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Aiken v. Berryhill

United States District Court, S.D. California

June 21, 2019

HAL JAMES HLAVA, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION RE CROSS-MOTIONS FOR SUMMARY JUDGMENT [ECF NOS. 19, 25]

          Honorable Linda Lopez United States Magistrate Judge

         Plaintiff Hal James Hlava brought this action for judicial review of the Social Security Commissioner's (“Commissioner”) denial of his claim for disability insurance benefits. ECF No. 1. Before the Court are Plaintiff's Motion for Summary Judgment [ECF No. 19 (“Pl.'s Mot.”)], Defendant's Cross-Motion for Summary Judgment and Opposition to Plaintiff's Motion [ECF No. 25 (“Def.'s Mot.”)], [1] and Plaintiff's Reply in support of Motion for Summary Judgment [ECF No. 26 (“Pl.'s Reply”)].

         This Report and Recommendation is submitted to United States District Judge William Q. Hayes 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 DENIED and Defendant's Cross-Motion for Summary Judgment be GRANTED.

         PROCEDURAL BACKGROUND

         On March 14, 2014, Plaintiff filed a Title XVI application for Supplemental Security Income, alleging disability beginning on November 23, 2013.[2] See Administrative Record (“AR”) at 152-160. Plaintiff's claim was denied initially on May 21, 2014, and upon reconsideration on December 11, 2014, resulting in Plaintiff's request for an administrative hearing. Id. at 78-81, 88-93. Plaintiff requested the administrative hearing on November 20, 2014. Id. at 85-87.

         On May 23, 2016, a hearing was held before Administrative Law Judge (“ALJ”) Mark B. Greenberg. Id. at 29-49. Plaintiff, represented by his attorney, David M. Shore, testified at the hearing. Id. An impartial vocational expert (“VE”), Ms. Gloria Lasoff, was also present and testified. Id. at 47-48. At the outset of the hearing, the ALJ asked Plaintiff's attorney, Mr. Shore, whether the record was complete. Id. at 30. Plaintiff's attorney responded that Plaintiff's “medical source statement” had not been completed by his doctor at the Vista Community Clinic. Id. The ALJ agreed to “leave the record open then if necessary for three weeks . . . for the medical source statement [or anything else that Plaintiff wanted to supplement the record with].” Id. at 31-32.

         In a written decision dated December 8, 2016, ALJ Mark B. Greenberg determined that Plaintiff had not been under a disability, as defined in the Social Security Act, from February 28, 2014 through the date of the ALJ's decision. Id. at 16-24. Plaintiff requested review by the Appeals Council. Id. at 151. In an order dated November 30, 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 1-3.

         On January 31, 2018, Plaintiff, represented by his attorney, Lawrence D. Rohlfing, filed the instant action seeking judicial review by the federal district court. See ECF No. 1. On September 17, 2018, Plaintiff filed a Motion for Summary Judgment alleging that “the ALJ err[ed] in failing to consider the later evidence is [sic] assessing current disability.” Pl.'s Mot. at 6-8. Plaintiff asserts that “[t]he final decision of the Commissioner lacks the support of substantial evidence and rests upon error of law.” Id. at 8. Defendant filed a timely Cross-Motion for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment asserting that “[t]he ALJ properly evaluated Plaintiff's residual functional capacity” and that the ALJ's decision is supported by substantial evidence. Def.'s Mot. at 6. Plaintiff replies that “the ALJ fail[ed] to account for evidence of deterioration in assessing residual functional capacity.” Pl.'s Reply at 2. Plaintiff further replies that “[t]he Commissioner relie[d] on the absence of a medical source statement contrary to the ALJ finding” and that “residual functional capacity takes all evidence into account, not just the opinion evidence.” Id.

         ALJ'S DECISION

         On December 8, 2016, the ALJ issued a written decision in which he determined that Plaintiff had not been under a disability, as defined in the Social Security Act, from February 28, 2014[3] through the date of the ALJ's decision. AR at 16-24. The ALJ determined that Plaintiff had not engaged in substantial gainful activity during the relevant time period (since February 28, 2014, the application date). Id. at 19. The ALJ noted that “the claimant testified he did some work around his roommate's house after the alleged onset date of disability [November 23, 2013], ” but “the claimant's earnings from this work did not rise to the level of substantial gainful activity.” Id. The ALJ then considered all of Plaintiff's medical impairments and determined that the following impairments were “severe” as defined in the Regulations: “degenerative disc disease and sprain/strain

         (20 CFR 416.920(c)).” Id. The ALJ noted that “[t]he claimant also has nonsevere anxiety, alcoholism, tremor, Hepatitis C, palpitations, hypertension, COPD, and a history of hip fracture.” Id. However, the ALJ further noted that “based on the objective medical record and the claimant's testimony it appears these conditions were managed medically, and they should be amenable to proper control by adherence to recommended medical management and medical compliance.” Id. Finally, the ALJ noted that “[t]he claimant's medically determinable mental impairments of anxiety and alcoholism, considered singly and in combination, do not cause more than minimal limitation in the claimant's ability to perform basic mental work activities and are therefore nonsevere.” Id. At step three, the ALJ found that Plaintiff's medically determinable impairments or combination of impairments did not meet or medically equal the listed impairments. Id. In reaching this decision, the ALJ noted that each impairment did not meet or medically equal the severity of one of the listed impairments in 20 CFR part 404, Subpart P, Appendix 1. Id.

         At step four, the ALJ considered Plaintiff's severe impairments and determined that his residual functional capacity (“RFC”) permitted him

to perform medium work as defined in 20 CFR 416.967(c) except the claimant can lift and/or carry 50 pounds occasionally and 25 pounds frequently; the claimant can sit for 6 hours in an 8-hour workday; the claimant can stand and/or walk for 6 hours in an 8-hour workday; and the claimant can perform frequent postural activity.

Id. at 21. The ALJ found that while Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms, ” Plaintiff's “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record.” Id. at 22. In reaching this decision, the ALJ gave significant weight to the State Agency medical examiners. Id. at 22-24. The ALJ found that

[t]he consistency of the claimant's allegations regarding the severity of his symptoms and limitations is diminished because those allegations are greater than expected in light of the objective evidence of record. The positive objective clinical and diagnostic findings since the alleged onset date detailed above do not support more restrictive functional limitations than those assessed herein. . .
In sum, the significant range of medium residual functional capacity assessment is supported by the testimony of the claimant; the claimant's disability reports; and the claimant's treatment records. Specifically, the medium limitation addresses the claimant's impairments and subjective complaints.

Id. at 23, 25.

         The ALJ then found that Plaintiff is able to perform his past relevant work (“PRW”) as a handyman as it is “actually and generally performed.” Id. at 25.

         STANDARD OF REVIEW

         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 Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).

         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. See Batson, 359 F.3d at 1193. This includes deferring to the ALJ's credibility determinations and resolutions of evidentiary conflicts. See Lewis, 236 F.3d at 509.

         Even if the reviewing court finds that substantial evidence supports the ALJ's conclusions, the court must set aside the decision if the ALJ failed to apply the proper legal standards in weighing the evidence and reaching his or her decision. See Batson, 359 F.3d at 1193. 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 Social Security Administration for further proceedings. Id.

         DISCUSSION

         Plaintiff seeks to have his case reviewed and for the Court to enter a decision in his favor. Pl.'s Mot. at 7-8. Plaintiff argues that “the ALJ err[ed] in failing to consider the later [medical] evidence is [sic] assessing [plaintiff's] current disability.” Id. at 6. Plaintiff notes that the ALJ found that Plaintiff had “disc disease and sprain/strain, ” and assessed Plaintiff as having the residual functional capacity to perform a range of medium work with standing/walking limited to six hours in an eight-hour day. Id. Plaintiff argues that although the ALJ gave significant weight to the state agency physicians, the ALJ did not “address the findings, diagnoses, or plans of Dr. Thompson or the physician assistant.” Id. at 6. Plaintiff argues that the ALJ “failed to address whether Hlava medically changed by July 2014 and continuing into 2015 and 2016.” Id. at 7. Specifically, Plaintiff states that the ALJ credited the findings of Dr. Sabourin, the state agency medical examiner, but ignored the later objective findings of Plaintiff's “slow flexed gait” and “decreased range of motion” which differed from the findings of Dr. Sabourin. Id. In sum, Plaintiff argues that the ALJ's decision lacks substantial evidence because the ALJ “failed to address the objective findings as evidence Hlava lost the ability to perform yard work or mechanical work, indicative of his past work and other activity requiring medium exertion.” Id. at 7-8.

         Defendant contends that substantial evidence supports the ALJ's RFC finding and that “Plaintiff has not specified any evidence to the contrary.” Def.'s Mot. at 6. Defendant argues that in making his RFC finding, “the ALJ [took] into account those limitations for which there [was] record support that does not depend on properly rejected evidence and the claimant's subjective complaints.” Id. at 7 (internal citations omitted). Defendant argues that here, “there is no opinion of disability from any physician.” Id. Defendant further argues that the ALJ “reasonably adopted” Dr. Sabourin's opinion as his RFC finding, as there was no objective evidence of deterioration. Id. Defendant acknowledges that Dr. Thompson indicated that Plaintiff's back pain is aggravated by daily yard work and moving dirt, but that she further noted that Plaintiff's pain is relieved by medication. Id. at 7-8 (citing Warre v. Comm'r of Soc. Sec., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be controlled effectively with medication are not disabling for the purpose of determining eligibility for SSI benefits.”). Defendant also argues that Plaintiff's activities of daily living (taking care of an elderly friend, performing yard work, plumbing, cooking, and housework) are inconsistent with Plaintiff's allegations of disabling pain. Id. at 9.

         Plaintiff reasserts its previous arguments in the Reply that the “ALJ fail[ed] to account for evidence of deterioration in assessing residual functional capacity.” Pl.'s Reply at 2. Plaintiff further argues that the “Commissioner misapplies the regulatory standard - residual functional capacity takes all evidence into account, not just the opinion evidence.” Id. Plaintiff states that “Hlava had back pain flares every time he tried to do any lifting or previous work such as mechanic work” and needed “hydrocodone for pain” and sometimes “used vodka to combat pain.” Id. at 2. Plaintiff further states that Dr. Sabourin examined Hlava in April 2014 and did not find that Plaintiff had these (and other) limitations. Id. at 2-3. Plaintiff argues that the ALJ failed to state specific and legitimate reasons for rejecting the inference of deterioration based on the clinical ...


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