Jeffrey Semonian v. Nancy A. Berryhill, No. 2:2018cv08538 - Document 22 (C.D. Cal. 2019)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen E. Scott. IT IS ORDERED that judgment shall be entered AFFIRMING the decision of the Commissioner. (See document for details.) (sbou)
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Jeffrey Semonian v. Nancy A. Berryhill Doc. 22 1 2 3 O 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JEFFREY S., 12 13 14 15 Case No. 2:18-cv-08538-KES Plaintiff, MEMORANDUM OPINION AND ORDER v. ANDREW M. SAUL, Commissioner of Social Security,1 Defendant. 16 17 18 I. 19 BACKGROUND 20 Plaintiff Jeffrey S. (“Plaintiff”) worked for six years as a loan officer for 21 AmeriSave Mortgage Corporation based in Atlanta, Georgia. Administrative 22 Record (“AR”) 119, 603. He worked out of his home in California, sitting in a 23 kitchen chair and using his own telephone and computer to call leads, explain loan 24 terms, enter data, and originate loans. AR 119-20, 122, 431, 603, 607. In 2009 25 26 27 28 Mr. Saul was sworn in as Commissioner of Social Security in June 2019. See https://blog.ssa.gov/social-security-welcomes-its-new-commissioner/. Accordingly, he is substituted for Ms. Berryhill pursuant to Federal Rule of Civil Procedure 25(d). 1 1 Dockets.Justia.com 1 and 2010, he reported more than $100,000 in annual income. AR 313. He 2 developed neck and back pain and quit in July 2011 due to “excruciating pain.” 3 AR 431, 603, 607. Three years later in June 2014, he filed a workers’ 4 compensation claim against AmeriSave. AR 602. After some medical treatment, 5 he received a settlement for $17,000 in approximately 2015. AR 122. 6 In June 2015, he applied for Title II and Title XVI social security disability 7 benefits, alleging disability commencing December 31, 2013. AR 302-07. On 8 February 15, 2018, an Administrative Law Judge (“ALJ”) conducted a hearing at 9 which Plaintiff, who was represented by an attorney, appeared and testified, as did 10 a vocational expert (“VE”). AR 113-33. On April 4, 2018, the ALJ issued an 11 unfavorable decision. AR 65-83. 12 The ALJ found that Plaintiff suffered from several severe medically 13 determinable impairments that cause back and neck pain, as follows: “cervical 14 spine degenerative disc disease; history of cervical spine sprain/strain with 15 spondylosis of the cervicothoracic region and cervicalgia; and lumbar spine 16 degenerative disc disease; and lumbar spine sprain/strain.” AR 70. The ALJ found 17 that Plaintiff’s depression, anxiety, and insomnia were non-severe. AR 71. 18 Despite these impairments, the ALJ found that Plaintiff had a residual 19 functional capacity (“RFC”) to perform medium work with some additional 20 restrictions. AR 72. Of relevance here, the ALJ found that Plaintiff could stand, 21 walk, or sit for 6 hours during an 8-hour workday. Id. 22 Based on the RFC analysis and the VE’s testimony, the ALJ found that 23 Plaintiff could perform his past relevant work as a loan advisor (Dictionary of 24 Occupational Titles [“DOT”] 249.362-018) or telephone solicitor (DOT 299.357- 25 014), both of which are classified as sedentary jobs. AR 76. The ALJ concluded 26 that Plaintiff was not disabled. AR 77. 27 28 2 1 II. 2 ISSUES PRESENTED 3 Issue One: Whether the ALJ erred by giving no weight to the opinion of 4 Plaintiff’s treating orthopedist in 2014 and 2015, Dr. David Johnson, that Plaintiff 5 should be restricted from sitting or standing for more than “3 hours at a time per 6 day” (AR 636). 7 8 9 10 11 Issue Two: Whether the ALJ erred by finding Plaintiff’s mental impairments non-severe. Issue Three: Whether the ALJ erred in evaluating Plaintiff’s subjective symptom testimony. (Dkt. 21, Joint Stipulation [“JS”] at 2.) 12 III. 13 DISCUSSION 14 15 16 ISSUE ONE: Dr. Johnson. 1. Summary of Relevant Medical Evidence. In June 2014, Plaintiff attended an initial evaluation with Dr. Johnson as part 17 of his workers’ compensation claim. AR 430, 602. He described his neck and 18 back pain as having a gradual onset from 2006 to 2011 and reaching a 7/10 level 19 by 2014. AR 354, 431. Plaintiff was taking aspirin for pain management, and he 20 reported that medication helped alleviate his pain. AR 432. Dr. Johnson observed 21 that Plaintiff had a normal range of motion (“ROM”) in his cervical spine but a 22 somewhat reduced ROM in his lumbar spine. AR 433-34. His legs had 4/5 motor 23 strength. AR 434. Dr. Johnson diagnosed Plaintiff as suffering from cervical and 24 lumbar spine sprain/strain and radiculopathy, injuries that were “sustained while in 25 the course and scope of his employment” before he quit in July 2011. AR 435. 26 Plaintiff was referred for additional tests, physical therapy, acupuncture, 27 shockwave therapy, and chiropractic treatment; he was also prescribed various 28 creams and patches as pain medication. AR 435-36. 3 1 Dr. Johnson evaluated Plaintiff again one month later in July 2014. AR 443. 2 Plaintiff still reported his pain as 7/10 and the ROM of his cervical spine had 3 slightly decreased, but he “denied any problems with the medications.” AR 444- 4 45. Dr. Johnson opined that Plaintiff could return to work immediately if his 5 employer could accommodate a restriction against “prolonged standing, sitting, or 6 walking” and other limitations. AR 449. 7 Dr. Johnson continued to see Plaintiff approximately monthly. See AR 451 8 (August 2014); AR 458 (September 2014); AR 460 (October 2014); AR 466 9 (December 2014); AR 471 (January 2015); AR 477 (February 2015); AR 483 10 (March 2015); AR 489 (April 2015); AR 495 (May 2015); AR 501 (July 2015). At 11 all of these appointments, Plaintiff’s ROM and motor strength stayed about the 12 same. He reported that the medications provided “temporary relief” and helped 13 him sleep. He consistently denied medication side effects.2 Most significantly, 14 over this one-year period, Plaintiff’s reported pain level dropped from 7/10 (AR 15 444) to 6/10 (AR 460), 5/10 (AR 477), 4/10 (AR 489), and finally to 3/10 (AR 16 501). Even on July 8, 2015, however, when Plaintiff’s neck and back pain were 17 3/10, Dr. Johnson instructed him to remain off work. AR 501, 506. 18 19 About two weeks later on July 28, 2015, Dr. Johnson wrote the following opinion letter: 20 It is my medical opinion that [Plaintiff] be restricted from sitting and 21 or standing for more than 3 hours at a time per day due to disc 22 herniations … in his neck … and lower back … as a provision of 23 medical treatment. Failure to provide such restriction would at least 24 impede [Plaintiff’s] recovery process, if not put him in risk of 25 26 27 28 Compare, in July 2015, he told the Social Security Administration that his medications caused “grogginess every morning and some dizziness.” AR 354. In late 2015, he described his medication side effects as “unknown.” AR 362. 2 4 1 2 3 deterioration of his medical condition. AR 636. Also in July 2015, Plaintiff completed a patient history questionnaire (AR 4 602) and pain questionnaire (AR 353). He described having “shooting pain” every 5 day, migraine headaches twice a week, and pain 51-75% of the time. AR 604. He 6 checked boxes indicating that his condition affected his ability to sit and engage in 7 postural activities, but he did not indicate impaired standing or walking. AR 605. 8 He reported taking aspirin and Naprosyn (the brand name of naproxen) for pain. 9 AR 606; see also AR 353 (he was taking 3 Advils/day and over-the-counter 10 sleeping pills, a regimen he had followed for 8 years). During 2014 and 2015, it 11 does not appear that Plaintiff was prescribed narcotic pain medication. See AR 12 643 (list of prescriptions filled at CVS from 6/11/14 through 6/10/16 includes no 13 prescription pain medication); AR 644-47 (list of prescriptions filled at Rite Aid 14 from 1/12/15 through 6/10/16 includes only one pain medication: ibuprofen 15 prescribed by emergency room physician Dr. Vandordaklou in October 2015). 16 Plaintiff did not see Dr. Johnson again after July 2015. On October 7, 2015, 17 Plaintiff saw Dr. Edwin Mirzabeigi through the workers’ compensation system for 18 an “initial” evaluation. AR 703. Plaintiff still rated his neck and back pain as only 19 3/10, consistent with his last reports to Dr. Johnson in July 2015. AR 705. 20 On October 22, 2015, the Social Security Administration denied his 21 22 application for benefits. AR 198. On October 27, 2015, at 8 a.m., Plaintiff visited the Long Beach Memorial 23 Hospital emergency room (“ER”) complaining of back pain. AR 799. He left 24 against medical advice at about 8:15 a.m., saying that he wanted to find a hospital 25 that would “given him an epidural shot.” AR 801. 26 On the morning of October 28, 2015, Plaintiff returned to the ER. AR 661, 27 803. He reported that his treatment from Dr. Johnson, including 28 “patches/ointments,” provided him “minimal relief.” AR 805. Results of a 5 1 straight-leg raising test, however, were negative. AR 662, 807. He received 2 prescriptions for Motrin and Valium, and Dr. Vandordaklou authorized a Toradol 3 injection. AR 653-55. Prior to those prescriptions, Plaintiff’s pain medications 4 were Tylenol and aspirin. Id. Plaintiff exhibited “mild improvement after 5 medication” and was discharged to follow up with his primary care doctor. AR 6 663. 7 Less than two weeks later on November 11, 2015, Plaintiff saw Dr. 8 Mirzabeigi again. AR 696. Plaintiff rated his neck and back pain as 3/10. Id. Yet 9 two days later on November 13, 2015, Plaintiff returned to the ER requesting 10 11 another Toradol injection. AR 812. He was “given Toradol with relief.” AR 815. About one month later on December 11, 2015, Plaintiff saw Dr. Mirzabeigi 12 for a third time. AR 680. This time, Plaintiff rated his neck pain as 9/10 and his 13 back pain as 7/10. Id. The results of his physical examination did not change 14 significantly, and nothing in the progress note comments on or attempts to explain 15 the significant increase in reported pain. 16 A few days later on December 14, 2015, Plaintiff returned to the ER 17 complaining of neck and right ear pain. AR 749. His prescriptions at that time 18 included Tylenol, aspirin, ibuprofen, and Valium. AR 750. He requested another 19 injection like the one he received during his last ER visit and again had “pain relief 20 with Toradol.” AR 751. 21 Plaintiff returned to the ER in January 2016. AR 759. This time he was 22 prescribed Norco, Flexeril, and ibuprofen. AR 762. He visited the ER again in 23 March 2016 complaining of lower back pain “not relieved with ibuprofen.” AR 24 920. “He was requesting toradol which has helped him in the past so toradol … 25 was ordered….” AR 923. 26 In May 2016, Plaintiff went to an urgent care facility complaining of back 27 pain, neck pain, and headaches. AR 916, 933. He told them that he “need toradol 28 shots every month to help him with his pain.” AR 917. He also reported that his 6 1 primary care doctor, Dr. Meka at Amistad Medical Clinic, had referred him to pain 2 management, “but when he went, he saw too many people there and left.”3 AR 3 354, 917. 4 In July 2016, Plaintiff saw Dr. Elkhoury for an initial pain care evaluation. 5 AR 952. Plaintiff described his spine and neck pain as 8/10. Id. He was directed 6 to start “an active home exercise program.” Id. Plaintiff reported that the pain 7 relief associated with his medications was “clinically significant.” AR 953. 8 In October 2017, Plaintiff described his pain medication regimen as “extra- 9 strength Excedrin for neck and back pain and migraines, along with Advil as well 10 as prescribed medications and shots at Long Beach Memorial Medical Center for 11 severe neck/back pain.” AR 412. 12 In December 2017, Plaintiff visited the ER complaining of ear pain 13 following a cold. AR 33. A physical examination revealed a normal range of neck 14 motion, normal range of back motion with some tenderness, and normal motor 15 strength in his legs. AR 35. 16 In January 2018, he went to the ER complaining of chronic pain at level 8/10 17 and requesting another Toradol injection. AR 58-59, 61. He told the ER he was 18 taking Motrin at home. AR 59. On February 8, 2018 (i.e., just a few days before 19 the ALJ hearing on February 15), Plaintiff went to Kaiser for physical therapy. AR 20 1000. He told Kaiser that he “currently has a gym membership” and wanted to 21 know what exercises to do at the gym. Id. 22 On February 27, 2018, he was scheduled to have another steroid injection in 23 his back, but the procedure was canceled when the Kaiser doctors did not receive 24 ordered MRIs in advance. AR 1015. 25 26 27 28 There are no records in the AR from Amistad Medical Clinic. Pharmacy records identify the prescriber as “Meena K. Meka.” AR 651. Records from Long Beach Memorial Health System identify “Ajay G. Meka” as Plaintiff’s primary care doctor. AR 899. 3 7 1 In April and May 2018, Plaintiff went to the ER for Toradol shots. AR 20- 2 21, 30. In May, the hospital staff indicated that he could return to work the next 3 day. AR 23. 4 5 2. The ALJ’s Assessment of Dr. Johnson’s July 2015 Opinion. The ALJ wrote, “Dr. Johnson’s opinion that the claimant should be restricted 6 from sitting and standing more than three hours at a time per day due to disc 7 herniation, is again inconsistent with the claimant’s report of his own activities of 8 daily living. It is inconsistent with the medical evidence of record as a whole (Ex. 9 10F [Dr. Johnson’s opinion letter at AR 636]).” AR 75-76. The ALJ discredited 10 Dr. Johnson’s opinion that Plaintiff should remain off work in 2015 as 11 “inconsistent with the claimant’s conservative treatment measures” and with 12 “claimant’s workout routine of lifting weights and walking an hour on the 13 treadmill.” AR 75. 14 15 3. Analysis of Claimed Error. Plaintiff argues that the ALJ’s three reasons lack substantial evidentiary 16 support. Plaintiff argues that Dr. Johnson’s opinion is not inconsistent with the 17 medical evidence, citing three cervical and three lumbar MRI studies showing 18 various effects of degenerative disc disease. (JS at 3, citing AR 738-43 [C-spine 19 06/19/2014]; AR 730-33 [C-spine 01/07/2015]; AR 716-19 [C-spine 07/29/15]; 20 AR 744-47 [L-spine 06/19/2014]; AR 713-15 [L-spine 07/29/2015]; AR 734-37 21 [L-spine 01/07/2019].) Plaintiff argues that he has not received conservative 22 treatment, citing the Toradol injections. (JS at 9.) Finally, Plaintiff argues that Dr. 23 Johnson’s opinion is not inconsistent with his workout routine, because he can lift 24 light weights and walk on a treadmill without sitting or standing for more than 25 three hours. (JS at 6.) 26 Dr. Johnson’s treating notes from June 2014 to July 2015 show steady 27 improvement in Plaintiff’s pain levels. AR 431, 444, 460, 477, 489, 501. Just 28 days before Dr. Johnson wrote the disputed July 2015 opinion letter, Plaintiff rated 8 1 his neck and back pain as only 3/10, and he still rated his pain at 3/10 in November 2 2015. AR 501, 705, 696. These records support the ALJ’s finding of 3 inconsistency with the medical evidence. Indeed, all three of the cervical MRIs 4 and two of the lumbar MRIs were done before July 29, 2015 (i.e., about the time 5 Dr. Johnson wrote his opinion letter and stopped treating Plaintiff). Regardless of 6 what physical abnormalities these MRIs show, they correspond in time with 7 Plaintiff’s reports that his neck and back pain had improved from 7/10 to 3/10 and 8 stayed at 3/10 from July 2015 to November 2015. 9 Dr. Johnson’s treating notes also describe conservative treatment, such as 10 acupuncture and patches and ointments for pain relief. AR 435-36. While Plaintiff 11 later requested more aggressive treatment from ER doctors in the form of Toradol 12 injections, the ALJ did not error in citing the inconsistency between Dr. Johnson’s 13 conservative treatment recommendations and his opinion of Plaintiff’s functional 14 limitations. 15 Regarding the third reason, Plaintiff testified in 2018 that he went to the gym 16 “a lot.” AR 118. He walked to a gym located less than a quarter mile from his 17 friend’s house where he lived. AR 124. At the gym, he walked on the treadmill 18 “no more than an hour or two hours” at a time. AR 121. He described walking 19 “about a mile a day” on the treadmill. AR 366. He also lifted “very light weights 20 … maybe 10 or 15 pounds dumbbells on each hand.” AR 123. He testified that he 21 could lift “maybe 15 to 20 pounds max.” AR 122. The ALJ could rationally have 22 construed this testimony about walking to the gym, walking up to two hours on the 23 treadmill, lifting weights, and walking home, as inconsistent with a medical 24 opinion prohibiting Plaintiff from standing for more than three hours. 25 Finally, any error in addressing Dr. Johnson’s opinion appears harmless. Dr. 26 Johnson opined that Plaintiff was restricted against sitting or standing “for more 27 than 3 hours at a time per day.” AR 636 (emphasis added). Dr. Johnson offered 28 no opinion concerning how much total time Plaintiff could spend standing or 9 1 walking during an 8-hour workday. Plaintiff, who still bears the burden of proof at 2 step four of the sequential evaluation process, has not cited any evidence 3 suggesting that he could not perform his past relevant work by alternating between 4 sitting and standing and taking normal breaks. His primary duties of using a 5 computer and talking on the phone can be done either sitting or standing using 6 common equipment such as a cordless or cellular telephone and a higher and lower 7 surface for a laptop computer, such as a counter and a table or an adjustable 8 workstation. 9 ISSUE TWO: Plaintiff’s Mental Impairments. 10 11 1. Summary of Mental Impairment Evidence. In June 2015, Plaintiff did not identify mental illness as a basis for his 12 application for disability benefits. AR 134, 339. In a July 10, 2015 workers’ 13 compensation history form, Plaintiff indicated that he was not suffering from any 14 mental illness. AR 606. 15 A few days later on July 31, 2015, chiropractor Harold Iseke recommended 16 that Plaintiff use workers’ compensation insurance benefits for a psychiatric 17 consultation due to pain-related stress. AR 594, 628 (referral to psychologist 18 Grewal). On August 6, 2015, Plaintiff visited therapist Enrico Balcos at Harbor 19 Psychologist. AR 615-17. He told Dr. Balcos that he was employed at a loan 20 office and lived alone.4 AR 618. Dr. Balcos diagnosed him as suffering from 21 major depression. AR 619. This is the only treating record from Dr. Balcos. 22 On August 24, 2015 (per a fax timestamp), Plaintiff wrote a note 23 memorializing that he was experiencing anxiety and extreme depression. AR 614. 24 He wrote that he had been diagnosed with attention deficit hyperactivity disorder 25 26 27 28 Compare, Plaintiff testified that he has not worked since leaving AmeriSave in 2011. AR 119. He tried to return to working 3 times in 2014, but each attempt lasted no more than one month. AR 331. He has lived with his friend R. H. since at least July 2015. AR 602, 610. 4 10 1 (“ADHD”) by psychologist Dr. Benjamin Stepanoff while psychiatrist Dr. Kenneth 2 Abjelina had diagnosed him with anxiety and depression. Id. Both of these 3 medical sources work for the Advances in Mental Health and Addictions 4 Treatment Center, per their business cards. Id. In September 2015, Dr. Stepanoff 5 wrote a letter that says nothing about ADHD, but instead states that he was treating 6 Plaintiff for bipolar disorder while Dr. Abjelina was providing medication support. 7 AR 638; see also AR 652 (on 10/12/15, Dr. Abjelina prescribed bupropion, the 8 generic name for Wellbutrin, an antidepressant). 9 In October 2015, Plaintiff underwent a psychiatric evaluation at CNS 10 Network (medical source’s name illegible). AR 631. At the time, he was taking 11 Wellbutrin and Paxil. Id. The diagnostic impression was major depressive 12 disorder. AR 632. In November 2015, Dr. Meena Meka prescribed Trazadone, an 13 antidepressant. AR 645. 14 On December 14, 2015, ER staff observed that Plaintiff was “negative for 15 depression.” AR 750. On January 6, 2016, Plaintiff reported to the SSA he was 16 taking Wellbutrin for depression. AR 368. On January 11, 2016, however, 17 Plaintiff denied depression to ER staff. AR 760. They observed that his “speech, 18 mood and behavior” were “appropriate.” AR 761. In March 2016, he again denied 19 depression at the ER. AR 921. 20 In May 2016, Plaintiff went to an urgent care facility complaining of back 21 pain, neck pain, and headaches. AR 916. Staff observed that he “seemed anxious” 22 and “slightly manic.” AR 917. 23 On June 28, 2016, Plaintiff had an appointment with Dr. Sandoval at 24 Progeny Psychiatric Group. AR 951. He was diagnosed as suffering from 25 depression, anxiety, and insomnia. Id. There are no other treating records from 26 Dr. Sandoval in the AR. As of June 2016, however, Dr. Meka had prescribed 27 bupropion and Dr. Annabel Walker had prescribed hydroxyzine, a medication used 28 to treat anxiety. AR 643. 11 1 In July 2016, Plaintiff underwent a cognitive assessment as part of pain 2 management. AR 952. The assessment “revealed no abnormal findings. 3 [Plaintiff’s] affect was appropriate. The patient’s mood was cooperative and 4 pleasant throughout our session. He was alert and oriented ….” AR 955. 5 6 7 In December 2017, the ER staff assessed, “Psychiatric exam normal.” AR 35. Plaintiff again denied anxiety and depression. AR 36. At the hearing in February 2018, when asked why he could not work, 8 Plaintiff testified that in addition to his neck and back pain, he cannot focus or 9 concentrate; he has severe depression, anxiety, and migraine headaches 5 or 6 10 times a week. AR 120, 125-27. He testified that he had received a prescription for 11 bipolar medication, but it made him nauseous. AR 128. 12 On February 24, 2018 (just 9 days after the February 15 hearing), Plaintiff 13 told the Kaiser ER he had attempted suicide the night before by taking 8 over-the- 14 counter antihistamine pills; he told one person at Kaiser that he took the pills 15 because he could not bear his chronic neck and back pain anymore, but he told 16 another person that he took the pills because he felt “worthless” and “useless.” AR 17 44-45, 53-54, 1010. Plaintiff told the ER staff that “there has been no change in 18 [his] symptoms over time; are constant.” AR 48. He also reported that he was 19 “independent with ADLS [activities of daily living].”5 AR 53. He had a normal 20 ROM in his neck, back, and lower extremities. AR 48. After receiving a Toradol 21 injection and other treatment, he told ER staff that he was feeling better and 22 wanted to leave “to go to the gym, use the treadmill and watch sports on TV.” AR 23 54-55. The ER determined he was not a danger to self or others. AR 1011. He 24 was transported to Kaiser’s psychiatric ward where, according to Plaintiff, he 25 26 27 28 Compare, he told the Social Security Administration that he had “marked restrictions in personal care and activities of daily life.” AR 375. 5 12 1 2 3 stayed for three days before discharge. AR 282.6 The state agency medical consultants both opined that Plaintiff’s mental impairments were non-severe. AR 142, 173-74. 4 5 2. Special Technique for Evaluating Mental Impairments. To determine the severity of mental impairments at step two in the 6 sequential evaluation process, the ALJ must consider how well the claimant 7 functions in four areas: (1) understanding, remembering, or applying information; 8 (2) interacting with others; (3) concentrating, persisting, or maintaining pace; and 9 (4) adapting or managing oneself. 20 C.F.R. §§ 404.1520a(c)(3), 416.920a(c)(3). 10 A claimant with only “none” or “mild” limitations in these areas does not have a 11 severe mental impairment. 20 C.F.R. §§ 404.1520a(d)(1), 416.920a(d)(1). 12 The regulations require that ALJs document their application of this special 13 technique in certain ways. 20 C.F.R. §§ 404.1520a(e), 416.920a(e). Specifically, 14 “the written decision must incorporate the pertinent findings and conclusions based 15 on the technique. The decision must show the significant history, including 16 examination and laboratory findings, and the functional limitations that were 17 considered in reaching a conclusion about the severity of the mental impairment(s). 18 The decision must include a specific finding as to the degree of limitation in each 19 of the functional areas described in paragraph (c) of this section.” 20 C.F.R. 20 §§ 404.1520a(e)(4), 416.920a(e)(4). 21 22 3. The ALJ’s Application of the Special Technique. The ALJ addressed each of the four functional areas finding that Plaintiff 23 had no limitation in the areas of understanding, remembering, or applying 24 information and interacting with others. AR 71. The ALJ found him mildly 25 limited in the areas of adapting/managing himself and maintaining concentration, 26 27 28 The Court has not found any records in the AR to support Plaintiff’s claim that he was in the psychiatric ward for several days. 6 13 1 2 persistence, or pace. Id. As supporting evidence, the ALJ cited Plaintiff’s testimony that he deals 3 with headaches by going to the gym (citing AR 126) and that he repeatedly denied 4 depression during examinations at the ER (citing AR 879). AR 71. The ALJ also 5 noted that Plaintiff had undergone several mental health examinations in which the 6 findings were “normal overall” (citing AR 855 [“ mood and affect normal”] and 7 AR 918 [“ mood and affect normal. … Normal personal interaction during the 8 interview. Exhibits good judgment.”]). AR 71. As evidence of Plaintiff’s 9 unimpaired cognitive functioning, the ALJ cited the fact that he could drive and 10 ride the train independently. Id. As evidence of his social skills, the ALJ cited the 11 fact that he had lived with a roommate for many years. Id.; AR 27 (Plaintiff could 12 ask his roommate R. H. for help). As evidence of his self-management skills, the 13 ALJ cited his ability to care for his personal needs independently and visit the gym 14 regularly. Id. 15 4. Analysis of Claimed Error. 16 Plaintiff argues that the ALJ committed legal error by failing to discuss two 17 mental status examinations with slightly abnormal findings at AR 618-19 and 632. 18 (JS at 10.) Specifically, in August 2015 during his one and only appointment with 19 Dr. Balcos, Dr. Balcos noted an “appropriate” appearance, “cooperative” attitude, 20 an “organized/intact” thought process with “soft” speech and “anxious” mood. AR 21 618. Dr. Balcos noted “mildly” impaired concentration and judgment with “good” 22 insight and unimpaired self-perception. AR 619. In October 2015, an unidentified 23 medical source at CNS Network noted “depressed” mood, “average” intellect, 24 “appropriate” vocabulary, “fair” memory, and “fair” judgment. AR 632. 25 First, Plaintiff cites no legal authority for the premise that an ALJ must 26 discuss every piece of mental health evidence when applying the special technique 27 at step two of the sequential evaluation process. Here, the ALJ complied with the 28 procedural requirements imposed by the regulations by making findings in all four 14 1 2 functional areas and citing supporting evidence. AR 71. To the extent Plaintiff contends that the ALJ erred by failing to give reasons 3 for rejecting these two mental status examinations, the ALJ did not reject them. 4 The ALJ agreed with their content, finding that Plaintiff suffers from depression 5 and anxiety as medically determinable impairments that caused some mild 6 functional impairment. Id. 7 The cited records do not demonstrate that the ALJ’s findings for any of the 8 four functional areas lack substantial evidentiary support. To the contrary, they are 9 consistent with the ALJ’s findings of only mild limitations in the area of 10 concentration and self-management with no limitations affecting cognition or 11 social interactions. AR 71. Plaintiff has failed to demonstrate that the ALJ 12 committed legal error by finding his mental impairments non-severe. 13 To the extent Plaintiff claims that the ALJ erred by adopting an RFC that 14 fails to accommodate the mild functional impairments caused by his mental illness, 15 Plaintiff failed to develop this argument by identifying any required 16 accommodation(s) and citing supporting medical evidence. As a result, he failed 17 to carry his burden of demonstrating legal error. 18 ISSUE THREE: Plaintiff’s Subjective Symptom Testimony. 19 1. Rules for Evaluating Subjective Symptom Testimony. 20 An ALJ’s assessment of symptom severity and claimant credibility is 21 entitled to “great weight.” Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989) 22 (quoting Green v. Heckler, 803 F.2d 528, 532 (9th Cir. 1986)). “[T]he ALJ is ‘not 23 required to believe every allegation of disabling pain, or else disability benefits 24 would be available for the asking, a result plainly contrary to 42 U.S.C. 25 § 423(d)(5)(A).’” Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting 26 Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). 27 If the ALJ finds testimony as to the severity of a claimant’s pain and 28 impairments is unreliable, the ALJ must evaluate subjective symptom testimony 15 1 “with findings sufficiently specific to permit the court to conclude that the ALJ did 2 not arbitrarily discredit claimant’s testimony.” Thomas v. Barnhart, 278 F.3d 947, 3 958 (9th Cir. 2002). In doing so, the ALJ may consider testimony from physicians 4 “concerning the nature, severity, and effect of the symptoms of which [the 5 claimant] complains.” Id. at 959. If the ALJ’s finding is supported by substantial 6 evidence in the record, courts may not engage in second-guessing. Id. 7 In evaluating a claimant’s subjective symptom testimony, the ALJ engages 8 in a two-step analysis. Lingenfelter, 504 F.3d at 1035-36. “First, the ALJ must 9 determine whether the claimant has presented objective medical evidence of an 10 underlying impairment [that] could reasonably be expected to produce the pain or 11 other symptoms alleged.” Id. at 1036. If so, the ALJ may not reject a claimant’s 12 testimony “simply because there is no showing that the impairment can reasonably 13 produce the degree of symptom alleged.” Smolen v. Chater, 80 F.3d 1273, 1282 14 (9th Cir. 1996). 15 Second, if the claimant meets the first test, the ALJ may discredit the 16 claimant’s subjective symptom testimony only if he makes specific findings that 17 support the conclusion. Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). 18 Absent a finding or affirmative evidence of malingering, the ALJ must provide 19 “clear and convincing” reasons for rejecting the claimant’s testimony. Lester v. 20 Chater, 81 F.3d 821, 834 (9th Cir. 1995); Ghanim v. Colvin, 763 F.3d 1154, 1163 21 & n.9 (9th Cir. 2014). 22 23 2. The ALJ’s Reasons for Discrediting Plaintiff’s Testimony. The ALJ gave at least four reasons for discrediting Plaintiff’s testimony 24 concerning the intensity, persistence, and limiting effects of his pain: (1) his 25 testimony lacked objective medical support; (2) Plaintiff engaged in activities 26 inconsistent with his claimed degree of limitation, (3) Plaintiff received 27 conservative treatment, which improved his symptoms; and (4) Plaintiff made 28 inconsistent statements about his limitations. AR 71, 73, 75. As explained below, 16 1 these are clear and convincing reasons supported by substantial evidence. 2 3 a. Reason One: Lack of Objective Evidence. “Although lack of medical evidence cannot form the sole basis for 4 discounting pain testimony,” ALJs may consider that factor in their analysis. 5 Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). 6 As discussed above, Dr. Johnson’s treating records reflect steady 7 improvement of Plaintiff’s pain level from 7/10 to 3/10 between June 2014 and 8 July 2015 with conservative treatment. AR 74 (ALJ cited Dr. Johnson’s records as 9 inconsistent with Plaintiff’s claimed degree of impairment). In later years of his 10 claimed period of disability, ER staff observed a normal ROM in his neck and 11 back, no impaired motor strength, and negative straight-leg raising tests. AR 35, 12 662. This is inconsistent with Plaintiff’s claims of constant, disabling pain and his 13 testimony that he stopped driving, in part, because of trouble turning his neck. AR 14 124, 353. 15 While Plaintiff testified that he suffers from bipolar disease (AR 127, 284), 16 the ALJ noted, “His treatment of bipolar disorder has been minimal and could not 17 be medically determinable with the evidence provided.” AR 71. The AR contains 18 a letter from psychologist Dr. Stepanoff stating that he treated Plaintiff for bipolar 19 disorder, but there are no treating records. AR 638. The ALJ gave Dr. Stepanoff’s 20 opinion “no weight” because “there was no evidence of ongoing mental health 21 treatment consistent” with an opinion of complete disability. AR 72. The ALJ did 22 not err in finding a lack of medical evidence to support Plaintiff’s claim that he is 23 so “mentally sick” with bipolar disease, severe depression, and anxiety that he 24 “absolutely cannot function as a normal human being.” AR 284. 25 26 b. Reason Two: Inconsistency with Activities. In January 2016, Plaintiff completed an exertion questionnaire. AR 366. He 27 reported that he was homeless, but a friend living on Eucalyptus Avenue in Long 28 Beach let him sleep on the couch; sometimes he slept in his car. AR 366, 384. At 17 1 that time, he tried “to walk about a mile a day on the treadmill,” but he could not 2 do “any bending or weight lifting.” AR 366. He added a handwritten note saying, 3 “3 doctors notes state I cannot sit or stand more than 2 [hours].” AR at 368. 4 At the hearing in February 2018, Plaintiff testified that he still lived with his 5 friend on Eucalyptus Avenue and was “sleeping on the couch.” AR 117. He had a 6 driver’s license, but he opted to “take the train everywhere” because his car had 7 been nonoperational for approximately three years and because he had “trouble 8 turning his neck” and “unbelievable anxiety” in traffic.7 AR 118, 124. He testified 9 that a typical day involved going to the gym, using the treadmill, and lifting 10 weights. AR 118, 123. “Once in a blue moon” he would go to the beach, taking 11 the train from Long Beach to Santa Monica. AR 118, 122. He also sometimes 12 went to Denny’s restaurant and a church called Agape. AR 27. He could use a 13 cellphone, ride in a taxi, and buy meals at fast food restaurants. AR 54, 62, 367. 14 The ALJ did not commit legal error in concluding that these substantial daily 15 activities were inconsistent with Plaintiff’s claim of total disability and “continual 16 shooting pains,” “everyday shooting pains continually during each day,” “constant 17 discomfort,” alleged inability to “pick[] items up” without assistance, constant 9 18 out of 10 pain, complete lack of “motivation or energy to do normal daily 19 functions,” loss of “all ability to focus or concentrate,” and inability “to function as 20 a normal human being.” AR 283-84, 353, 355. 21 22 c. Reason Three: Conservative Treatment and Improvement. While the parties dispute in the briefing whether certain treatment is, or is 23 not, conservative, the real issue is whether the recommended treatment was more 24 conservative than one would expect given the level of Plaintiff’s claimed 25 26 27 28 He was still driving in July 2015 (AR 354-55) and driving to medical appointments in March 2016. AR 920. In late December 2017—i.e., about two months before the hearing—ER staff noted, “Driving self, unaccompanied.” AR 37. 7 18 1 functional limitations and the nature of his underlying impairments. See Parra v. 2 Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (noting that evidence of conservative 3 treatment “is sufficient to discount a claimant’s testimony regarding severity of an 4 impairment”); Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) (“[T]he ALJ 5 [appropriately] noted the absence of medical treatment for claimant’s back 6 problem . . . suggesting that if the claimant had actually been suffering from the 7 debilitating pain she claimed she had, she would have sought medical treatment 8 during that time.”). 9 As discussed above, Plaintiff’s pain improved significantly in 2014 and 2015 10 under the conservative care of Dr. Johnson. During much of the period of claimed 11 disability, Plaintiff was not taking any narcotic pain medication and minimal 12 prescription pain medication. While Plaintiff started going to the ER to request 13 Toradol shots after the initial denial of his application for disability benefits, no 14 primary treating doctor recommended that course of treatment, and the various ER 15 doctors and nurses who authorized the shots did not observe any significant 16 functional limitations. Neither party cites any surgical consultations or 17 recommendations for surgery in the AR, and Plaintiff’s degenerative disc disease is 18 a condition sometimes amenable to surgical intervention. The ALJ did not err in 19 concluding that this course of treatment was more conservative than one would 20 expect for a person suffering from disabling back and neck pain. 21 22 d. Reason Four: Inconsistent Statements. The ALJ asserted that Plaintiff made inconsistent statements by claiming 23 that “he could never lift over 10 pounds” while admitting that he went to the gym 24 to lift weights. AR 76. The ALJ did not cite to where Plaintiff said he could never 25 lift more than 10 pounds. The ALJ may have intended to reference AR 609, but 26 that questionnaire asked Plaintiff to describe the lifting requirements of his work 27 pre-injury, and he checked “occasionally” up to 3 hours of lifting up to 10 pounds 28 and “never” more than 10 pounds. At the hearing, Plaintiff testified that he lifted 19 1 “10 or 15 pound dumbbells” with each hand. AR 123. In an earlier questionnaire, 2 he stated that he could not do any weightlifting, but he also stated that he could lift 3 “less than 20 pounds,” which is consistent with his hearing testimony. AR 367. 4 Plaintiff does not appear to have made materially inconsistent statements about his 5 lifting abilities. 6 The ALJ also cited Plaintiff’s testimony about his sitting and standing 7 abilities as inconsistent with his regular gym workout. AR 76. Plaintiff reported 8 that he experienced pain “anytime [he would] sit or stand more than approx. 2 9 hours.” AR 353. In the same questionnaire, he said, “Cannot sit or stand for more 10 than a few hours.” AR 355. He clarified that he could stand for no more than 1 11 hour and sit for no more than 2 hours at a time. Id. He also stated that he could 12 only drive “maybe one hour or so,” but he could not “sit or stand more than 2 13 hours.” AR 367-68. At the hearing, he testified that he could sit for a “maximum 14 [of] two hours or so” before needed to get up. AR 121. When asked about 15 standing, he referenced the fact that he used the treadmill for one or two hours at a 16 time. Id. He described walking to the gym and then walking “about a mile a day” 17 on the treadmill. AR 124, 366. Elsewhere, he stated that he could only walk “a 18 few blocks.” AR 355. 19 Plaintiff’s statements are roughly consistent with each other. As discussed 20 above, Plaintiff’s ability to walk to the gym, use the treadmill for up to 2 hours, lift 21 weights, and then walk home demonstrated that he could stand or walk for more 22 than 3 hours total in an 8-hour day, but Plaintiff appears to be describing his 23 maximum exertional abilities without taking a break, making it difficult to assess 24 whether his testimony is truly inconsistent with his gym routine. 25 The ALJ also noted that while Plaintiff testified that he suffers from “severe 26 depression” (AR 127), he “repeatedly denied having depression during his physical 27 examinations.” AR 71. As summarized above, Plaintiff did repeatedly deny 28 depression to ER staff in 2016 - 2018 (see AR 36, 750, 760, 921) at the same time 20 1 that he was telling the Social Security Administration he suffered from depression 2 (see AR 127, 282, 614). He told the Social Security Administration that Dr. Meka 3 was treating him for severe depression (AR 411), but there are no such treating 4 records in the AR. Plaintiff also testified that he suffers from bipolar disease (AR 5 127, 284), but the ALJ found this inconsistent with the lack of treatment records. 6 AR 71. The ALJ’s findings that Plaintiff made inconsistent statements about his 7 mental health are supported by substantial evidence and provide a fourth clear and 8 convincing reason to discount Plaintiff’s subjective symptom testimony. 9 V. 10 CONCLUSION 11 For the reasons stated above, IT IS ORDERED that judgment shall be 12 entered AFFIRMING the decision of the Commissioner. 13 14 15 16 17 DATED: July 08, 2019 ______________________________ KAREN E. SCOTT United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 21
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