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Ramos v. Berryhill

United States District Court, C.D. California

May 3, 2018

PABLO RAMOS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.

          MEMORANDUM DECISION AND ORDER AFFIRMING COMMISSIONER

          JEAN ROSENBLUTH U.S. Magistrate Judge

         I. PROCEEDINGS

         Plaintiff seeks review of the Commissioner's final decision denying his applications for Social Security disability insurance benefits (“DIB”) and supplemental security income benefits (“SSI”). The parties consented to the jurisdiction of the undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). The matter is before the Court on the parties' Joint Stipulation, filed November 6, 2017, which the Court has taken under submission without oral argument. For the reasons stated below, the Commissioner's decision is affirmed.

         II. BACKGROUND

         Plaintiff was born in 1962. (Administrative Record (“AR”) 145, 158, 437, 445.) He completed sixth grade (AR 45, 103, 471, 544) and worked assembling campers for trucks (AR 103, 472).

         On May 15, 2012, Plaintiff applied for DIB and SSI, alleging that he had been unable to work since December 21, 2006, because of degenerative disc disease; carpal tunnel; nerve radiculopathy; morbid obesity; headaches on the “[r]ight [s]ide of [his] face and head”; right-leg “pain, stiffness, lock[ing], numbness, tingling, [and] weak[ness]”; right-arm “pain” and “weakness”; “pain” and “stiffness of the neck and back”; tailbone “pain” and an inability to “sit, bend, [or] stand”; shoulder “pain”; depression; anxiety; and fatigue.[2] (AR 145-46, 158-59, 437-452.) After his applications were denied initially and on reconsideration (see AR 171-72, 202-03, 279-83, 286-91), he requested a hearing before an Administrative Law Judge (AR 293-94). Hearings were held on December 27, 2013, and December 30, 2014, at which Plaintiff, who was represented by counsel, testified, as did a vocational expert. (AR 67-127, 278.) In a written decision issued January 22, 2015, the ALJ found Plaintiff not disabled. (AR 18-33.) Plaintiff sought Appeals Council review (AR 9), which was denied on June 20, 2016 (AR 1-5). This action followed.

         III. STANDARD OF REVIEW

         Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The ALJ's findings and decision should be upheld if they are free of legal error and supported by substantial evidence based on the record as a whole. See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such evidence as a reasonable person might accept as adequate to support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla but less than a preponderance. Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether substantial evidence supports a finding, the reviewing court “must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). “If the evidence can reasonably support either affirming or reversing, ” the reviewing court “may not substitute its judgment” for the Commissioner's. Id. at 720-21.

         IV. THE EVALUATION OF DISABILITY

         People are “disabled” for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or has lasted, or is expected to last, for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

         A. The Five-Step Evaluation Process

         The ALJ follows a five-step evaluation process to assess whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim must be denied. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).

         If the claimant is not engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a “severe” impairment or combination of impairments significantly limiting his ability to do basic work activities; if not, the claimant is not disabled and his claim must be denied. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).

         If the claimant has a “severe” impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments set forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, disability is conclusively presumed. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).

         If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient residual functional capacity (“RFC”)[3] to perform his past work; if so, he is not disabled and the claim must be denied. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). The claimant has the burden of proving he is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets that burden, a prima facie case of disability is established. Id. If that happens or if the claimant has no past relevant work, the Commissioner then bears the burden of establishing that the claimant is not disabled because he can perform other substantial gainful work available in the national economy. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Drouin, 966 F.2d at 1257. That determination comprises the fifth and final step in the sequential analysis. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257.

         B. The ALJ's Application of the Five-Step Process

         At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since December 21, 2006, the alleged onset date. (AR 20.) At step two, he concluded that Plaintiff had severe impairments of “degenerative disc disease; osteoarthrosis; history of right shoulder injury; and obesity.” (AR 21.) At step three, he determined that Plaintiff's impairments did not meet or equal a listing. (AR 22.) At step four, the ALJ found that Plaintiff had the RFC to perform light work except that “he can occasionally perform postural activities; he cannot do above-shoulder reaching or work on the right; cannot have concentrated exposure to extreme cold, vibrations, or hazards; and is prophylactically limited to unskilled work secondary to pain.” (AR 23.) Based on the VE's testimony, the ALJ concluded that Plaintiff was unable to perform his past relevant work. (AR 27.) At step five, the ALJ found that given Plaintiff's age, education, work experience, and RFC, he could perform three “representative” jobs in the national economy: “[s]ewing machine operator, ” DOT 786.682-026, 1991 WL 681012; “[s]hoe packer, ” DOT 920.687-166, 1991 WL 688001; and “[h]and bander, ” DOT 920.687-026, 1991 WL 687967. (AR 27-28.) Thus, the ALJ found Plaintiff not disabled. (AR 28-29.)

         V. DISCUSSION

         Plaintiff argues that the ALJ erred in considering his combination of impairments (J. Stip. at 4-11), discounting his credibility (id. at 16-19), determining his RFC (id. at 23-26), and finding that he could perform other substantial gainful work available in the national economy (id. at 29-31). As discussed below, the ALJ did not err on any of these grounds. Accordingly, remand is not warranted.[4]

         A. The ALJ Properly Discounted Plaintiff's Credibility

         Plaintiff argues that the ALJ erred in rejecting his subjective symptom testimony. (Id. at 16-19.) The ALJ provided several sufficient reasons for doing so, however: Plaintiff's allegations were “inconsistent with the objective medical evidence and the record as a whole, ” he “admitted typical activities of daily living, ” and his treatment “ha[d] been generally conservative in nature.” (AR 24.) Thus, remand is not warranted on this ground.

         1. Applicable law

         An ALJ's assessment of the credibility of a claimant's allegations concerning the severity of his symptoms is entitled to “great weight.” See Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989) (as amended); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985) (as amended Feb. 24, 1986). “[T]he ALJ is not ‘required to believe every allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).'” Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).

         In evaluating a claimant's subjective symptom testimony, the ALJ engages in a two-step analysis. See Lingenfelter, 504 F.3d at 1035-36; see also SSR 96-7p, 1996 WL 374186 (July 2, 1996).[5]“First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment [that] could reasonably be expected to produce the pain or other symptoms alleged.” Lingenfelter, 504 F.3d at 1036. If such objective medical evidence exists, the ALJ may not reject a claimant's testimony “simply because there is no showing that the impairment can reasonably produce the degree of symptom alleged.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) (emphasis in original).

         If the claimant meets the first test, the ALJ may discredit the claimant's subjective symptom testimony only if he makes specific findings that support the conclusion. See Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). Absent a finding or affirmative evidence of malingering, the ALJ must provide “clear and convincing” reasons for rejecting the claimant's testimony. Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (as amended); Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014). In assessing credibility, the ALJ may consider, among other factors, (1) ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; (3) the claimant's daily activities; (4) the claimant's work record; and (5) testimony from physicians and third parties. Rounds v. Comm'r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (as amended); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). If the ALJ's credibility finding is supported by substantial evidence in the record, the reviewing court “may not engage in second-guessing.” Thomas, 278 F.3d at 959.

         2. Relevant background[6]

         Plaintiff first saw family practitioner Stanley H. Schwartz in February 2012. (AR 570-75.) He complained of indigestion, decreased libido, erectile dysfunction, joint swelling, back pain, headaches, numbness, tingling, and weight change. (AR 570-71.) Plaintiff reported “walking” for “[e]xercise” “7” times a week. (AR 574.) Dr. Schwartz observed that he had “normal[, ] full range of motion of all joints, ” “normal muscle strength and tone, ” and “no deformity or scoliosis” in the thoracic or lumbar spine. (AR 572.) He ordered a CT scan of Plaintiff's brain and referred him to a neurologist. (AR 573-74.) The CT scan, which was conducted in March 2012, found “[a]tlantoaxial subluxation with narrowing of the spinal canal at the craniocervical junction” and “[m]ild flattening of the spinal cord, ” but the imaging was “otherwise normal.” (AR 579-80.)

         Plaintiff complained of headaches to Dr. Schwartz in October 2012 but “[d]enie[d] difficulty with concentration, ” “numbness, ” an “inability to speak, ” “falling down, ” “tingling, ” “visual disturbances, ” “weakness, ” “excessive daytime sleeping, ” or “memory loss.” (AR 587.) In April 2013, Plaintiff reported “skin discoloration, swe[l]ling, and burning in [his] legs”; Dr. Schwartz diagnosed peripheral neuropathy in his feet and prescribed gabapentin.[7] (AR 609, 611-12.) He also assessed Plaintiff's back pain as “[i]mproved” and observed “no deformity or scoliosis” in his “thoracic or lumbar spine.” (AR 610-11.) In August 2013, Plaintiff was diagnosed with diabetes. (AR 616-17.) In September and early November 2013, Dr. Schwartz observed that Plaintiff's symptoms were essentially “unchanged.” (AR 628-31, 636-39.) In late November, Plaintiff complained of “constant and stabbing” “pain in ...


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