Harold Holcomb v. Nancy A. Berryhill, No. 5:2017cv01341 - Document 24 (C.D. Cal. 2018)
Court Description: MEMORANDUM DECISION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. Consistent with the foregoing and under sentence four of 42 U.S.C. § 405(g),10 IT IS ORDERED that judgment be entered AFFIRMING the Commissioner's decision, DENYING Plaintiff's request for remand, and DISMISSING this action with prejudice. (See Order for details) (bem)
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Harold Holcomb v. Nancy A. Berryhill Doc. 24 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 HAROLD HOLCOMB, Plaintiff, 12 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 Defendant. ) Case No. EDCV 17-1341-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) AFFIRMING COMMISSIONER ) ) ) ) ) ) ) 17 18 19 I. PROCEEDINGS Plaintiff seeks review of the Commissioner’s final decision 20 denying his application for supplemental security income benefits 21 (“SSI”). 22 undersigned under 28 U.S.C. § 636(c). 23 Court on the parties’ Joint Stipulation, filed April 30, 2018, 24 which the Court has taken under submission without oral argument. 25 For the reasons stated below, the Commissioner’s decision is 26 affirmed. The parties consented to the jurisdiction of the The matter is before the 27 28 1 Dockets.Justia.com 1 II. BACKGROUND 2 Plaintiff was born in 1962. 3 38.) 4 (Administrative Record (“AR”) He completed high school (AR 39) and has no relevant work experience (see AR 23, 40). 5 In August or September 2013,1 Plaintiff filed an application 6 for SSI, alleging that he had been disabled since August 8, 2013, 7 because of a stroke, difficulty speaking, diabetes, high blood 8 pressure, right-side paralysis, depression, and morbid obesity. 9 (AR 57, 61, 148.) After his application was denied initially and 10 on reconsideration, he requested a hearing before an 11 Administrative Law Judge. 12 held on March 30, 2016, at which Plaintiff, who was represented 13 by counsel, testified, as did a vocational expert. 14 145.) 15 Plaintiff not disabled. 16 Council review (AR 147), which was denied on May 3, 2017 (AR 1- 17 5). 18 III. STANDARD OF REVIEW 19 (AR 86, 95, 102-03.) A hearing was (AR 34-56, In a written decision issued May 6, 2016, the ALJ found (AR 17-33.) Plaintiff requested Appeals This action followed. Under 42 U.S.C. § 405(g), a district court may review the 20 Commissioner’s decision to deny benefits. 21 decision should be upheld if they are free of legal error and 22 supported by substantial evidence based on the record as a whole. 23 See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra 24 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). The ALJ’s findings and Substantial 25 26 27 28 1 Both the ALJ (AR 17) and the state-agency reviewers (AR 57) noted an application date of August 15, 2013. But the parties list the application date as September 6, 2013. (J. Stip. at 2; see also AR 148 (SSI application dated Sept. 6, 2013).) Under either date, the ALJ’s decision is affirmed. 2 1 evidence means such evidence as a reasonable person might accept 2 as adequate to support a conclusion. 3 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 4 It is more than a scintilla but less than a preponderance. 5 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 6 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 7 substantial evidence supports a finding, the reviewing court 8 “must review the administrative record as a whole, weighing both 9 the evidence that supports and the evidence that detracts from Richardson, 402 U.S. at To determine whether 10 the Commissioner’s conclusion.” 11 720 (9th Cir. 1998). 12 either affirming or reversing,” the reviewing court “may not 13 substitute its judgment” for the Commissioner’s. 14 IV. Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support Id. at 720-21. THE EVALUATION OF DISABILITY 15 People are “disabled” for purposes of receiving Social 16 Security benefits if they are unable to engage in any substantial 17 gainful activity owing to a physical or mental impairment that is 18 expected to result in death or has lasted, or is expected to 19 last, for a continuous period of at least 12 months. 20 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 21 1992). 42 U.S.C. 22 A. 23 The ALJ follows a five-step sequential evaluation process to The Five-Step Evaluation Process 24 assess whether a claimant is disabled. 20 C.F.R. 25 § 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 26 1995) (as amended Apr. 9, 1996). 27 Commissioner must determine whether the claimant is currently 28 engaged in substantial gainful activity; if so, the claimant is In the first step, the 3 1 not disabled and the claim must be denied. § 416.920(a)(4)(i). 2 If the claimant is not engaged in substantial gainful 3 activity, the second step requires the Commissioner to determine 4 whether the claimant has a “severe” impairment or combination of 5 impairments significantly limiting his ability to do basic work 6 activities; if not, the claimant is not disabled and his claim 7 must be denied. 8 9 § 416.920(a)(4)(ii). If the claimant has a “severe” impairment or combination of impairments, the third step requires the Commissioner to 10 determine whether the impairment or combination of impairments 11 meets or equals an impairment in the Listing of Impairments set 12 forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, 13 disability is conclusively presumed. § 416.920(a)(4)(iii). 14 If the claimant’s impairment or combination of impairments 15 does not meet or equal an impairment in the Listing, the fourth 16 step requires the Commissioner to determine whether the claimant 17 has sufficient residual functional capacity (“RFC”)2 to perform 18 his past work; if so, he is not disabled and the claim must be 19 denied. 20 proving he is unable to perform past relevant work. 21 F.2d at 1257. 22 case of disability is established. 23 § 416.920(a)(4)(iv). The claimant has the burden of Drouin, 966 If the claimant meets that burden, a prima facie Id. If that happens or if the claimant has no past relevant 24 25 26 27 28 2 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). The Commissioner assesses the claimant’s RFC between steps three and four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (citing § 416.920(a)(4)). 4 1 work, the Commissioner then bears the burden of establishing that 2 the claimant is not disabled because he can perform other 3 substantial gainful work available in the national economy. 4 § 416.920(a)(4)(v); Drouin, 966 F.2d at 1257. 5 comprises the fifth and final step in the sequential analysis. 6 § 416.920(a)(4)(v); Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d 7 at 1257. That determination 8 B. 9 At step one, the ALJ found that Plaintiff had not engaged in The ALJ’s Application of the Five-Step Process 10 substantial gainful activity since the application date. 11 19.) 12 severe impairments: “status post ischemic stroke; degenerative 13 disc disease of lumber spine; mild left hip degenerative joint 14 disease; and obesity.” 15 Plaintiff’s impairments did not meet or equal a Listing. 16 22.) At step two, he concluded that Plaintiff had the following 17 18 (AR (Id.) At step three, he determined that (AR At step four, the ALJ found that Plaintiff had the RFC to perform a limited range of light work: 19 [He] is able to lift and carry 20 pounds occasionally and 20 10 pounds frequently; stand and walk for six hours each 21 in an eight-hour workday; and sit for six hours in an 22 eight-hour 23 climbing but never climbing ladders, ropes or scaffolds, 24 and frequent balancing. [He] can perform unskilled work. 25 26 workday. [He] is limited to occasional The ALJ found that he had no past relevant work. (Id.) (AR 27.) At step five, the ALJ concluded that given Plaintiff’s age, 27 education, work experience, and RFC, he could perform three 28 representative jobs in the national economy. 5 (AR 28.) Thus, the 1 ALJ found Plaintiff not disabled. 2 V. 3 (AR 28-29.) DISCUSSION3 Plaintiff argues that the ALJ erroneously rejected his 4 subjective symptom statements. 5 discussed below, the ALJ did not err and remand is not warranted. 6 Because the ALJ’s RFC and step-five analyses may have been based 7 in part on his adverse credibility assessment, the Court 8 construes Plaintiff’s briefing liberally to include indirect 9 challenges to them. (J. Stip. at 4-11.) But as 10 A. 11 An ALJ’s assessment of a claimant’s allegations concerning Applicable Law 12 the severity of his symptoms is entitled to “great weight.” 13 Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989) (as 14 amended); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985) (as 15 amended Feb. 24, 1986). 16 every allegation of disabling pain, or else disability benefits 17 would be available for the asking, a result plainly contrary to 18 42 U.S.C. § 423(d)(5)(A).’” 19 1112 (9th Cir. 2012) (quoting Fair v. Bowen, 885 F.2d 597, 603 20 (9th Cir. 1989)). 21 See “[T]he ALJ is not ‘required to believe Molina v. Astrue, 674 F.3d 1104, In evaluating a claimant’s subjective symptom testimony, the 22 23 24 25 26 27 28 3 In Lucia v. SEC, 585 U.S. __, 2018 WL 3057893, at *8 (2018), the Supreme Court recently held that ALJs of the Securities and Exchange Commission are “Officers of the United States” and thus subject to the Appointments Clause. To the extent Lucia applies to Social Security ALJs, Plaintiff has forfeited the issue by failing to raise it during his administrative proceedings. (See AR 36-56, 147; J. Stip. at 411, 16-17); Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (as amended) (plaintiff forfeits issues not raised before ALJ or Appeals Council). 6 1 ALJ engages in a two-step analysis. 2 at 1035-36; see also SSR 16-3p, 2016 WL 1119029, at *3 (Mar. 16, 3 2016). 4 presented objective medical evidence of an underlying impairment 5 [that] could reasonably be expected to produce the pain or other 6 symptoms alleged.” 7 objective medical evidence exists, the ALJ may not reject a 8 claimant’s testimony “simply because there is no showing that the 9 impairment can reasonably produce the degree of symptom alleged.” 10 Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) (emphasis in 11 original). 12 See Lingenfelter, 504 F.3d “First, the ALJ must determine whether the claimant has Lingenfelter, 504 F.3d at 1036. If such If the claimant meets the first test, the ALJ may discredit 13 the claimant’s subjective symptom testimony only if he makes 14 specific findings that support the conclusion. 15 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). 16 affirmative evidence of malingering, the ALJ must provide “clear 17 and convincing” reasons for rejecting the claimant’s testimony. 18 Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (as 19 amended); Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 20 1102 (9th Cir. 2014). 21 (1) ordinary techniques of credibility evaluation, such as the 22 claimant’s reputation for lying, prior inconsistent statements, 23 and other testimony by the claimant that appears less than 24 candid; (2) unexplained or inadequately explained failure to seek 25 treatment or to follow a prescribed course of treatment; (3) the 26 claimant’s daily activities; (4) the claimant’s work record; and 27 (5) testimony from physicians and third parties. 28 Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (as See Berry v. Absent a finding or The ALJ may consider, among other factors, 7 Rounds v. 1 amended); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2 2002). 3 symptom statements is supported by substantial evidence in the 4 record, the reviewing court “may not engage in second-guessing.” 5 Thomas, 278 F.3d at 959. 6 If the ALJ’s assessment of the claimant’s subjective B. 7 8 9 Relevant Background 1. Medical Records On March 13, 2013, Plaintiff was admitted to a hospital emergency room after being hit by a car. (AR 239-40.) He 10 complained of hip and back pain (AR 239-40, 243-44) and received 11 x-rays of his lumbosacral spine (AR 243) and left hip (AR 244). 12 The spine x-ray demonstrated “mild dextroscoliosis,” 13 “[m]ultilevel degenerative disc disease,” “lumbar spondylosis,” 14 and “[m]arginal spurring.” 15 compression fractures or subluxation,” and the “sacroiliac 16 joints” and “transverse processes and pedicles” were all 17 “intact.” 18 disease” and was otherwise unremarkable. (Id.) (AR 243.) It also showed “no The hip x-ray showed “[m]ild degenerative joint (AR 244.) 19 On August 8, 2013, the alleged onset date, Plaintiff went to 20 an emergency room after noticing “facial droop” on the right side 21 of his face and slurred speech. 22 revealed two “small” foci of acute ischemia and evidence of 23 “small vessel disease.” 24 ataxic, he had slurred speech, and he was “unable to write using 25 [a] pen.” 26 extremities were functioning normally. 27 as having suffered an ischemic stroke and admitted to the 28 hospital. (AR 307.) (AR 306.) (AR 246.) An MRI of his brain On examination, his gait was But his arm strength was “5/5,” and his (Id.) 8 (Id.) He was diagnosed 1 As an inpatient, Plaintiff was seen by a physical therapist, 2 speech therapist, and occupational therapist. 3 August 9, 2013, the physical therapist noted that he was 4 independent in almost all areas of functional activity, including 5 standing up and “ambulation,” and used no assistive device for 6 ambulation or standing. 7 occupational-therapy assessment and speech-therapy services but 8 no further physical therapy. 9 same day noted some right-side weakness and speech and swallowing (AR 279.) (Id.) (AR 271.) On The therapist recommended an The speech therapist that 10 issues. 11 therapist found that his right arm was performing “[within 12 functional limits]” but at “3+/5” strength and that his grip 13 strength was “3/5.” 14 August 13, 2013. 15 (AR 276.) On August 11, 2013, the occupational (AR 274.) The hospital discharged him on (AR 270.) An outpatient note from August 20, 2013, stated that he was 16 referred to “PT/speech therapy.” 17 indicated that his right-hand strength was “4-/5” and his upper- 18 right-arm strength was “4/5.” 19 occupational therapy on September 12, 2013, during which his 20 right hand, shoulder, and arm strength were “4/5” each. 21 67.) 22 moderate issues with speech intelligibility and conversation and 23 mild oral motor-functioning issues. 24 documentation of occupational, speech, or physical therapy exists 25 in the record. 26 (AR 298.) (AR 293.) An exam that day He returned for (AR 266- Speech-therapy notes from the same day showed mild to (AR 268.) No further By September 26, 2013, his right hand and leg had “5/5” 27 strength and his right arm had “5-/5” strength, which the 28 attending doctor noted had “improved from [the] last visit.” 9 (AR 1 299.)4 2 limits and had full “5/5” strength in his upper extremities and 3 right hand. 4 On November 14, 2013, he was operating within normal (AR 294, 297.) Plaintiff was seen again on February 14, 2014. (AR 295.) (AR 292.) 5 He had “residual slurred speech.” No issues with his 6 right arm, hand, or leg were noted, and his “[m]usculoskeletal” 7 functioning was within normal limits. 8 Thereafter, Plaintiff visited an emergency room in April 2014 for 9 a dog bite on his right hand (AR 305) and again in July 2014 for (AR 292, 295.) 10 diabetes complications (AR 319). 11 professionals are contained in the record. 12 13 2. No other visits with medical Consulting and Reviewing Doctors On January 31, 2014, consulting neurologist Sarah L. Maze 14 met with Plaintiff and reviewed his medical records, which 15 included a recent MRI of his brain and x-ray of his lumbar spine. 16 (AR 281.) 17 right arm and right leg,” “move[d] very slowly,” and had “had low 18 back pain for many years.” 19 having “br[ought] a single-point cane,” and “he st[ood] slowly” 20 and “walk[ed] with a slightly widened base.” 21 noted that Plaintiff was “somewhat unsteady when standing” and 22 had “slight residual weakness in the right hand.” 23 motor examination found that his right arm and hand were 24 operating at “5-/5” strength and that his grip strength was Plaintiff reported that he had “weakness in [his] (Id.) On examination he was noted as (AR 283.) (Id.) Dr. Maze Her 25 26 27 28 4 A shower chair was apparently recommended by the doctor that day, seemingly as treatment for stroke-related symptoms. (AR 296.) The outpatient occupational-therapy evaluation from two weeks earlier, however, indicated that he was already using a shower chair at the time. (AR 267.) 10 1 “60/60 on the right and 20/20 on the left.” 2 (AR 282-83.) Dr. Maze concluded that Plaintiff could “occasionally lift 3 20 pounds and frequently lift 10 pounds,” “stand and walk 4 independently for six hours of an 8-hour workday,” “sit six hours 5 of an 8-hour workday,” and “perform fine detailed movements with 6 the right arm without restriction.” 7 2014, respectively, internist Nancy Armstrong (AR 69) and 8 otolaryngologist K. Wahl (AR 83) found the same after reviewing 9 Plaintiff’s medical records. 10 3. (AR 283.) In March and July (See AR 65-66, 79-80.) Plaintiff’s Statements 11 Plaintiff represented in his SSI application that he “[did] 12 not need help in personal care, hygiene or upkeep of a home” (AR 13 149), but a function report completed by his mother in December 14 2013 suggested that he was unable to dress himself, put on shoes 15 or socks, shave, bathe, eat, or use the toilet on his own (AR 16 181-88).5 17 She also claimed that he used a wheelchair “sometimes,” a walker, 18 and a shower chair. 19 questionnaire, he similarly claimed that he was unable to “do 20 to[o] much,” including “tie [his] shoe,” because of the lack of 21 function in his “right side.” 22 not walk far, “[e]specially in the heat,” and had a “bad” back. 23 (Id.) She attributed these issues to his “arm.” (AR 187-88.) (AR 182.) In a May 2014 exertion (AR 212.) He stated that he could He explicitly wrote, “[I] don’t lift anything bec[a]use I 24 25 26 27 28 5 The ALJ treated this function report as a third-party report representing the mother’s own statements. (AR 27.) The report is at times written in the first person from Plaintiff’s perspective, however. (See AR 181.) To the extent the report represents Plaintiff’s own statements, it is considered as part of his subjective symptom allegations. 11 1 was hit by [a] car[.]” (AR 213.) 2 At his March 30, 2016 hearing, Plaintiff reiterated that he 3 had difficulty dressing and getting in the shower, though he did 4 not mention needing assistance with either. 5 remarked that he could not be in the sun long without getting 6 “woozy.” 7 “I try not to.” 8 much because of the stroke.” 9 and back” for exercise. (AR 43.) (AR 44.) He He confirmed that he used a cane but stated, (AR 44.) He also “[couldn’t] move around that (Id.) (AR 45.) He reported walking “a block When asked if he could walk 10 “throughout an eight-hour period,” he replied that he could not 11 because he would “feel woozy” and that “sometimes if it’s hot [he 12 was] not going to be out there trying to commit another stroke.” 13 (AR 47.) 14 want to because he didn’t want to fall or have “another stroke.” 15 (AR 50.) 16 could not carry even one gallon throughout an eight-hour day 17 because of difficulty walking, specifically, in keeping his 18 balance. 19 that he could stand “maybe for a good hour” before wanting “to 20 sit down again.” 21 was “partially paralyzed . . . from the stroke.” 22 When asked if he could lift things, he said he wouldn’t He said that he could lift two gallons of milk but (Id.) He claimed he had difficulty standing up and (AR 51.) He also claimed that his “right hand” (AR 52.) Regarding treatment, he mentioned that he had seen a speech 23 therapist but had stopped because he “[didn’t] have 24 transportation” and “it was too far.” 25 have a car, so he either got rides from family or friends or 26 “[would] take the bus when [he had] money.” (AR 42, 46.) 27 could use the bus on his own, he testified. (AR 46.) 28 reported that he still got “checked up all the time.” 12 (AR 42, 54.) He did not He Plaintiff (Id.) He 1 was walking to a healthcare center “a block-and-a-half down,” 2 presumably from where he lived, which he visited “two or three 3 times out of the month.” 4 Emblue” regarding his legs. 5 seeing a “foot doctor” for “new shoes” and that he planned to see 6 an “eye doctor” next. (Id.) He discussed seeing a “Dr. (AR 51.) He stated that he was (AR 44.)6 7 C. 8 The ALJ partially discounted Plaintiff’s testimony because 9 Analysis it was “not entirely consistent with the medical evidence and 10 other evidence in the record.” 11 in making this finding, the ALJ erred for two reasons. 12 at 4-11.) 13 (AR 24.) Plaintiff argues that (J. Stip. Neither warrants remand, however. First, Plaintiff argues that the ALJ’s use of “boilerplate 14 language” was “woefully insufficient” to reject his subjective 15 symptom testimony. 16 conclusion that (Id. at 6-7.) He takes issue with the ALJ’s 17 [a]fter 18 undersigned 19 determinable impairments could reasonably be expected to 20 cause 21 [Plaintiff’s] 22 persistence, and limiting effects of these symptoms are 23 not entirely consistent with the medical evidence and 24 other evidence in the record for the reasons explained 25 throughout this decision. careful some consideration finds of that the statements of the evidence, [Plaintiff’s] alleged symptoms; concerning the the medically however, intensity, 26 27 28 6 There are no records of checkups at any local health center, nor are there records of visits with any “Dr. Emblue” or a “foot doctor.” 13 1 (Id. at 6 (citing AR 24).) Although the ALJ certainly used some 2 prefatory boilerplate language, as is common, he did not err 3 because he explained throughout his decision acceptable reasons 4 for discrediting Plaintiff’s testimony. 5 at 1103 (“After making this boilerplate statement, the ALJs 6 typically identify what parts of the claimant’s testimony were 7 not credible and why.”); Tipton v. Colvin, No. 1:13-cv-00359-REB, 8 2014 WL 4773964, at *6 & n.5 (D. Idaho Sept. 24, 2014) (“Though 9 the use of such common boilerplate language runs the risk of See Treichler, 775 F.3d 10 ‘getting things backwards,’ its mere use is not cause for remand 11 if the ALJ’s conclusion is followed by sufficient reasoning.” 12 (citation omitted)). 13 Second, Plaintiff contends that the ALJ erred by rejecting 14 his testimony for only its inconsistency with the objective 15 medical evidence. 16 provided another reason for discrediting his statements: 17 Plaintiff failed to seek “follow-up treatment.” 18 Because both reasons were clear and convincing, remand is 19 unwarranted. 20 1. (J. Stip. at 7-8.) But the ALJ in fact (See AR 24-26.) Medical Records Contradicted Plaintiff’s Testimony 21 Contradiction with evidence in the medical record is a 22 “sufficient basis” for rejecting a claimant’s subjective symptom 23 testimony. 24 1161 (9th Cir. 2008); see Morgan v. Comm’r of Soc. Sec. Admin., 25 169 F.3d 595, 600 (9th Cir. 1999) (upholding “conflict between 26 [plaintiff’s] testimony of subjective complaints and the 27 objective medical evidence in the record” as “specific and 28 substantial” reason undermining credibility). Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 14 Although a lack of 1 medical evidence “cannot form the sole basis for discounting pain 2 testimony, it is a factor that the ALJ can consider in his 3 credibility analysis.”7 4 Cir. 2005); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 5 2001). 6 by considering its inconsistency with the medical record. 7 Burch v. Barnhart, 400 F.3d 676, 681 (9th Here, the ALJ properly discounted Plaintiff’s testimony First, Plaintiff claimed stroke-related weakness on his 8 right side. 9 was “partially paralyzed . . . from the stroke”), 182 (claiming (See, e.g., AR 52 (testifying that his right hand 10 inability to do many things because of right-arm issues), 212 11 (stating that he was unable to “do to[o] much” because of his 12 paralysis).) 13 needed help to dress himself (AR 43-44, 181-82), put on shoes (AR 14 181, 212), shave (AR 181-83, 185), bathe (AR 44, 182, 185), eat 15 (AR 181-82), and use the toilet on his own (AR 182-83, 188). 16 This weakness was allegedly so severe that he Yet within two months of his stroke, Plaintiff’s medical 17 records showed that his right hand, arm, and leg had “improved” 18 to “5/5” strength and were functioning within normal limits. 19 (See, e.g., AR 274 (Aug. 11, 2013: right-hand strength “3+/5”), 20 293 (Aug. 20, 2013: hand strength at “4-/5” and upper-right-arm 21 strength at “4/5”), 299 (Sept. 2013: strength at “5/5”), 297 22 (Nov. 2013: strength at “5/5”), 282-83 (Jan. 2014: Dr. Maze 23 finding only “slight residual weakness” and right-side strength 24 was “5-/5”), 295 (Feb. 2014: “Musculoskeletal” within normal 25 26 7 27 28 Plaintiff thus incorrectly states that inconsistency with objective medical evidence is “always” a “legally insufficient” basis for discrediting a claimant’s testimony. (J. Stip. at 78.) 15 1 limits).) 2 or side when he was seen on February 14, 2014, even though his 3 visit that day specifically addressed other continuing side 4 effects from the stroke. 5 after February 2014 make no mention of any stroke-related 6 symptoms whatsoever. 7 visit for dog bite to right hand), 319 (July 2014: emergency-room 8 visit for diabetes complications)); see also Womeldorf v. 9 Berryhill, 685 F. App’x 620, 621 (9th Cir. 2017) (“[ALJ] properly 10 discounted [plaintiff’s] severity claims by pointing to . . . the 11 nature of the medical evidence itself[.]”). 12 There was no mention of problems with his right hand (AR 295.) Further, medical records (See AR 305 (Apr. 2014: emergency-room Second, Plaintiff’s claimed walking, standing, and lifting 13 limitations, which he attributed to his hip and back (see AR 50, 14 212-13), were also unsupported by the record. 15 noted that the only medical records regarding his hip or back 16 were from his March 2013 emergency-room visit (before the 17 relevant period) and the January 2014 opinion of Dr. Maze. 18 25-26, 239-40, 243-44, 281-84.) 19 spine x-ray showed “[m]ultilevel degenerative disc disease” (AR 20 243) and his hip x-ray that same day showed “[m]ild degenerative 21 joint disease” (AR 244), Dr. Maze reviewed those images, examined 22 Plaintiff, and found that he could “stand and walk independently 23 for six hours of an 8-hour workday” and “occasionally lift 20 24 pounds and frequently lift 10 pounds” (AR 283). 25 otherwise. 26 that he could stand for only an hour (AR 51), walk two blocks a 27 day (AR 45), and not lift “anything” (AR 213). 28 Berryhill, No. 5:16-CV-01501-SK, 2017 WL 7833633, at *2 (C.D. The ALJ properly (AR Although his March 2013 lumbar- No doctor opined Dr. Maze’s findings contradicted Plaintiff’s claims 16 See Leak v. 1 Cal. Aug. 14, 2017) (ALJ properly rejected plaintiff’s subjective 2 testimony in part because it was inconsistent with x-rays showing 3 only “mild” ailments and findings of consultative examiner who 4 assessed “no functional limitations”). 5 Plaintiff apparently sometimes used a cane. (AR 44.) But 6 none of the medical evidence suggested that it was prescribed, 7 and Plaintiff explained that “he [tried] not to” use it, 8 suggesting that it was elective rather than necessary. 9 Moreover, just after his stroke, on August 8, 2013, a physical 10 therapist noted that Plaintiff was independent in standing and 11 walking and did not need an assistive device. 12 Plaintiff brought a cane to his evaluation with Dr. Maze, but she 13 observed that “he [was] able to stand and walk alone.” 14 see also Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) 15 (ALJ properly discounted credibility when claimant “walked slowly 16 and used a cane at the hearing” even though no doctor indicated 17 he used or needed assistive device and two doctors noted he did 18 not need one); Castaneda v. Astrue, 344 F. App’x 396, 398 (9th 19 Cir. 2009) (upholding adverse credibility determination when 20 claimant asserted difficulty walking and use of cane and back 21 brace but had been prescribed neither and used neither at 22 hearing). 23 (Id.) (AR 279.) (AR 283); Further, the ALJ found that Plaintiff had few “subjective 24 complaints” on record regarding his hip and back. 25 his hearing, when Plaintiff was asked why he would be unable to 26 walk consistently throughout an eight-hour day, he did not 27 mention any hip or back pain; instead, he focused on fears that 28 he would have another stroke, stating, “I feel woozy and 17 (AR 26.) At 1 sometimes if it’s hot I’m not going to be out there trying to 2 commit another stroke.” 3 any alleged hip or back issues were not as severe or as limiting 4 as Plaintiff claimed.8 5 689-90 (9th Cir. 2011) (“The ALJ also discounted [plaintiff]'s 6 excess pain testimony because she failed to complain to her 7 treating physicians of extreme pain.”). 8 9 (AR 47.) Those statements suggest that Cf. McCawley v. Astrue, 423 F. App’x 687, Finally, the ALJ properly considered that Plaintiff’s claims were undermined by the consulting and reviewing doctors’ 10 opinions. 11 958-59. 12 of limitation than that claimed by Plaintiff. 13 assessments, moreover, were corroborated by the state-agency 14 reviewers’ similar findings. 15 the ALJ gave each of those uncontradicted opinions “great weight” 16 (AR 26), which Plaintiff hasn’t challenged on appeal. 17 See Rounds, 807 F.3d at 1006; Thomas, 278 F.3d at As previously noted, Dr. Maze found a much lesser degree (See AR 283.) (See AR 57-68, 70-82, 285-89.) Her And Thus, substantial medical evidence contradicted Plaintiff’s 18 subjective symptom statements, and the ALJ appropriately 19 considered that in his credibility assessment. 20 21 8 22 23 24 25 26 27 28 Plaintiff’s allegations of stroke-related wooziness, moreover, were unsupported by the record. Although the ALJ noted it (AR 24) and likely “reasonably account[ed]” for it in the RFC as part of Plaintiff’s “status post ischemic stroke” (AR 25; see also AR 22 (RFC limiting him to “occasional climbing but never climbing ladders, rope or scaffolds, and frequent balancing”)), outside the hearing the only mention of wooziness was when Plaintiff denied it. (AR 299 (Sept. 2013: “[Plaintiff] denies any dizziness”); see also AR 312 (July 2014: negative for dizziness).) And Plaintiff’s purported fears of having another stroke, too, were unsupported by the record. Indeed, the ALJ considered his alleged mental impairments and found them nonsevere, a finding he hasn’t challenged on appeal. 18 1 2 2. Failure to Seek Treatment An “unexplained, or inadequately explained, failure to seek 3 treatment” is a clear and convincing reason for discounting the 4 credibility of a claimant’s subjective symptom statements. 5 Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991) (en 6 banc); accord Molina, 674 F.3d at 1113; Tommasetti v. Astrue, 533 7 F.3d 1035, 1039 (9th Cir. 2008); see also SSR 16-3p, 2016 WL 8 1119029, at *8 (“[I]f the frequency or extent of the treatment 9 sought by an individual is not comparable with the degree of the 10 individual’s subjective complaints . . . we may find the alleged 11 intensity and persistence of an individual’s symptoms [to be] 12 inconsistent with the overall evidence of record.”). 13 ALJ properly found that Plaintiff failed to seek treatment for 14 his allegedly disabling impairments. 15 (“[F]ollow-up treatment essentially stopped shortly after 16 February 2014.”).) 17 Here, the (See, e.g., AR 24 Indeed, Plaintiff received no follow-up treatment for any 18 alleged hip or back pain after March 2013. 19 hip/back treatment of record).) 20 treatment for his right arm or hand after September 12, 2013, 21 despite alleging disability well beyond then. 22 occupational-therapy visit).) 23 such issues in his December 2013 function report (AR 181-88) and 24 May 2014 exertion questionnaire (AR 212-14) but apparently 25 declined to seek treatment at the time or during near- 26 contemporaneous hospital visits (see AR 305 (Apr. 2014: 27 emergency-room visit after dog bit his right hand), 319 (July 28 2014: emergency room and hospital admission from diabetes (See AR 239 (only And he received no follow-up (See AR 267 (last Indeed, Plaintiff complained of 19 1 complications)); see also Gilder v. Berryhill, 703 F. App’x 597, 2 598 (9th Cir. 2017) (upholding ALJ’s finding that plaintiff’s 3 “sporadic treatment history” and failure to seek treatment 4 “despite the availability” of suitable healthcare “undermined his 5 testimony”). 6 Plaintiff had some follow-up treatment for a month following 7 his August 8, 2013 stroke. (AR 267-68, 298.) He was recommended 8 for continued treatment at his occupational- and speech-therapy 9 visits on September 12, 2013, yet he discontinued them after that 10 date. 11 last six weeks), 269 (speech therapy to continue additional 12 month)); see also Bunnell, 947 F.2d at 346-47. 13 reported that he failed to pursue speech therapy because it was 14 too “far” and he lacked “transportation,” but he also testified 15 that he could take a bus on his own if he had to. 16 Though he “sometimes” didn’t have money for it, he nonetheless 17 had the funds and means to attend his initial follow-up visits, 18 see a “foot doctor” for “new shoes,” and get “checkups all the 19 time” at a local healthcare center. 20 Barnhart, 224 F. App’x 601, 604 (9th Cir. 2007) (“[Plaintiff] 21 said she lacked transportation to physical therapy . . . [but] 22 her statement was not credible since she drove to other 23 locations.”). 24 that he had plans to see an “eye doctor” in addition to his other 25 ongoing treatment. 26 doctors about his arm, hip, or back despite noting related 27 impairments just moments earlier. 28 (See AR 267 (occupational-therapy treatment plan set to Plaintiff (AR 46.) (AR 44, 46); cf. Bubion v. Further, by the time of his hearing, he testified (AR 44.) He did not mention plans to see (See AR 43-44.) Thus, Plaintiff’s failure to pursue treatment during the 20 1 relevant period for his allegedly disabling impairments was 2 properly considered by the ALJ in discounting his subjective 3 symptom testimony.9 4 VI. 5 CONCLUSION Consistent with the foregoing and under sentence four of 42 6 U.S.C. § 405(g),10 IT IS ORDERED that judgment be entered 7 AFFIRMING the Commissioner’s decision, DENYING Plaintiff’s 8 request for remand, and DISMISSING this action with prejudice. 9 10 DATED: June 27, 2018 11 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 12 13 14 15 16 9 17 18 19 20 21 22 23 24 25 26 27 28 Defendant argues that the ALJ further discounted Plaintiff’s testimony based on his “exaggerated statements” regarding his daily activities and on his “spotty and minimal work history.” (J. Stip. at 13-14.) Neither reason was provided by the ALJ as a basis for discounting Plaintiff’s statements’ credibility, however. The ALJ’s discussion of Plaintiff’s daily activities was in his step-two analysis; there, he concluded that Plaintiff had no severe mental impairment in part because he had “no limitation” in his activities of daily living stemming from psychiatric issues. (AR 21.) And the ALJ simply noted the sparse nature of Plaintiff’s work history without tying it to his credibility. (See AR 23); Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) (district court must “review the ALJ’s decision based on the reasoning and factual findings offered by the ALJ — not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking”). 10 That sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 21
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