United States District Court, N.D. California, San Jose Division
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT AND GRANTING COMMISSIONER'S CROSS-MOTION FOR
SUMMARY JUDGMENT Re: Dkt. Nos. 20,, 23
H. KOH, United States District Judge
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.
Plaintiff's Age and Educational, Vocational, and Medical
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.
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.
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
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.
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”).
Standard of Review
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.
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).
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.
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
Court first summarizes the relevant record evidence and the
ALJ's written opinion. The Court then discusses each of
Relevant Record Evidence
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.
Medical Evidence Regarding Plaintiff's Physical
Thomas Johnson, M.D. (Treating Physician)
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
Kelli Andrea Johnson, M.D. (Treating Physician)
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.
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.
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
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
[Plaintiff] up for potential life-long disability.”
24, 2010, Plaintiff saw Dr. Johnson for a possible sexually
transmitted disease after Plaintiff “started having
intercourse with his girlfriend again.” Id. at
Dhiruj Ram Kirpalani, M.D. (Examining Physician)
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.
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.
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.
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
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.
Kevin Z. Wang, M.D. (Treating Physician)
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.
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.
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.”
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.
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
April 5, 2010, Plaintiff visited Dr. Wang for another
epidural steroid injection. Id. at 437.
Elliot Ryan Carlisle, M.D. (Examining Physician)
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
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
Paul Reynolds, MD (Treating Physician)
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.
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.
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 ...