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Eldridge v. Berryhill

United States District Court, S.D. California

May 23, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Hon. Barbara L. Major United States Magistrate Judge.

         Plaintiff 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[1] (“Def.'s Mot.”)].

         This 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 DENIED.


         On 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.

         On July 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.[2] 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.

         On 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.[3] 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.


         On July 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.

         The ALJ 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.

         Plaintiff 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 48-49.

         Plaintiff 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. Id.

         Plaintiff attested that he has psoriatic rheumatoid arthritis in his hands and a torn “triangular fibrocartilage” that hurts “really bad.”[4] 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 arthritis. Id.

         Plaintiff 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.

         Plaintiff testified that there was an error in his medical records regarding a cervical fusion; he stated that he did not have a cervical fusion.[5] 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.[6]Id. at 59.

         Dr. 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.[7] 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.

         Dr. Weingarten testified that Plaintiff would have the following functional limitations:

[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.

         Vocational 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.

         In the 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.

         At the 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.


         On 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.

         To 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.


         Section 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)).

         Substantial 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).

         Section 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 ...

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