Trenton Bostock v. Nancy A Berryhill, No. 2:2018cv02565 - Document 17 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge John D. Early. IT IS ORDERED that Judgment be entered reversing the decision of the Commissioner of Social Security and remanding this matter for further administrative proceedings consistent with this Order. (see document for further information) (hr)
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Trenton Bostock v. Nancy A Berryhill Doc. 17 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 TRENTON BOSTOCK, 12 13 14 15 16 17 18 19 Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. ) Case No. 2:18-cv-02565-JDE ) ) ) MEMORANDUM OPINION AND ) ) ORDER ) ) ) ) ) ) ) ) ) Plaintiff Trenton Bostock (“Plaintiff”) filed a Complaint on March 29, 20 2018, seeking review of the Commissioner’s denial of his application for 21 disability insurance benefits (“DIB”). Dkt. 1. Pursuant to the procedures set 22 forth in the Case Management Order, Plaintiff and the Commissioner each 23 filed cross-motions for judgment on the pleadings. Dkt. 15 (“Motion”) and 24 Dkt. 16 (“Cross-Motion”), respectively. The matter now is ready for decision. 25 I. 26 BACKGROUND 27 Plaintiff filed an application for DIB on August 4, 2014, alleging 28 disability commencing on April 12, 2013. Administrative Record (“AR”) 257- Dockets.Justia.com 1 60. On September 11, 2014, after his application was denied initially and on 2 reconsideration (AR 148-57), Plaintiff, represented by counsel, appeared and 3 testified at a hearing before an Administrative Law Judge (“ALJ”). AR 96-147. 4 On December 2, 2016, the ALJ issued a written decision finding Plaintiff was 5 not disabled (AR 32-49), had not engaged in substantial gainful employment 6 since April 12, 2013, and suffered from the following severe impairments: 7 degenerative disc disease, other disorders of the lumbosacral spine, and 8 obesity. AR 37. The ALJ also found Plaintiff did not have an impairment or 9 combination of impairments that met or medically equaled a listed impairment 10 and had the residual functional capacity (“RFC”) to perform light work, 11 further limited as follows: 12 “[T]he [Plaintiff] can lift and/or carry twenty pounds occasionally, 13 ten pounds frequently, stand and/or walk for six hours and sit six 14 hours in an eight-hour day. The [Plaintiff] requires the ability to 15 alternate position from standing and/or walking to sitting, for 16 fifteen minutes, after every two hours of standing or walking. The 17 [Plaintiff] can push and/or pull to the extent that he can lift and/or 18 carry. The [Plaintiff] can frequently climb ramps and stairs, but only 19 occasionally climb ladders, ropes, and scaffolds, stoop kneel and 20 crawl. The [Plaintiff] can have frequent exposure to hazards such as 21 dangerous moving machinery and unprotected heights. 22 23 AR 40. The ALJ found Plaintiff was capable of performing his past relevant 24 work as a Driving Instructor as generally performed. AR 44-45. Accordingly, 25 the ALJ concluded Plaintiff was not under a “disability,” as defined in the 26 Social Security Act. Id. at 45. 27 On February 20, 2018, the Appeals Council denied Plaintiff’s request for 28 review, making the ALJ’s decision the Commissioner’s final decision. AR 1-7. 2 1 II. 2 LEGAL STANDARDS 3 A. Standard of Review 4 Under 42 U.S.C. § 405(g), this court may review the Commissioner’s 5 decision to deny benefits. The ALJ’s findings and decision should be upheld if 6 they are free from legal error and supported by substantial evidence based on 7 the record as a whole. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 8 2015) (as amended); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 9 Substantial evidence means such relevant evidence as a reasonable person 10 might accept as adequate to support a conclusion. Lingenfelter v. Astrue, 504 11 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla, but less than a 12 preponderance. Id. To determine whether substantial evidence supports a 13 finding, the reviewing court “must review the administrative record as a whole, 14 weighing both the evidence that supports and the evidence that detracts from 15 the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th 16 Cir. 1998). “If the evidence can reasonably support either affirming or 17 reversing,” the reviewing court “may not substitute its judgment” for that of 18 the Commissioner. Id. at 720-21; see also Molina v. Astrue, 674 F.3d 1104, 19 1111 (9th Cir. 2012) (“Even when the evidence is susceptible to more than one 20 rational interpretation, [the court] must uphold the ALJ’s findings if they are 21 supported by inferences reasonably drawn from the record.”). 22 Lastly, even if an ALJ errs, the decision will be affirmed where that error 23 is harmless. Id. at 1115. An error is harmless if it is “inconsequential to the 24 ultimate nondisability determination,” or if “the agency’s path may reasonably 25 be discerned, even if the agency explains its decision with less than ideal 26 clarity.” Brown-Hunter, 806 F.3d at 492 (citation omitted). 27 /// 28 /// 3 1 2 B. Standard for Determining Disability Benefits When the claimant’s case has proceeded to consideration by an ALJ, the 3 ALJ conducts a five-step sequential evaluation to determine at each step if the 4 claimant is or is not disabled. See Molina, 674 F.3d at 1110. 5 First, the ALJ considers whether the claimant currently works at a job 6 that meets the criteria for “substantial gainful activity.” Id. If not, the ALJ 7 proceeds to a second step to determine whether the claimant has a “severe” 8 medically determinable physical or mental impairment or combination of 9 impairments that has lasted for more than twelve months. Id. If so, the ALJ 10 proceeds to a third step to determine whether the claimant’s impairments 11 render the claimant disabled because they “meet or equal” any of the “listed 12 impairments” set forth in the Social Security regulations at 20 C.F.R. Part 404, 13 Subpart P, Appendix 1. See Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 14 996, 1001 (9th Cir. 2015). 15 If the claimant’s impairments do not meet or equal a “listed 16 impairment,” before proceeding to the fourth step the ALJ assesses the 17 claimant’s RFC, that is, what the claimant can do on a sustained basis despite 18 the limitations from his impairments. See 20 C.F.R. §§ 404.1520(a)(4), 19 416.920(a)(4); Social Security Ruling (“SSR”) 96-8p. After determining the 20 claimant’s RFC, the ALJ proceeds to the fourth step and determines whether 21 the claimant has the RFC to perform his past relevant work, either as he 22 “actually” performed it when he worked in the past, or as that same job is 23 “generally” performed in the national economy. See Stacy v. Colvin, 825 F.3d 24 563, 569 (9th Cir. 2016). 25 If the claimant cannot perform his past relevant work, the ALJ proceeds 26 to a fifth and final step to determine whether there is any other work, in light of 27 the claimant’s RFC, age, education, and work experience, that the claimant 28 can perform and that exists in “significant numbers” in either the national or 4 1 regional economies. See Tackett v. Apfel, 180 F.3d 1094, 1100-01 (9th Cir. 2 1999). If the claimant can do other work, he or she is not disabled; but if the 3 claimant cannot do other work and meets the duration requirement, the 4 claimant is disabled. See Id. at 1099. The claimant generally bears the burden at each of steps one through 5 6 four to show he or she is disabled, or he or she meets the requirements to 7 proceed to the next step; and the claimant bears the ultimate burden to show 8 he or she is disabled. See, e.g., Molina, 674 F.3d at 1110; Johnson v. Shalala, 9 60 F.3d 1428, 1432 (9th Cir. 1995). However, at Step Five, the ALJ has a 10 “limited” burden of production to identify representative jobs that the claimant 11 can perform and that exist in “significant” numbers in the economy. See Hill v. 12 Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); Tackett, 180 F.3d at 1100. 13 III. 14 DISCUSSION Plaintiff presents one disputed issue: Whether the ALJ properly 15 16 17 18 19 evaluated Plaintiff’s testimony. Motion at 5. A. Plaintiff’s Subjective Symptom Testimony 1. Applicable Law Where a disability claimant produces objective medical evidence of an 20 underlying impairment that could reasonably be expected to produce the pain 21 or other symptoms alleged, absent evidence of malingering, the ALJ must 22 provide “‘specific, clear and convincing reasons for’ rejecting the claimant’s 23 testimony regarding the severity of the claimant’s symptoms.” Treichler v. 24 Comm’r Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (citation 25 omitted); Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); see also 20 26 C.F.R. § 416.929. The ALJ’s findings “must be sufficiently specific to allow a 27 reviewing court to conclude that the [ALJ] rejected [the] claimant’s testimony 28 on permissible grounds and did not arbitrarily discredit the claimant’s 5 1 testimony.” Moisa, 367 F.3d at 885 (citation omitted). However, if the ALJ’s 2 assessment of the claimant’s testimony is reasonable and is supported by 3 substantial evidence, it is not the Court’s role to “second-guess” it. See Rollins 4 v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Finally, the ALJ's credibility 5 finding may be upheld even if not all of the ALJ’s reasons for rejecting the 6 claimant’s testimony are upheld. See Batson v. Comm’r Soc. Sec. Admin, 359 7 F.3d 1190, 1197 (9th Cir. 2004). 8 9 2. Analysis Plaintiff testified he injured himself at work while loading and 10 unloading a truck, has “major pain” in his lower lumbar area, and he gets 11 sharp pains in both of his legs, hips, and down to his toes. AR 124, 130-31. 12 Plaintiff reported he can only stand in one place, walk, or sit for about an hour 13 and a half at a time. AR 132-33. Plaintiff testified “the only surgery” he had 14 was a spinal cord stimulator procedure, and stated an orthopedic surgeon told 15 him it was “too risky” to perform other surgical procedures. AR 103. Plaintiff 16 testified that the surgeon did not further explain the underlying risks. Id. 17 Plaintiff also stated taking epidural shots, injections, and blocks did not have 18 any impact on his pain, but the spinal cord stimulator procedure reduced his 19 pain by “about 20 to 30 percent.” AR 134. 20 The ALJ found Plaintiff’s medically determinable impairments could 21 reasonably be expected to cause some of the alleged symptoms, but his 22 statements “concerning the intensity, persistence[,] and limiting effects of these 23 symptoms [were] not entirely consistent with the objective medical evidence 24 and other evidence,” (AR 43) because the testimony was inconsistent with: (1) 25 the objective evidence in the record and (2) Plaintiff’s conservative treatment. 26 First, the ALJ discounted Plaintiff’s testimony because it was not 27 supported by objective medical evidence. AR 28-31. “Although lack of medical 28 evidence cannot form the sole basis for discounting pain testimony, it is a 6 1 factor that the ALJ can consider in his credibility analysis.” Burch v. Barnhart, 2 400 F.3d 676, 681 (9th Cir. 2005); see also Rollins, 261 F.3d at 857. The record 3 shows several objective medical findings and conclusions conflict with 4 Plaintiff’s allegations of total disability, including: diagnostic testing, including 5 MRIs and CT myelograms, showing no evidence of nerve root impingement, 6 no evidence of a synovial cyst, no associated high-grade canal or neural 7 foraminal stenosis, and no mention of nerve root involvement at any level. AR 8 744, 779, 782-83. In light of this evidence, the ALJ properly considered 9 inconsistency with the objective medical evidence as one factor supporting the 10 decision to discount Plaintiff’s symptom testimony—so long as this factor was 11 not the only factor supporting the decision. See Burch, 400 F.3d at 681. 12 Second, the ALJ discounted Plaintiff’s testimony because “the treatment 13 record is not consistent with disabling symptoms” and “fails to show evidence 14 of long-term, intractable pain and disuse.” AR 44. The ALJ reasoned: (1) 15 although Plaintiff purchased a cane at his doctor’s suggestion, there is no 16 indication any ambulatory aides had been prescribed; (2) although Plaintiff has 17 been prescribed narcotic medications, physical therapy, and a nerve 18 stimulation device, there is no evidence surgery had been indicated or strongly 19 suggested; (3) Plaintiff had not been noted to be in acute pain at examinations; 20 (4) there is no record of urgent treatment; (5) there is no evidence of Plaintiff 21 consistently complaining or seeking treatment for bilateral lower extremity 22 numbness; and (6) Plaintiff exaggerated his gait to an Agreed Medical 23 Examiner. AR 44. Thus, the ALJ appears to contend that Plaintiff has only 24 received conservative treatment. 25 Plaintiff argues his care was not conservative in nature, and the ALJ did 26 not cite any medical evidence demonstrating Plaintiff “had in fact undergone a 27 conservative course of treatment.” Motion at 10-11. Plaintiff contends narcotic 28 medications and epidurals do not qualify as conservative treatment. Id. at 11. 7 1 Courts have variously characterized steroid epidural injections as both 2 conservative and not conservative depending on other circumstances. 3 Typically, when limited or one-time injections, courts have deemed the 4 treatment conservative. See, e.g., Jones v. Comm’r, 2014 WL 228590, at *7 (E. 5 D. Cal. Jan. 21, 2014) (finding occasional use of epidural injections in 6 conjunction with massages and anti-inflammatory medications could be 7 considered conservative); Veliz v. Colvin, 2015 WL 1862924, at *8 (C.D. Cal. 8 Apr. 23, 2015) (finding a single steroid injection did not undermine ALJ’s 9 finding that plaintiff received conservative treatment); Gonzales v. Colvin, 10 2015 WL 685347, at *11 (C.D. Cal. Feb. 18, 2015) (finding treatment 11 consisting of medication and a single steroid injection was conservative). By 12 contrast, other courts have found such treatment not conservative, in particular 13 when a claimant was treated with other injections and narcotic pain 14 medication. See, e.g., Yang v. Colvin, 2015 WL 248056, at *6 (C.D. Cal. Jan. 15 20, 2015) (collecting cases finding spinal epidural injections not conservative); 16 Christie v. Astrue, 2011 WL 4368189, at *4 (C.D. Cal. Sept. 16, 2011) (not 17 characterizing steroid, trigger point, and epidural injections as conservative). 18 Similarly, the use of narcotic medication, by itself, may be considered 19 conservative treatment. See Huizar v. Comm’r, 428 F. App’x 678, 680 (9th 20 Cir. 2011) (finding plaintiff responded to conservative treatment, which 21 included use of narcotic medication); Higinio v. Colvin, 2014 WL 47935, at *5 22 (C.D. Cal. Jan. 7, 2014) (concluding, despite narcotic prescriptions, treatment 23 as a whole was conservative); Grisel v. Colvin, 2014 WL 1315894, at *12 24 (C.D. Cal. Apr. 2, 2014) (finding narcotic pain medication conservative when 25 it provided relief and was not in combination with other treatments such as 26 epidural injections). But, in general, the Ninth Circuit and district courts 27 within this circuit have viewed the use of narcotic pain medication as non- 28 conservative treatment, particularly when in conjunction with other treatments 8 1 that were also not conservative. See, e.g., Lapeirre–Gutt v. Astrue, 382 F. 2 App’x 662, 664 (9th Cir. 2010) (holding treatment consisting of “copious” 3 amounts of narcotic pain medication, occipital nerve blocks, and trigger point 4 injections was not conservative); Soltero De Rodriguez v. Colvin, 2015 WL 5 5545038, at *4 (C.D. Cal. Sept. 18, 2015); Christie, 2011 WL 4368189, at *4 6 (finding treatment with narcotics, steroid injections, trigger point injections, 7 epidural injections, and cervical traction was not conservative). 8 Here, Plaintiff’s treatment has consisted of: (1) treatment by a pain 9 management specialist, (2) narcotic pain medication to control Plaintiff’s pain, 10 (3) physical therapy, (4) acupuncture, (5) chiropractic treatment, (6) multiple 11 lumbar epidural injections, (7) facet injections, and (8) a spinal cord stimulator 12 procedure. AR 813, 376, 377, 379, 570, 610, 659, 663-64, 728-29, 757, 774, 13 785, 787-91. Ryan C. Peterson, M.D., Plaintiff’s treating physician, classified 14 Plaintiff as having gone through “aggressive pain management.” AR 813. 15 Plaintiff did not receive only a single injection, and he did not only receive 16 narcotic medications. He received multiple types of injections on several 17 occasions, all of which only provided temporary relief, as well as being 18 prescribed narcotic medications. AR 134, 813. Plaintiff also reported high 19 levels of pain during examinations on multiple occasions. AR 762, 766. 20 In addition, Plaintiff’s doctors considered surgery as a treatment option 21 on several occasions (AR 374, 406-07, 594, 612, 656, 700, 786), and Plaintiff 22 testified his doctor ultimately found surgery to be “too risky.” AR 103. The 23 ALJ failed to point to anything in the record suggesting any specific surgical or 24 more aggressive procedure beyond Plaintiff’s existing treatment is a standard 25 method for treating individuals with the type of pain recounted by Plaintiff. 26 See Yang, 2015 WL 248056, at *6-7. Plaintiff need not be “utterly 27 incapacitated to be disabled. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). 28 The Commissioner raises the opinions of Gary Ghazi, M.D. and William 9 1 Pevsner, D.O. to support the ALJ’s finding of conservative treatment, but the 2 ALJ did not raise those opinions to support his finding on that issue. See Bray 3 v. Comm’r of Soc. Sec., 554 F.3d 1219, 1225 (9th Cir. 2009) (“long-standing 4 principles of administrative law require us to review the ALJ’s decision based 5 on the reasoning and factual findings offered by the ALJ—not post hoc 6 rationalizations that attempt to intuit what the adjudicator may have been 7 thinking”); see also SEC v. Chenery Corp., 332 U.S. 194, 196 (1947). 8 Similarly, although both parties discuss activities of daily living in connection 9 with the analysis of subjective symptom testimony (Motion at 12-13; Cross- 10 Motion at 9-10), as the Commissioner concedes, the ALJ did not rely upon 11 such activities in discrediting Plaintiff’s testimony and this Court cannot rely 12 upon a ground not relied upon by the ALJ. Bray, 554 F.3d at 1225. 13 Considering the record as a whole, the ALJ’s finding that plaintiff 14 received conservative treatment was not supported by substantial evidence. See 15 Ruiz v. Berryhill, 2017 WL 4570811, at *5-6 (C.D. Cal. Oct. 11, 2017) (finding 16 plaintiff’s treatment was not conservative where he received acupuncture, 17 narcotic pain medication, facet joint injections, epidural injections, 18 physiotherapy, chiropractic care, and aquatic therapy); Yang, 2015 WL 19 248056, at *6-7 (finding plaintiff’s treatment was not conservative where he 20 received treatment by a pain management specialist, narcotic pain medication, 21 physical therapy, acupuncture, electrical stimulation, and chiropractic 22 treatment). Plaintiff’s wide range of cumulative treatment, including narcotic 23 pain medication and multiple epidural shots, was not conservative. 24 In sum, the ALJ finding that Plaintiff’s symptom testimony was 25 inconsistent with the objective medical evidence was supported by substantial 26 evidence, but the finding of conservative treatment was not so supported. As 27 inconsistency with the objective medical evidence cannot be the only basis to 28 10 1 discount Plaintiff’s subjective symptom testimony, the ALJ erred. See Burch, 2 400 F.3d at 681; Rollins, 261 F.3d at 857; 20 C.F.R. § 404.1529(c)(2). 3 4 B. Remand is appropriate. The decision whether to remand for further proceedings is within this 5 Court’s discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000) 6 (as amended). Where no useful purpose would be served by further 7 administrative proceedings, or where the record has been fully developed, it is 8 appropriate to exercise this discretion to direct an immediate award of benefits. 9 See Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004); Harman, 211 F.3d 10 at 1179 (noting that “the decision of whether to remand for further proceedings 11 turns upon the likely utility of such proceedings”). 12 Here, remand is required because the ALJ failed to properly consider 13 Plaintiff’s subjective symptom testimony. On remand, the ALJ shall reconsider 14 Plaintiff’s subjective complaints and either credit his testimony or provide 15 sufficient clear and convincing reasons supported by substantial evidence for 16 rejecting it and conduct such further proceedings as is warranted by such 17 reconsideration. 18 IV. 19 ORDER 20 IT THEREFORE IS ORDERED that Judgment be entered reversing the 21 decision of the Commissioner of Social Security and remanding this matter for 22 further administrative proceedings consistent with this Order. 23 24 Dated: November 09, 2018 25 ______________________________ JOHN D. EARLY United States Magistrate Judge 26 27 28 11
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