United States District Court, S.D. California
REPORT AND RECOMMENDATION FOR ORDER GRANTING
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [ECF NOS. 15,
Barbara L. Major United States Magistrate Judge.
Steven Michael Eldridge brought this action for judicial
review of the Social Security Commissioner's
(“Commissioner”) denial of his claim for
disability insurance benefits. ECF No. 5. Before the Court
are Plaintiff's Motion for Summary Judgment [ECF No. 15-1
(“Pl.'s Mot.”)] and Defendant's
Cross-Motion for Summary Judgment and Opposition to
Plaintiff's Motion for Summary Judgment [ECF Nos. 17-1
and 18-1 (“Def.'s Mot.”)].
Report and Recommendation is submitted to United States
District Judge Janis L. Sammartino pursuant to 28 U.S.C.
§ 636(b) and Civil Local Rule 72.1(c) of the United
States District Court for the Southern District of
California. For the reasons set forth below, this Court
RECOMMENDS that Plaintiff's Motion for
Summary Judgment be GRANTED and
Defendant's Cross-Motion for Summary Judgment be
October 30, 2013, Plaintiff filed a Title II application for
a period of disability and disability insurance benefits, and
a Title XVI application for supplemental security income,
alleging disability beginning on August 31, 2013.
See Administrative Record (“AR”) at
209-221. The claims were denied initially on January 22,
2014, and upon reconsideration on March 13, 2014, resulting
in Plaintiff's request for an administrative hearing.
Id. at 119-22, 127-33, 134-35.
23, 2015, a hearing was held before Administrative Law Judge
(“ALJ”) James S. Carletti. Id. at 42-70.
Plaintiff appeared and was represented by attorney Omar
Ortega, who also appeared in person. Id. at 42, 44.
Plaintiff, vocational expert Mary Jesko, and medical expert
Gerald Weingarten testified at the hearing. Id. at
42-70. In a written decision dated October 23, 2015, ALJ
Carletti determined that Plaintiff had not been under a
disability, as defined in the Social Security Act, from
August 31, 2013 through the date of the ALJ's decision.
Id. at 24, 35. Plaintiff requested review by the
Appeals Council. Id. at 19-20. In an order dated
January 6, 2017, the Appeals Council denied review of the
ALJ's ruling, and the ALJ's decision therefore became
the final decision of the Commissioner. Id. at 1-6.
March 10, 2017, Plaintiff filed the instant action seeking
judicial review by the federal district court. See
ECF No. 1. On May 5, 2017, Plaintiff filed an amended
complaint. ECF No. 5. On February 6, 2018, Plaintiff filed a
motion for summary judgment alleging the ALJ committed legal
error by improperly considering Plaintiff's
testimony. See Pl.'s Mot. Plaintiff asks
the Court to reverse the decision of the Commissioner and
remand for the payment of benefits, or alternatively, to
remand for the correction of the legal errors. Id.
at 10. On March 6, 2018, Defendant timely filed an opposition
to Plaintiff's motion for summary judgment and a
cross-motion for summary judgment asserting that the
ALJ's decision was supported with substantial evidence
and is free of reversible error. See Def.'s Mot.
23, 2015, Plaintiff, represented by counsel, appeared at the
hearing before the ALJ. See AR at 42-70. The ALJ
noted that Plaintiff was alleging disability as of August 31,
2013 “because of joint pain, neck pain, muscle spasms,
depression, asthma, chronic bronchitis and sinus pain.”
Id. at 44. Plaintiff was thirty-nine years old at
the time of the hearing. Id. at 45. During the
hearing, the ALJ questioned Plaintiff regarding his work
experience and alleged disability. Id. at 45-61.
Plaintiff testified that he has an eleventh-grade education,
and that prior to his alleged onset of disability, he had
worked as a prep cook from 1994 until September 30, 2013, and
as a plumber's helper for about one year in 2008. See
id. at 45-46. Plaintiff stated that he stopped working
as a cook because he had severe pain in his hands,
“swelling of joint pain, ” and pain in his knees
and lower back from standing all day. Id. at 46.
asked Plaintiff about the following medical providers: his
primary care doctor; Dr. Navarro; Dr. Soumekh, the
neurosurgeon; and Dr. Jose Lira. Id. at 46-48.
Plaintiff testified that his primary care doctor was Dr.
Taikeun Park who had treated him for about three to four
years. Id. at 46, 57. He also stated that Dr. Park
was no longer his treating doctor because he had been
switched to a different doctor, but that Dr. Park had a good
understanding of his physical condition. Id. at 57.
Plaintiff stated that he had been seeing Dr. [Rosa] Navarro,
his pain management doctor, about once or twice per month for
about six to eight months prior to the hearing. Id.
at 46-47; see also id. at 685. Plaintiff attested
that his condition had gotten worse since he began seeing Dr.
Navarro because he had “an epidural steroid injection
that went wrong” and he had to go to the emergency
room. Id. at 47. Plaintiff stated that he had an
upcoming appointment with neurosurgeon Dr. [Massoud Hertzel]
Soumekh because the pain management for his neck was not
working, and Plaintiff would like to “see what he says
about surgery.” Id. at 47-48; see also
id. at 705. Plaintiff attested that Dr. Jose Lira is his
pulmonary doctor who treats him for “asthma, COPD, and
[his] sleep apnea.” Id. at 48; see also
id. at 710-11. Plaintiff testified that he has not been
able to use his sleep apnea machine because wearing the mask
causes pain in his jaw, neck, and back. Id. at 48.
attested that he lives with his parents, drives a little bit,
but does not do any work around the house. Id. at
48. When he drives, he drives “around the corner to the
pharmacy” to get his prescriptions. Id. at 56.
He takes medications as prescribed and they provide “a
little bit of relief, ” but they also have unwanted
side effects such as sweating and leg pain. Id. at
testified that he has had a neck problem for about two years
that is primarily due to herniated discs, and that he
constantly has a “dull aching kind of sharp pain”
in the neck that varies in intensity. Id. at 50.
Plaintiff stated that sitting makes the pain worse and
standing makes it “start to hurt in the neck between
the shoulders.” Id. at 50-51. “Laying
down, using ice packs, and warm packs” relieves the
pain. Id. at 51. Plaintiff testified that he has had
back pain for the past year as a “dull aching in the
hip area, in the lower back.” Id. He also gets
“a really sharp kind of pain in the middle upper
back” caused by leaning or twisting. Id. On a
scale of one to ten, with ten comparable to “being on
fire, ” Plaintiff described his back pain as a
“nine” about eighty percent of the time.
attested that he has psoriatic rheumatoid arthritis in his
hands and a torn “triangular fibrocartilage” that
hurts “really bad.” Id. at 52. He described
the pain as a “real bad bruising type of pain”
such that he cannot put his hands in his pockets or brush
them against anything or wear a brace. Id. Plaintiff
also stated that he gets “really bad numb and tingling
muscle spasms that cause [his] hands to clinch
uncontrollably.” Id. He stated that he always
has the pain “mildly, ” but that at times it gets
severe and locks up like a muscle cramp. Id. at 53.
Plaintiff stated that the psoriatic arthritis also affects
his hip, knees, and feet. Id. In response to the
ALJ, Plaintiff stated that he does not have psoriasis, but
that the rheumatologist told him that he has psoriatic
stated that his high blood pressure gives him chest pains and
dizziness, and that carpel tunnel in both of his hands causes
numbness. Id. at 54. Plaintiff further stated that
he checks his blood pressure regularly and that it is usually
around 180 over 100, or 160 to 180 over 100 to 110.
Id. He attested that on a typical day, he lays down
for about ten hours of the day and watches television.
Id. He stated that he makes his own breakfast by
microwaving or toasting “easy stuff.”
Id. Plaintiff stated that his mother has a maid that
comes to clean his room, and he does not do grocery shopping
or household chores. Id. at 55-56. Plaintiff
testified that he has “really bad neck pain and back
pain” that prevents him from doing any kind of long
distance traveling or going to the theater to watch a movie.
Id. at 57. He also attested that he “used to
go fishing in a boat and everything all the time, ” but
that he can no longer do that “because of [his]
hands” and because he “get[s] dizzy a lot and
it's really dangerous.” Id.
testified that there was an error in his medical records
regarding a cervical fusion; he stated that he did not have a
cervical fusion. Id. at 58. Plaintiff further
attested that his medical records indicate that he had a
fractured neck in 2011 but he does not remember
that.Id. at 59.
Weingarten, the medical expert, testified by telephone.
Id. at 44. He asked Plaintiff which medications he
was presently taking. Id. at 59. Plaintiff responded
that he was taking chlorthalidone and amlodipine for his high
blood pressure, Tylenol 3 with codeine (twice a day),
albuterol inhaler, pomercort inhaler, naproxen 500 mgs,
Claritin, and flucasone. Id. at 60. Dr. Weingarten
stated that he had reviewed Plaintiff's evidence of
record exhibits 1F through 28F. Id. at 59. He stated
that based on his review, Plaintiff has a history of
hypertension, asthma, neck pain, low back pain,
“questionable psoriatic arthritis, ” a
work-related injury to his left hand that was diagnosed as a
sprain, a tear in the cartilage of his left wrist, and a
diagnosis of De Quervain's tenosynovitis of his left
wrist by an orthopedic doctor in exhibit 12F. Id. at
61; see also id. at 586 (exhibit 12F). Dr.
Weingarten attested that the psoriatic arthritis is
questionable because there is no documentation of it and
Plaintiff stated that he never had a rash. Id.
However, when Plaintiff's attorney asked whether
Plaintiff's complaints of swelling of the joints and
problems with his hands could typically be found in
individuals who suffer from psoriatic arthritis, Dr.
Weingarten answered “yes.” Id. at 63.
Dr. Weingarten also stated that there is no documentation
that Plaintiff's blood pressure runs 180 over 100 all the
time. Id. at 62. He stated that Plaintiff had a
neurosurgical consultation regarding his neck in exhibit 22F,
some small herniated discs, and a cervical epidural, but that
it “doesn't sound like the neurosurgeon was that
interested in doing surgery.” Id. at 62. He
stated that regarding Plaintiff's lower back, the MRI
showed “a couple of minor little disc bulges.”
Id. He stated that he does not understand why
Plaintiff would report pain at the level of nine out of ten,
eighty percent of the time because “[t]hat's a lot
of pain” and “[t]hat doesn't make sense . . .
that he would have that either.” Id. He
further stated that Plaintiff has had a diagnosis of
“fibromyalgia, neuralgia as far as his neck goes”
and that he “guess[es] [Plaintiff is] telling us his
pain level is like not compatible with some of the findings
in the medical records.” Id.
Weingarten testified that Plaintiff would have the following
[C]an occasionally lift/carry 20 pounds, frequently
lift/carry 10 pounds. Stand/walk six hours in an eight-hour
workday. Sit six hours in an eight-hour workday. Push/pull
otherwise unlimited. As far as postural limitations climbing
ladders, ropes scaffolding occasionally. No other postural
limitations. Manipulative limitations, he would have some
like gross difficulty with his left wrist because of chronic
pain in his left wrist. So he might be restricted to lifting
less with his left hand only. As far as environmental
limitation, because he's taking the narcotics, he should
avoid exposure to hazardous machinery and heights.
Id. at 63.
expert Mary Jesko testified. Id. at 65-69. The ALJ
presented the hypothetical of a younger individual with less
than a high school education and prior work activity Ms.
Jesko had indicated as “medium and heavy and unskilled,
semi-skilled with non-transferability of skills to sedentary
or light positions, ” with limitations of occasional
exposure to scaffolding, no exposure to hazardous machinery
or heights, a reduction of “10/10” in
lifting/carrying with the left upper extremity because of the
left wrist, and the dominant hand is the right hand.
Id. at 66-67. Ms. Jesko stated that examples of jobs
that fit that hypothetical would be rental clerk, ticket
seller, and order clerk. Id. at 67-68. She attested
that if such a person missed work more than twice a month
without a medical excuse, that person would not be able to
keep the job; and if this person missed work three or more
times a month even with a valid medical excuse, that person
would not be able to keep the job. Id. at 68.
second hypothetical, the ALJ referenced the limitations
contained in exhibit 10F, an impairment questionnaire
completed by Dr. Taikeun Park on April 23, 2014. Id.
at 68; see also id. at 572-76 (exhibit 10F). Ms.
Jesko opined that if Plaintiff could only be in a seated
position for less than an hour and stand/walk for about
twenty to thirty minutes in an eight-hour work day, then
Plaintiff could not sustain full-time work. Id. at
68. When asked to confirm that there would be no positions
available “if the person could never or rarely grip,
grasp, grip, turn or twist objects with either hand or use
fingers or hands for fine manipulation or use arms for
reaching overhead bilaterally, ” Ms. Jesko stated that
was correct. Id.
end of the hearing, Plaintiff's attorney added the
following comments to the ALJ: “I believe that the
testimony from the claimant today regarding his limitations
as well as the pain that he experiences is consistent with
the treating doctor report in 10F, and we ask that you give
controlling weight to 10F and the resulting opinion from the
vocational expert when considering Exhibit 10F.”
Id. at 69.
October 23, 2015, the ALJ issued a written decision in which
he determined that Plaintiff was not disabled as defined in
the Social Security Act. AR at 24-41. The ALJ applied the
five-step sequential evaluation process established by the
Social Security Administration for determining whether an
individual is disabled and initially found that Plaintiff had
not engaged in substantial gainful activity since August 31,
2013, the alleged onset date. Id. at 25-26. He then
considered all of Plaintiff's medical impairments and
determined that the following impairments were
“severe” as defined in the Code of Federal
Regulations: “asthma, cervicalgia, and left wrist
synovitis (20 CFR 404.1520(c) and 416.920(c)).”
Id. The ALJ determined that Plaintiff's
“medically determinable impairments of hypertension,
hyperlipidemia, obstructive sleep apnea, hepatic and
psoriasis with arthropathy, considered singly and in
combination, do not cause more than minimal limitation in the
claimant's ability to perform basic work activities are
therefore nonsevere.” Id. at 26. At step
three, the ALJ found that Plaintiff's medically
determinable impairments or combination of impairments did
not meet or medically equal the Regulation's listed
impairments. Id. at 28-29.
determine at step four whether Plaintiff could return to his
past work, the ALJ performed a residual functional capacity
(“RFC”) analysis. See id. at 29-33. The
ALJ stated that “[a]fter careful consideration of the
entire record, ” he found that Plaintiff has the RFC to
perform light work, “except the claimant can have
occasional exposure to scaffolding; reduction to lifting and
carrying 10 pounds occasionally and 10 pounds frequently
using the upper extremity because of the left wrist; and no
exposure to hazardous machinery or unprotected
heights.” Id. at 29. In reaching this
decision, the ALJ found the RFC assessment to be supported by
the evidence as a whole and that Plaintiff's
“subjective complaints are less than fully credible and
the objective medical evidence does not support the alleged
severity of symptoms.” Id. at 33. Having
completed the RFC findings, the ALJ determined that Plaintiff
could not perform his past relevant work as a prep cook or a
construction assistant. Id. However, the ALJ
determined that Plaintiff could make a “successful
adjustment to other work that exists in significant numbers
in the national economy, ” such as rental clerk, ticket
seller, or order clerk. Id. at 34-35. The ALJ
therefore found that Plaintiff was not disabled. Id.
STANDARD OF REVIEW
405(g) of the Social Security Act permits unsuccessful
applicants to seek judicial review of the Commissioner's
final decision. 42 U.S.C. § 405(g). The scope of
judicial review is limited in that a denial of benefits will
not be disturbed if it is supported by substantial evidence
and contains no legal error. Id.; see also
Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017)
(citing Benton ex rel. Benton v. Barnhart, 331 F.3d
1030, 1035 (9th Cir. 2003)).
evidence is “more than a mere scintilla, but may be
less than a preponderance.” Lewis v. Apfel,
236 F.3d 503, 509 (9th Cir. 2001) (citation omitted). It is
“relevant evidence that, considering the entire record,
a reasonable person might accept as adequate to support a
conclusion.” Id. (citation omitted); see
also Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006,
1011 (9th Cir. 2003). “In determining whether the
[ALJ's] findings are supported by substantial evidence,
[the court] must review the administrative record as a whole,
weighing both the evidence that supports and the evidence
that detracts from the [ALJ's] conclusion.”
Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998)
(citations omitted). Where the evidence can reasonably be
construed to support more than one rational interpretation,
the court must uphold the ALJ's decision.
Trevizo, 871 F.3d at 674-75 (citing Orn v.
Astrue, 495 F.3d 625, 630 (9th Cir. 2007)). This
includes deferring to the ALJ's credibility
determinations and resolutions of evidentiary conflicts.
See Lewis, 236 F.3d at 509. “We review only
the reasons provided by the ALJ in the disability
determination and may not affirm the ALJ on a ground upon
which he did not rely.” Garrison v. Colvin,
759 F.3d 995, 1010 (9th Cir. 2014).
405(g) permits a court to enter judgment affirming,
modifying, or reversing the Commissioner's decision. 42
U.S.C. § 405(g). The reviewing court may also remand the
matter to the ...