Phillip Davis v. Carolyn W Colvin, No. 5:2015cv02020 - Document 23 (C.D. Cal. 2016)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Douglas F. McCormick: For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. See document for further information. (lwag)
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Phillip Davis v. Carolyn W Colvin Doc. 23 1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 PHILLIP DAVIS, Plaintiff, 12 13 14 15 16 Case No. ED CV 15-02020-DFM MEMORANDUM OPINION AND ORDER v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Respondent. 17 18 19 Plaintiff Phillip Davis (“Plaintiff”) appeals from the final decision of the 20 Administrative Law Judge (“ALJ”) denying his applications for Social 21 Security disability benefits. Because the ALJ’s decision was supported by 22 substantial evidence in the record, the Commissioner’s decision is affirmed and 23 the matter is dismissed with prejudice. 24 I. 25 BACKGROUND 26 Plaintiff filed an application for Social Security disability insurance 27 benefits (“DIB”) and supplemental security income (“SSI”) on August 23, 28 2010, alleging disability beginning December 19, 2009. Administrative Record Dockets.Justia.com 1 (“AR”) 341-44. After Plaintiff’s application was denied, he requested a hearing 2 before an ALJ. AR 170-72. On March 12, 2012, April 17, 2014, and September 3 4, 2014, hearings were held on Plaintiff’s claim for benefits. AR 41-139. On 4 October 8, 2014, the ALJ issued an unfavorable decision. AR 14-38. In 5 reaching this decision, the ALJ found that Plaintiff had the severe impairments 6 of status-post fracture of the right patella, with numerous surgical procedures 7 to include a subtotal patellectomy, and lumbosacral degenerative disc disease, 8 with a history of back surgery in 2001. AR 23. The ALJ determined that 9 Plaintiff met the criteria of medical listing 1.03 from December 19, 2009 10 through December 31, 2011 because he could not, after he fractured his right 11 patella, return to effective ambulation within 12 months. AR 25-27. The ALJ 12 accordingly concluded that Plaintiff was disabled from December 19, 2009 13 through December 31, 2011. AR 27. The ALJ found that Plaintiff’s condition improved such that he no 14 15 longer met listing 1.03 as of January 1, 2012. AR 28. Beginning January 1, 16 2012, the ALJ found that Plaintiff had the RFC to perform less than the full 17 range of light work with the following additional limitations: 18 [Plaintiff] can lift, carry push, or pull 20 pounds occasionally and 19 10 pounds frequently; [Plaintiff] can stand and/or walk two hours 20 out of an eight-hour workday, with need to use a cane if out of the 21 immediate work area; [Plaintiff] can sit six hours out of an eight- 22 hour workday; [Plaintiff] cannot balance, stoop, crawl, or kneel, 23 but he can occasionally bend; [Plaintiff] cannot balance, stoop, 24 crawl, or kneel, but he can occasionally bend; [Plaintiff] cannot 25 climb ladders, ropes, or scaffolds; [Plaintiff] must avoid hazardous 26 machinery and unprotected heights; and [Plaintiff] cannot have 27 foot controls. 28 Id. 2 1 Based on a vocational expert’s testimony, the ALJ found that Plaintiff 2 could perform jobs that exist in significant numbers in the national economy 3 (e.g., information clerk, charge account clerk, and mail clerk) and therefore was 4 not disabled. AR 32. After the Appeals Council denied further review, this 5 action followed. AR 1-2. 6 II. 7 ISSUES PRESENTED 8 The parties dispute whether the ALJ (1) properly assessed Plaintiff’s 9 10 RFC; and (2) erroneously determined that Plaintiff was no longer disabled as of January 1, 2012. See Joint Stipulation (“JS”) at 4. 11 III. 12 DISCUSSION 13 14 A. The ALJ Properly Assessed Plaintiff’s RFC Plaintiff contends that the ALJ’s RFC assessment is not supported by 15 substantial evidence because it precludes Plaintiff from stooping, but states that 16 he can “occasionally bend.” JS at 5. Plaintiff claims that a restriction from 17 stooping is inconsistent with an ability to occasionally bend because bending 18 and stooping are the same for the purposes of disability analysis. JS at 6. 19 A claimant’s “residual functional capacity” is the most a claimant can 20 still do despite his limitations. Smolen v. Chater, 80 F.3d 1273, 1291 (9th Cir. 21 1996). An ALJ will assess a claimant’s RFC based on all the relevant evidence 22 of record and will consider all of the claimant’s medically determinable 23 impairments, whether found to be severe or not. 20 C.F.R. §§ 404.1545(a)(2), 24 (a)(3), (e), 416.945(a)(2), (e). An RFC assessment is ultimately an 25 administrative finding reserved to the Commissioner. 20 C.F.R. §§ 26 404.1527(d)(2), 416.927(d)(2). However, an RFC determination is based on all 27 of the relevant evidence, including the diagnoses, treatment, observations, and 28 opinions of medical sources, such as treating and examining physicians. Id. 3 1 The ALJ properly considered Plaintiff’s testimony and reviewed the 2 medical evidence in detail in reaching his conclusion that Plaintiff retained the 3 RFC to perform light work with some limitations. AR 28-31. The ALJ arrived 4 at his assessment following a detailed discussion of the objective medical 5 evidence. In particular, the ALJ noted the findings of the consulting examiner, 6 Concepcion Enriquez, M.D., who found fewer limitations than the ALJ’s RFC 7 assessment. AR 30. Dr. Enriquez opined that although Plaintiff had some 8 decreased range of motion in his right knee, he could perform light work with 9 occasional bending, stooping, and twisting, so long as he avoided kneeling on 10 the right knee. AR 603-04. The ALJ also noted the limitations offered by 11 Arnold Ostrow, M.D., an impartial medical expert. AR 30-31. The ALJ’s 12 limitations included greater limitations than those assessed by Dr. Ostrow 13 based on Plaintiff’s subjective complaints, such as the use of a cane outside of 14 the immediate work area. AR 31. Thus, in assessing Plaintiff’s RFC, the ALJ 15 gave Plaintiff the benefit of the doubt and found greater limitations than those 16 found in any medical opinion in the record. 17 Plaintiff’s argument that the restriction from stooping is incompatible 18 with an ability to occasionally bend is unfounded. “Stooping, kneeling, 19 crouching, and crawling are progressively more strenuous forms of bending 20 parts of the body, with crawling as a form of locomotion involving bending.” 21 SSR 85-15, 1985 WL 56857, *7 (Jan. 1, 1985). In particular, “stooping” is 22 defined as bending the body downward and forward by bending the spine at 23 the waist. Id. Thus, stooping requires some ability to bend. However, the 24 converse is not necessarily true; that is, bending does not require an ability to 25 stoop. Plaintiff provides no authority for the proposition that a preclusion from 26 stooping encompasses all types of bending, other than bending the spine at the 27 waist. Thus, Plaintiff fails to show that the RFC’s assessment of occasional 28 bending is irreconcilable with the inability to stoop. 4 Plaintiff also contends that Social Security Rulings 85-15 and 96-9p 1 2 direct a finding of disability when the claimant is limited to no stooping. JS at 3 13. However, Plaintiff misconstrues these rulings. SSR 85-15 holds that “if a 4 person can stoop occasionally (from very little to up to one-third of the time) in 5 order to lift objects, the sedentary and light occupational base is virtually 6 intact.” SSR 85-15, 1985 WL 56857, at *7. SSR 96-9p clarifies this statement 7 by explaining that a complete inability to stoop would erode the unskilled 8 sedentary occupational base such that “a finding that the individual is disabled 9 would usually apply.” SSR 96-9p, 1996 WL 374185, *8 (July 2, 1996) 10 (emphasis added). Therefore, contrary to Plaintiff’s assertion, the ALJ was not 11 bound to determine that Plaintiff was disabled based upon his inability to 12 stoop. 13 Even if the ALJ erred in assessing Plaintiff’s RFC, any error was 14 harmless. SSR 96-9p states that “a finding that an individual has the ability to 15 do less than a full range of sedentary work does not necessarily equate with a 16 decision of ‘disabled.’ . . . [C]onsideration must still be given to whether there 17 is other work in the national economy that the individual is able to do, 18 considering age, education, and work experience.” Id. at *1. Indeed, when 19 provided with a hypothetical question which included the limitations found in 20 the ALJ’s RFC assessment, the vocational expert in this case identified several 21 jobs at the sedentary level available in the national economy which Plaintiff 22 could perform despite his limitations. See AR 32-33, 81. Inclusion of the no 23 stooping limitation and occasional bending in Plaintiff’s RFC would not, 24 therefore, have affected the ALJ’s ultimate determination that Plaintiff was not 25 disabled. Thus, any possible error was harmless, and Plaintiff is not entitled to 26 relief. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (noting error 27 that does not affect ALJ’s decision is harmless). 28 /// 5 1 B. Substantial Evidence Supports the ALJ’s Finding that Plaintiff Was 2 Not Disabled as of January 1, 2012 3 The ALJ found that Plaintiff was entitled to a “closed period” of benefits 4 from December 19, 2009 through December 31, 2011, based on his finding 5 that Plaintiff’s medical condition improved on January 1, 2012. AR 25–27. 6 The ALJ explained that Plaintiff’s knee was injured on December 20, 7 2009, and that he had reconstructive surgery to repair it. AR 26-27. He was 8 placed in a knee immobilizer, continued to exhibit significant symptoms, and 9 as of August 10, 2010, he was using a wheelchair with a limited range of 10 motion. AR 26, 435. Plaintiff underwent physical therapy from August 2011 11 through November 2011, and showed improvement over time despite some 12 difficulty standing and sitting. AR 27, 512-48.1 Taking into account the 13 objective medical evidence and Plaintiff’s subjective complaints, which 14 indicate Plaintiff’s inability to ambulate effectively during this period, the ALJ 15 found that Plaintiff’s knee impairment met the reconstructive surgery listing 16 between December 2009 and December 2011. 17 The ALJ then evaluated the medical evidence after this period, and 18 found that as of January 1, 2012, Plaintiff showed improvement. AR 30. As 19 the ALJ noted, Plaintiff “continued to receive medication treatment, but there 20 was no evidence supporting an ongoing inability to ambulate effectively.” AR 21 30. Plaintiff received general care treatment from Dr. Eric Bekemeier through 22 23 24 25 26 27 28 1 Plaintiff’s last physical therapy record in November 2011 indicates that Plaintiff showed improvement in all four functional goals of the therapy program: ascending/descending 2 flights of stairs daily for household and community ambulation, walking for 1 hour daily with intermittent directional changes, jumping and landing for 1 hour daily 4 times a week, and sleeping without disruptions for 8 hours daily. AR 514. The record shows that Plaintiff had already met the goal of sleeping without disruptions for 8 hours daily and was improving toward the other three goals. Id. 6 1 December 2012, but the records show that this treatment mostly consisted of 2 medication management. See AR 553-70. “Impairments that can be controlled 3 effectively with medication are not disabling for the purpose of determining 4 eligibility for [disability] benefits.” Warre v. Comm’r of Soc. Sec. Admin., 439 5 F.3d 1001, 1006 (9th Cir. 2006); see also Parra v. Astrue, 481 F.3d 742, 750–51 6 (9th Cir. 2007) (finding “evidence of ‘conservative treatment’ is sufficient to 7 discount a claimant’s testimony regarding severity of an impairment”). 8 Plaintiff points to a January 10, 2012 record from Dr. Berkheimer indicating 9 that Plaintiff had a right leg limp, however no evidence at that time 10 demonstrates that Plaintiff needed a cane or wheelchair to ambulate. See AR 11 555-57. Additionally, on May 22, 2014, Dr. Concepcion opined that Plaintiff 12 could walk unassisted despite his continued limp on the right leg. AR 604. 13 The ALJ also noted that Plaintiff failed to seek treatment in 2013 or 14 2014. See Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (“Our case law is 15 clear that if a claimant complains about disabling pain but fails to seek 16 treatment, or fails to follow prescribed treatment, for the pain, an ALJ may use 17 such failure as a basis for finding the complaint unjustified or exaggerated.”). 18 Plaintiff primarily relies on medical records from physical therapy sessions in 19 2011 to demonstrate the severity of his symptoms post-reconstructive surgery. 20 However, Plaintiff’s last physical therapy session took place on November 9, 21 2011, and the progress notes indicate that Plaintiff was improving in all areas. 22 See AR 514. In particular, the progress note related to Plaintiff’s ability to walk 23 stated: “The patient reports a reduction in symptoms and improvement in 24 function of more than 50% since initiating therapy. Achieving the patient’s 25 goals with continued therapy is expected.” Id. After this visit, Plaintiff was 26 administratively discharged from physical therapy after not attending a session 27 in over 30 days. AR 512. Plaintiff attributed his failure to seek further 28 treatment to losing his Medi-Cal insurance, however, as the ALJ noted, 7 1 Plaintiff did not explain why he did not seek out low- or no-cost medical care 2 when his symptoms were improving. See Molina v. Astrue, 674 F.3d 1104, 3 1114 (9th Cir. 2012) (“Although [claimant] provided reasons for resisting 4 treatment, there was no medical evidence that . . . resistance was attributable 5 to her mental impairment rather than her own personal preference, and it was 6 reasonable for the ALJ to conclude that the ‘level or frequency of treatment 7 [was] inconsistent with the level of complaints.’”) (quoting SSR 96-7p). Finally, the ALJ pointed to the findings of several medical examiners 8 9 who found that Plaintiff could perform the demands of light work during the 10 relevant period. AR 30-31. Dr. Enriquez evaluated Plaintiff on May 22, 2014, 11 and found that he had some tenderness in the lumbosacral spine area, but 12 normal range of motion, no muscle spasm, and negative straight leg raises. AR 13 30, 603. Dr. Enriquez found that despite Plaintiff’s decreased range of motion 14 in the right knee, his scar was well healed and he had normal extension. AR 15 603–04. All other physical and neurological results were normal. AR 30, 602- 16 04. Similarly, Dr. Ostrow reviewed all the medical evidence of record and 17 concluded that Plaintiff could perform a reduced range of light work, including 18 occasional bending, stooping, and twisting, provided that he avoided kneeling 19 on his right knee. AR 30, 604. 2 Accordingly, substantial evidence supports the ALJ’s finding that 20 21 Plaintiff was not disabled as of January 1, 2012. 22 /// 23 24 25 26 27 28 2 Plaintiff points out that on February 22, 2012, Dr. Bekemeier noted that “surgeons won’t touch him or affect his legs anymore.” AR 639. Therefore, Plaintiff argues there was no more to be done for his knee. JS at 17. However, in this same report, Dr. Bekemeier also noted that Plaintiff’s symptoms were alleviated with continued physical therapy, no weight bearing, pain relievers, and rest. AR 639. 8 1 IV. 2 CONCLUSION 3 4 For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. 5 6 Dated: October 26, 2016 __________________________ DOUGLAS F. McCORMICK United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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