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Cox v. Berryhill

United States District Court, C.D. California

May 22, 2018

ROBERT A. COX, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, 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 application for Social Security disability insurance benefits (“DIB”). The parties consented to the jurisdiction of the undersigned under 28 U.S.C. § 636(c). The matter is before the Court on the parties' Joint Stipulation, filed December 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 1966. (Administrative Record (“AR”) 104.) He completed high school (AR 328) and last worked as a photojournalist (AR 128, 318).

         On June 3, 2013, Plaintiff filed an application for DIB, alleging that he had been disabled since July 26, 2012, because of high blood pressure, bulging disc injury, angina, heart disease, and high cholesterol.[1] (AR 154-55, 166-67, 284-91.) After his application was denied initially and on reconsideration, he requested a hearing before an Administrative Law Judge. (AR 183, 194, 198.) A hearing was held on May 7, 2015, at which Plaintiff, who was represented by counsel, testified, as did a medical and a vocational expert. (AR 102-33.) In a written decision issued May 28, 2015, the ALJ found Plaintiff not disabled through the date last insured, December 31, 2013.[2] (AR 57-76.) Plaintiff requested review and submitted additional medical evidence to the Appeals Council. (See AR 401-03; see also AR 866-973.) On January 18, 2017, it denied review, finding that the additional evidence did not provide a basis for changing the ALJ's decision, and ordered that the new evidence be made part of the administrative record. (AR 1-6.) 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 sequential evaluation process to assess whether a claimant is disabled. 20 C.F.R. § 404.1520(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).

         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).

         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).

         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). 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); Drouin, 966 F.2d at 1257. That determination comprises the fifth and final step in the sequential analysis. § 404.1520(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 between July 26, 2012, the alleged onset date, and December 31, 2013, his date last insured. (AR 60.) At step two, he concluded that Plaintiff had the following severe impairments: “coronary artery disease post bypass procedure in 2007, cervical spine degenerative disc disease with radiculopathy, lumbar spine degenerative disc disease, and major depression disorder.” (Id.) At step three, he determined that his impairments did not meet or equal a Listing. (AR 60-61.)

         At step four, the ALJ found that Plaintiff had the RFC to perform modified sedentary work:

[He] can lift and/or carry 10 pounds occasionally and less than 10 pounds frequently; he can stand and/or walk for 2 hours out of an 8-hour workday with regular breaks; he can sit for 6 hours out of an 8-hour workday with regular breaks; he can occasionally balance, stoop, kneel, crouch, and crawl; he cannot climb ladders, ropes, or scaffolds; he cannot walk uphill; he can frequently reach overhead with the bilateral upper extremity; he can frequently handle and finger with the left (dominant) upper extremity; he can frequently perform fine and gross manipulation with the left (dominant) upper extremity; he should avoid concentrated exposure to excessive heat and cold; he should avoid concentrated exposure to dangerous, moving machinery; he cannot perform jobs requiring him to turn his neck and look behind; he is limited to simple tasks; and he cannot perform stressful jobs, such as taking complaints.

(AR 61-62.)

         Based on the VE's testimony, the ALJ found that Plaintiff could not perform his past relevant work. (AR 68.) At step five, the ALJ concluded that given Plaintiff's age, education, work experience, and RFC, he could perform two representative jobs in the national economy. (AR 69.) Thus, he found him not disabled. (AR 69-70.)

         V. DISCUSSION

         Plaintiff argues that the ALJ erroneously discounted his subjective symptom testimony and the opinions of treating physicians Wei Wah Kwok, Navid Geula, and Jose Caceres.[4] (J. Stip. at 5-17, 26-31, 37-38.) As discussed below, remand is not warranted.

         A. The ALJ Properly Evaluated Plaintiff's Subjective Symptom Testimony

         The ALJ found Plaintiff's testimony “not entirely credible.” (AR 63.) Plaintiff argues that the ALJ's “three rationales” for doing so - its inconsistency with his daily activities, his conservative treatment, and his failure to follow prescribed treatment - were insufficient. (J. Stip. at 29.) But Plaintiff is mistaken that reversal is warranted. The ALJ's reliance on his admitted daily activities and demonstrated conservative treatment was proper; and Plaintiff hasn't challenged the ALJ's further finding that his subjective symptom statements were unsupported by the objective medical evidence. (AR 63.) As discussed below, those reasons were clear and convincing and supported by substantial evidence. Remand is therefore unwarranted on this ground.

         1. Applicable law

         An ALJ's assessment 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). 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 assessment of the claimant's subjective symptom statements 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

         a. Dr. Caceres

         Shortly before the relevant period, on April 26, 2012, Plaintiff underwent his third stress echocardiogram with Dr. Caceres, his cardiologist.[6] (AR 514-15; see also AR 525 (Oct. 2010: stress echocardiogram with Dr. Caceres), 521 (Oct. 2011: same).) Plaintiff exercised for nearly 11 minutes until fatigue, shortness of breath, and chest pain and achieved a maximum heart rate of 170, or “97% of [his] predicted maximal heart rate.” (AR 514-15; see also AR 525 (Oct. 2010: exercised for 10 minutes and reached “170 bpm, ” or “96%” of maximum heart rate), 521 (Oct. 2011: exercised for 12 minutes and reached “164 bpm, ” or “93%” of maximum heart rate).) He had “good exercise tolerance for [his] age” and “normal blood pressure and heart rate responses to stress.” (AR 515.) “Echo images” during testing indicated that he had “new regional wall motion abnormalities” in his heart, including hypokinesis and dyskinesis of his anterior and lateral walls.[7] (Id.; see also AR 525 (Oct. 2010: similar findings), 521 (Oct. 2011: similar findings).) Dr. Caceres reviewed the results with Plaintiff in May 2012, educated him on diet, weight control, cholesterol, exercise, and smoking, and prescribed medication. (AR 485-86.)

         After July 26, 2012, the beginning of the relevant period, Plaintiff complained of fatigue and palpitations associated with chest pain. (See AR 483-84 (Oct. 2012), 481-82 (Dec. 2012), 479- 80 (Jan. 2013).) On January 23, 2013, Dr. Caceres performed a left-heart catheterization and selective coronary arteriography “to guide further therapy.”[8] (AR 856-58.) He found a “normal” ejection fraction of “62 percent”[9] and diagnosed Plaintiff with “[r]ecurrent” angina pectoris, [10] myocardial ischemia, coronary-artery disease, ischemic cardiomyopathy, [11] and hypertensive heart disease. (AR 856, 858.) Dr. Caceres recommended only that Plaintiff, who was a “heavy cigarette smok[er]” (AR 857), “quit smoking, ” “optimize his medical therapy, ” and “have enhanced external counterpulsation therapy”[12] (AR 858).

         Plaintiff continued to complain of chest pain in 2013. (See AR 477-78 (Feb. 2013), 453-54 (Apr. 2013), 472-73 (July 2013).) In March of that year, an echocardiogram revealed a 73 percent ejection fraction and other normal results, along with “trace” mitral and tricuspid regurgitation.[13] (AR 457-58.) In July, Plaintiff reported smoking 10 cigarettes a day (AR 472), and Dr. Caceres, on his treatment report, checked boxes under “p[atient] e[ducation]” for diet, weight control, cholesterol, exercise, smoking, and medication (AR 473), apparently having discussed those issues with Plaintiff.

         In February 2014, after Plaintiff's date last insured, Dr. Caceres completed a “cardiac impairment questionnaire.” (AR 759-64.) He assessed Plaintiff with NYHA Class III heart failure[14](AR 759) and noted that his chest pain, fatigue, shortness of breath, and palpitations were caused by emotional stress and physical exertion (AR 761). He opined that Plaintiff could sit, stand, or walk for only one hour in an eight-hour workday (AR 761) and lift and carry only up to 10 pounds occasionally (AR 761-62). He would likely be absent from work more than three times a month, and his concentration and attention would be frequently interrupted by his symptoms. (AR 762.) He was incapable of even low-stress jobs (id.) and needed to avoid temperature extremes, heights, and pushing and pulling (AR 763).

         Throughout the rest of 2014, Plaintiff saw Dr. Caceres six times, complaining at each appointment of recurring chest pain, palpitations, and shortness of breath. (See AR 663-65 (July 2014), 659-62 (Aug. 2014), 655-58 (Sept. 2014), 651-54 (Oct. 2014), 647-50 (Nov. 2014), 686-89 (Dec. 2014).) His angina, he reported, “usually occur[ed] when walking 1-2 level blocks and/or climbing 1 flight of stairs at a normal pace under normal conditions.” (AR 663, 659, 655, 651, 647, 686.) On examination, Plaintiff's condition was normal: he had “normal” breath sounds, “[r]egular” heart sounds, “[n]ormal” muscle tone and strength, and “[n]ormal” walking and coordination, among other things, and Dr. Caceres consistently “[e]ncouraged [Plaintiff] to stop smoking.” (AR 664-65, 660-61, 656-57, 652-53, 648-49, 687-88.)

         Such findings continued into 2015. (See AR 682-85 (Jan. 2015), 675-77 (Feb. 2015).) A January 2015 echocardiogram revealed normal results, including an ejection fraction of 55 percent, but Plaintiff continued to demonstrate “trace” mitral and tricuspid regurgitation. (AR 680-81.) In a stress echocardiogram that same month - more than a year after his date last insured - Plaintiff exercised for eight minutes until fatigue and shortness of breath (but not chest pain) and reached a heart rate of 133, or “77% of [his] predicted maximal heart rate.” (AR 678-79.) He had “very good” exercise tolerance for his age and “normal” blood-pressure and heart-rate responses to stress. (AR 679.) “Echo images” during testing revealed “new regional wall motion abnormalities, ” including hypokinesis of his septal and inferior walls and dyskinesis of his septal, lateral, and inferior walls, “suggestive of ischemia.” (Id.)

         In February 2015, Dr. Caceres noted that Plaintiff “continue[d] smoking despite patient education and multiple trials for him to discontinue smoking.” (AR 693; see also AR 692 (patient still “smoking heavily”).) An x-ray of Plaintiff's chest revealed “[n]o evidence of acute cardiopulmonary disease.” (AR 646.) And a left-catheterization and coronary-arteriography procedure that month indicated coronary-artery disease but “open” grafts and a 65 percent ejection fraction. (AR 645, 691-93.) Based on those findings, Dr. Caceres recommended medical therapy and enhanced external counterpulsation. (AR 693.) Plaintiff, he found, was “not amenable” to further coronary-artery-bypass graft surgery or percutaneous coronary intervention based in part on his “open” veins and grafts and his failure to stop smoking. (Id.)

         b. Drs. Geula and Kwok

         Dr. Geula, an osteopathic physician, apparently began treating Plaintiff in 2010. (See AR 765.) His earliest treatment notes of record, however, are from September 2012. (See AR 427-29.) At that time, Plaintiff complained of “left shoulder pain with occ[asional] numbness and tingling, ” which had been ongoing for years but “recently bec[a]me worse.” (AR 427.) On examination his left shoulder demonstrated “normal” movement, but his left acromioclavicular joint showed tenderness on palpation. (AR 428.) An x-ray of his left shoulder a few days later was “unremarkable.” (AR 445.) But a left-shoulder MRI in December 2012 revealed Type II lateral acromion[15] and “[m]ild” supraspinatus tendinopathy. (AR 443-44.) In January 2013, based on the MRI findings, Dr. Geula referred Plaintiff to orthopedics (AR 418-19), which apparently recommended a “neuro and pain [management] eval[uation]” (AR 415 (Mar. 2013)). Throughout 2013, Plaintiff complained of neck and back pain. (AR 412-14 (May 2013), 532-34 (July 2013), 529-31 (Aug. 2013), 589-91 (Nov. 2013).) And Dr. Geula started him on narcotic pain medication, specifically, hydrocodone-acetaminophen and “Tylenol #3”[16] (AR 532-34 (July 2013), 529-31 (Aug. 2013), 589-91 (Nov. 2013)), though his pain “[wasn't] being resolved” with the Tylenol (AR 532; see also AR 412 (“Taking tylenol without good relief.”)).

         In February 2014, after the relevant period, Dr. Geula completed an impairment questionnaire. (AR 765-69.) He indicated that Plaintiff's primary symptoms were “daily” neck and back pain. (AR 766.) He found that Plaintiff could sit two hours in an eight-hour workday, for no longer than “15-30 mi[nutes]” at a time, and could return to a seated position after “5-10 mi[nutes]” of moving around. (AR 767.) He could also stand or walk for one hour in an eight-hour workday. (Id.) He could lift five pounds frequently and up to 20 pounds occasionally and could carry five pounds frequently and up to 10 pounds occasionally. (Id.) He had “significant limitations” reaching, handling, and fingering. (AR 768.) With his left arm and hand he could grasp, turn, and twist objects, do fine manipulations, and reach “occasionally”; with his right, he could do the same but “frequently.” (Id.) His symptoms would “occasionally” interfere with his attention and concentration and cause him to be absent from work more than three times a month. (AR 768-69.) When asked how “far back” his assessed limitations applied, Dr. Geula said July 26, 2012, “according to Plaintiff, ” the same date that Plaintiff had become eligible for benefits given the prior denial. (AR 769.)

         In April 2013, Plaintiff was seen by a neurological surgeon for left-shoulder and chest pain. (AR 408-10.) On examination, Plaintiff's left shoulder demonstrated “some tenderness, ” but his left arm had “very good passive range of motion.” (AR 409.) Although lateral rotation of his neck was “moderate[ly] decrease[d], ” neck extension was “only mild[ly] decrease[d]” and he was otherwise “normal.” (Id.) All of his major muscles in all extremities showed “5/5” strength. (Id.) A February 2013 MRI of Plaintiff's cervical spine was reviewed. (Id.) It revealed “moderate left neural foraminal narrowing” caused by a disc herniation, some “mild disc space narrowing, ” “disc degeneration, ” and a “disc bulge.” (AR 441-42.) The surgeon found that some of Plaintiff's reported symptoms were “not typical of cervical radiculopathy, ” recommended “conservative[]” treatment, and suggested that he try an “epidural injection to see if it help[ed].” (AR 409-10.)

         Plaintiff received another neurological consultation in May 2013. (AR 446-49.) On examination, he demonstrated full range of motion in his neck, with “slight discomfort to rotation, ” “mild” tenderness and spasm to palpation in his right-upper trapezius, full range of motion and normal strength in each of his extremities, and a “[n]ormal” back. (AR 447-48.) After reviewing his February 2013 cervical-spine MRI, the neurologist noted the “gross abs[]ence of neurological motor or sensor[y] impairment” and recommended a nerve-conduction study “to further determine left-arm neuropathy.” (AR 448.) An EMG study was not conducted until ...


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