Jesus Cardenas v. Nancy A. Berryhill, No. 5:2017cv02103 - Document 22 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. The Agency's decision that Plaintiff is not disabled is affirmed and the case is dismissed with prejudice. (See document for further details.) (sbou)
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Jesus Cardenas v. Nancy A. Berryhill Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 JESUS C., 11 Plaintiff, 12 13 14 v. NANCY A. BERRYHILL, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 17-2103-PJW MEMORANDUM OPINION AND ORDER 16 17 I. 18 INTRODUCTION 19 Plaintiff appeals a decision by Defendant Social Security 20 Administration (“the Agency”), denying his application for Disability 21 Insurance Benefits (“DIB”). 22 Judge (“ALJ”) failed to provide clear and convincing reasons for 23 rejecting his testimony. 24 decision is affirmed.1 He contends that the Administrative Law For the reasons set forth below, the ALJ’s 25 26 27 28 1 The Court has elected to refer to Plaintiff by his first name and last initial in an attempt to provide him some degree of privacy. Dockets.Justia.com 1 II. 2 SUMMARY OF PROCEEDINGS 3 In April 2016, Plaintiff applied for DIB, alleging that he had 4 been disabled since December 2014, due to post traumatic stress 5 disorder, major depressive disorder, insomnia, and traumatic brain 6 injury. 7 reported that he had back and knee problems and headaches. 8 His application was denied initially and on reconsideration and he 9 requested and was granted a hearing before an ALJ. (Administrative Record (“AR”) 162-65, 227.) (AR 275.) (AR 72-86, 97- 10 112.) 11 decision, finding that he was not disabled. 12 appealed to the Appeals Council, which denied review. 13 action followed. Following a hearing in February 2017, the ALJ issued a 14 III. 15 ANALYSIS 16 He later (AR 15-29.) Plaintiff (AR 2-8.) This Plaintiff contends that he is almost totally incapacitated due to 17 his physical and mental/emotional impairments. 18 administrative hearing, he reported, among other things, that he could 19 only concentrate for 30 seconds and could only walk a quarter of a 20 mile before needing to rest for an hour before he could walk again. 21 (AR 268.) 22 which he told the ALJ had been prescribed by his doctor a month 23 earlier, and explained that he needed it to get around. 24 He testified that he suffered from migraine headaches five times a 25 week from three to eight hours at a time (AR 41), slept only one to 26 two hours a night (AR 42), experienced audio and visual hallucinations 27 every other day (AR 43), and could only lift and carry two pounds. 28 (AR 64-65.) Prior to the He appeared at the administrative hearing with a cane, 2 (AR 45-46.) 1 The ALJ discounted Plaintiff’s testimony because it was not 2 supported by the medical evidence and because his treatment had been 3 conservative. 4 claimant’s testimony. 5 Cir. 2007) (“Evidence of ‘conservative treatment’ is sufficient to 6 discount a claimant’s testimony regarding the severity of an 7 impairment.”); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) 8 (noting ALJs can consider medical evidence in determining credibility 9 of claimant); Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (AR 22-26.) These are valid reasons for questioning a See Parra v. Astrue, 481 F.3d 742, 751 (9th 10 (holding inconsistency between allegations of severe pain and 11 conservative treatment was proper basis for discounting credibility). 12 And they are supported by the record. 13 The ALJ noted that the orthopedist who reviewed Plaintiff’s 14 medical records determined that his physical impairments were non- 15 severe. 16 support Plaintiff’s claims that he needed a cane to move around, was 17 unable to lift and carry more than two pounds, or suffered from 18 migraine headaches five days a week. 19 1632-34, 1705-07, 1739-40.) 20 medical record did not support Plaintiff’s claimed physical 21 limitations is supported by the record. 22 (AR 26.) She also pointed out that there was no evidence to (AR 21-26, 663-66, 1554-55, Clearly, the ALJ’s finding that the The same holds true regarding Plaintiff’s claimed mental/ 23 emotional impairments. 24 suffered from depression, PTSD, anxiety, insomnia, and hallucinations. 25 But, as the ALJ found, they also reflect that, upon examination, the 26 doctors reported generally unremarkable mental status findings with 27 normal concentration and memory, normal thought processes, normal 28 insight and judgment, and no objective evidence of observed The medical records show that Plaintiff 3 1 hallucinations or other perceptual disturbances. 2 476-77, 679-84, 1559-61, 1573-74, 1597-98, 1604-05, 1618, 1627-29, 3 1640, 1647-49, 1652-54, 1657-59, 1662-64, 1668-69, 1672, 1684-85, 4 1717-19, 1735-36.) 5 (AR 22, 24-26, 469, Plaintiff argues that the lack of objective evidence to support 6 the extent of his symptoms is not enough to reject his testimony, 7 citing Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir 1991). 8 Stip. at 10.) 9 evidence; she also relied on the fact that Plaintiff received only (Joint But the ALJ did not rely solely on the lack of medical 10 limited and conservative treatment for his ailments, which the record 11 establishes is true. 12 (AR 23-26.) Plaintiff disagrees. He points out that he was prescribed 13 Oxycodone, a narcotic pain reliever, and argues that this shows that 14 his treatment was not conservative, citing Tunstell v. Astrue, 2012 WL 15 3765139, at *4 (C.D. Cal. Aug. 30, 2012), and Nevins v. Astrue, 2011 16 WL 6103057, at *5 (C.D. Cal. Dec. 8, 2011). 17 These cases do not stand for the proposition that narcotic pain 18 relievers alone constitute more than conservative treatment. 19 even if they did, there are an equal number of cases that have reached 20 the opposite conclusion. 21 678, 680 (9th Cir. 2011) (equating narcotic medications with 22 conservative treatment); Higinio v. Colvin, 2014 WL 47935, at *5 (C.D. 23 Cal. Jan. 7, 2014) (finding plaintiff’s treatment as a whole 24 conservative even though he had been prescribed narcotic medication at 25 various times). 26 with the government that Plaintiff’s treatment was conservative even 27 though he was prescribed Oxycodone. 28 Plaintiff was claiming disability from December 2014 to March 2017, a (Joint Stip. at 12.) But, See, e.g., Huizar v. Comm’r, 428 F. App’x In the context of this case, the Court would agree 4 When he appeared before the ALJ, 1 period of 27 months. 2 two of those 27 months, July and August 2016. 3 To the extent that Oxycodone use establishes more than conservative 4 treatment, Plaintiff’s use of Oxycodone accounted for well under 10% 5 of the period of his alleged disability. 6 he and his doctors did not perceive his pain as significant as he 7 portrayed it before the Agency. 8 9 Yet, he had been prescribed Oxycodone for only (AR 1566, 1635, 1707.) This seems to indicate that Plaintiff notes that the Veterans Administration found that he was suffering from service-connected disability. (Joint Stip. at 11- 10 12; AR 193-212.) 11 VA’s disability finding establishes disability under the Social 12 Security Act, that argument is rejected. 13 fitness for military service and does not translate into disability 14 for social security purposes. 15 considered the VA finding and rejected it because she found that it 16 was “conclusory,” with “very little explanation of the evidence relied 17 on in forming that opinion,” and without positive objective clinical 18 or diagnostic findings to support the disability statements. 19 That finding is supported by the record and will not be disturbed. 20 See McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) 21 (explaining ALJ may give less than “great weight” to a VA disability 22 rating for “persuasive, specific, valid reasons for doing so that are 23 supported by the record”). 24 To the extent that Plaintiff is arguing that the The VA finding relates to Nevertheless, as required, the ALJ (AR 27.) Because the ALJ set forth specific, clear, and convincing reasons 25 for discounting Plaintiff’s testimony regarding his physical and 26 mental conditions and, further, because there is substantial evidence 27 to support those reasons, her decision will be affirmed. 28 5 See Trevizo 1 v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017) (citing Garrison v. 2 Colvin, 759 F.3d 995, 1014–15 (9th Cir. 2014)).2 3 IV. 4 CONCLUSION 5 For the reasons set forth above, the Agency’s decision that 6 Plaintiff is not disabled is affirmed and the case is dismissed with 7 prejudice. 8 IT IS SO ORDERED. 9 DATED: November 13, 2018 10 11 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 S:\PJW\Cases-Social Security\JESUS C, 2103\Memo Opinion.wpd 24 25 26 27 28 2 The Agency argues that the ALJ also questioned Plaintiff’s credibility because his statements to the Agency about his daily activities were inconsistent with statements he made to his doctors. (Joint Stip. at 16.) The Court has not considered this reason because it does not appear that the ALJ relied on it in reaching her decision. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). 6
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