Tuupoina v. Saul

          ORDER DIRECTING ENTRY OF JUDGMENT IN FAVOR OF COMMISSIONER OF SOCIAL SECURITY AND AGAINST PLAINTIFF

          GARY S. AUSTIN UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Plaintiff David Tuupoina (“Plaintiff”) seeks judicial review of the final decision of the Commissioner of Social Security (“Commissioner” or “Defendant”) denying his application for disability insurance benefits pursuant to Title II and supplemental security income pursuant to Title XVI of the Social Security Act. The matter is currently before the Court on the parties' briefs which were submitted without oral argument to the Honorable Gary S. Austin, United States Magistrate Judge.^[1] See Docs. 19 and 26. Having reviewed the record as a whole, the Court finds that the ALJ's decision is supported by substantial evidence and applicable law. Accordingly, Plaintiff's appeal is denied.

         II. Procedural Background

         On December 22, 2009, Plaintiff filed applications for disability insurance benefits and supplemental security income alleging disability beginning October 1, 2009. AR 126. Following initial review, reconsideration and an agency hearing, the Commissioner denied the applications on October 11, 2012. AR 126. The Appeals Council denied review on November 21, 2013. AR 126.

         On January 27, 2014, Plaintiff again filed applications for disability insurance benefits^[2]and supplemental security income alleging disability beginning October 1, 2009. AR 33. The Commissioner denied the application initially on July 15, 2014, and following reconsideration on November 19, 2014. AR 33.

         On December 22, 2014, Plaintiff filed a request for a hearing. AR 33. Administrative Law Judge Nancy Stewart presided over an administrative hearing on September 26, 2016. AR 86-105. Plaintiff appeared and was represented by an attorney. AR 86. On December 8, 2016, the ALJ denied Plaintiff's application. AR 33-40.

         The Appeals Council denied review on February 13, 2018. AR 7-13. On September 25, 2018, 2018, Plaintiff filed a complaint in this Court. Doc. 1.

         III. Factual Background

         A. Plaintiff's Testimony

         Plaintiff (born May 18, 1964) completed the twelfth grade. AR 90. He had previously worked as a security bouncer at a nightclub, where he was paid “under the table.” AR 92-93. During the day, Plaintiff was responsible for accepting liquor deliveries and moving stage and dance floor equipment according to the night's planned entertainment. AR 94-95.

         Plaintiff was using marijuana to relieve his pain even though his doctor had declined to give Plaintiff a medical marijuana card. AR 96-97. He was able to lift fifty pounds comfortably, much less than he had to lift on his last job. AR 97. In the mornings he walked his daughters one mile to school, then rested outside the office before walking home. AR 98. When he experienced pain while standing, as when he did the dishes, Plaintiff took a break. AR 98. He was most comfortable sitting or lying on the floor. AR 99. When his pain was severe, Plaintiff smoked marijuana and lay down. AR 100.

         B. Medical Records

         The administrative record includes limited medical records. At the administrative hearing Plaintiff's attorney confirmed that the record was complete and that Plaintiff had not seen his primary care physician “in quite some time.” AR 89.

         On December 28, 2013, Plaintiff was treated in the emergency department of Memorial Hospital Los Banos (MHLB) for an itchy rash diagnosed as ringworm. AR 365. Emergency room personnel also prescribed blood pressure medication because Plaintiff's blood pressure was high (199/110). AR 365-68. Plaintiff returned to MHLB on January 31, 2014, with a pruritic erythematous rash. AR 372-78.

         On June 23, 2014, Plaintiff was treated in the emergency department following a fall in his bathtub. AR 381-83. Medical personnel diagnosed strain of the abductor muscles of the right leg and right paralumbar muscles and prescribed valium and Norco. AR 382-83. On June 25, 2014, Anna Vaz, NP, treated Plaintiff for muscle spasm at Santa Clara Valley Medical Center. AR 392. Ms. Vaz prescribed Flexeril. AR 392.

         In the emergency department of Emanuel Medical Center on February 14, 2016, Brad Ramsey, D.O., treated Plaintiff for acute lumbar radiculopathy. AR 401. Dr. Ramsey prescribed Baclofen and Naproxen and directed Plaintiff to follow up with his primary care physician. AR 401.

         On February 26, 2015, Plaintiff was treated for rectal bleeding in the gastroenterology department of Santa Clara Valley Medical Center. AR 403-08. In the course of a colonoscopy on June 3, 2015, Nimeesh Shah, M.D., removed three polyps from Plaintiff's colon. AR 409-10. In July 2015, doctors reported that the polyps were invasive carcinoma but that there was no evidence of metastases. AR 414.

         In July 2016, Peter Park, M.D., diagnosed a ganglion cyst in Plaintiff's right wrist and prescribed Naproxen. AR 426.

         IV. Standard of Review

         Pursuant to 42 U.S.C. §405(g), this court has the authority to review a decision by the Commissioner denying a claimant disability benefits. “This court may set aside the Commissioner's denial of disability insurance benefits when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180 F.3d 1094, 1097 (9^th Cir. 1999) (citations omitted). Substantial evidence is evidence within the record that could lead a reasonable mind to accept a conclusion regarding disability status. See Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9^th Cir. 1996) (internal citation omitted). When performing this analysis, the court must “consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. Social Security Admin., 466 F.3d 880, 882 (9^th Cir. 2006) (citations and internal quotation marks omitted).

         If the evidence reasonably could support two conclusions, the court “may not substitute its judgment for that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112 F.3d 1064, 1066 (9^th Cir. 1997) (citation omitted). “[T]he court will not reverse an ALJ's decision for harmless error, which exists when it is clear from the record that the ALJ's error was inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9^th Cir. 2008) (citations and internal quotation marks omitted).

         V. The Disability Standard

         To qualify for benefits under the Social Security Act, a plaintiff must establish that he or she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment that has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 1382c(a)(3)(A). An individual shall be considered to have a disability only if . . . his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, ...