discomfort and modest upper back discomfort, ” but that Plaintiff's primary pain was in his lower back. Id. Dr. Carlisle performed a physical exam and found that Plaintiff had “full motion of his cervical, thoracic, and lumbar spine, but discomfort with extremes of flexion, extension and rotation of his lumbar spine.” Id. Plaintiff had 5/5 motor strength and normal gait. Id.

         An MRI of Plaintiff's spine showed “degenerative disc disease at ¶ 5-6 and C6-7, as well as several levels of thoracic degenerative changes with Schmorl's nodes.” Id. at 435. The lumbar spine showed “the most significant findings of involvement of every disc level with some desiccation in Schmorl's nodes consistent with lumbar Scheurmann's disease, ” or humpback. Id. Dr. Carlisle found “no significant nerve root compromise and no indication for surgery.” Id. Dr. Carlisle told Plaintiff to proceed with “conservative measures and oral medications as indicated, with weight loss and refraining from lifting heavy weights.” Id. Dr. Carlisle “encouraged pool activity, weight loss and exercise.” Id.

         f. Paul Reynolds, MD (Treating Physician)

         Plaintiff saw Dr. Paul Reynolds (“Dr. Reynolds”) on August 16, 2010 for an initial consultation. Id. at 470. Plaintiff identified his “current pain level as 4/10, ” but noted that the pain at its worst is 10/10 but could “be as low as 3/10.” Id. Plaintiff told Dr. Reynolds that he stopped taking medication because it was not helping and made him “a zombie.” Id. at 471. Plaintiff “walk[ed] stiffly, ” but Dr. Reynolds noted that Plaintiff's gait was “neurologically unimpaired.” Id. at 472. Dr. Reynolds reviewed Plaintiff's MRI and noted a “disc protrusion at ¶ 6-7 without evidence of central canal stenosis or neural foraminal narrowing, ” “disc protrusions at the T6-9 levels” with “mild canal stenosis” at the T8-9 level, and worsened L3-4 and L4-5 bilateral foraminal narrowing. Id. at 472. “The narrowing at the L5-S1 level was mild to moderate, without central canal stenosis.” Id. Dr. Reynolds concluded that “this appears to be either a whiplash associated chronic pain problem in evolution, a dynamic disc not fully appreciated, or the result of the syrinx.” Id. Dr. Reynolds stated that “[t]hese conditions would most benefit from slow and progressive independent exercise at a level that will promote healing” and that the facet generated pain “would be best treated with progressive core strengthening and avoidance of further pain related posturing and movement restrictions.” Id. Dr. Reynolds stated that “[t]he main thing is to start moving more normally at all times.” Id.

         Plaintiff saw Dr. Reynolds for follow up appointments on September 2, 2010 and October 21, 2010. Id. at 474, 476. Plaintiff indicated during both visits that his pain at the time of the visit was 4/10, with his average pain level fluctuating between 5/10 and 7/10. See Id. at 474-76. Dr. Reynolds again noted that Plaintiff's gait was “neurologically unimpaired, ” though Plaintiff “moved slow.” AR475.

         On November 1, 2010, Plaintiff saw Dr. Reynolds to review recent MRI results. Id. at 478. The most recent MRI of Plaintiff's cervical spine showed a “2 mm disc bulge at ¶ 5-6 and broad based disc at ¶ 7-7 with eccentricity to the left and indentation of the spinal canal at that level.” Id. at 479. Dr. Reynolds noted that Plaintiff was “stiff with antalgic gait.” Id. Dr. Reynolds stated that he did “not think [Plaintiff] could return to any type [of] work at present, ” though Dr. Reynolds noted that “this is a temporary condition ...


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