Cynthia E. Linnett v. Nancy A. Berryhill, No. 5:2018cv01638 - Document 25 (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)
Download PDF
<![CDATA[
Cynthia E. Linnett v. Nancy A. Berryhill Doc. 25 1 2 3 O 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CYNTHIA E. L., 12 13 14 15 Case No. 5:18-cv-01638-KES Plaintiff, MEMORANDUM OPINION AND ORDER v. NANCY A. BERRYHILL, Acting Commissioner of Social Security,1 Defendant. 16 17 18 I. 19 BACKGROUND 20 Plaintiff Cynthia E. L. (“Plaintiff”) applied for Social Security disability 21 benefits on June 2, 2014, alleging disability commencing July 9, 2013, her last day 22 of work as a department manager at Wal-Mart. Administrative Record (“AR”) 23 178, 208, 394. On June 5, 2017, an Administrative Law Judge (“ALJ”) conducted 24 a hearing at which Plaintiff, who was represented by an attorney, appeared and 25 testified, as did a vocational expert (“VE”). AR 32-74. On September 20, 2017, 26 Effective November 17, 2017, Ms. Berryhill’s title is “Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security.” 27 28 1 1 Dockets.Justia.com 1 the ALJ issued an unfavorable decision. AR 10-27. The ALJ found that Plaintiff 2 suffered from the medically determinable severe impairments of “degenerative disc 3 disease of the lumbar spine with lumbar musculoligamentous strain; Achilles 4 tendinitis of the right ankle; and right sinus tarsi syndrome with neuritis.” AR 16. 5 The ALJ found that Plaintiff’s obesity, diabetes mellitus, hypertension, history of 6 abdominal disorders, adjustment disorder, depressed mood, and anxiety symptoms 7 were non-severe impairments. AR 16-19. Despite these impairments, the ALJ 8 found that Plaintiff had a residual functional capacity (“RFC”) to perform light 9 work with some additional restrictions. AR 19. Of relevance here, the ALJ found 10 that Plaintiff could stand and/or walk for 6 hours out of an 8-hour workday with 11 normal breaks and required “a sit/stand option at-will without going off-task.” Id. 12 Based on the RFC analysis and the VE’s testimony, the ALJ found that 13 Plaintiff could work as an office helper (Dictionary of Occupational Titles 14 [“DOT”] 239.567-010), mail clerk (DOT 209.687-026), and counter clerk (DOT 15 249.366-010). AR 25-26. The ALJ concluded that Plaintiff was not disabled. AR 16 26. 17 II. 18 ISSUES PRESENTED 19 20 21 22 Issue One: Whether the ALJ’s RFC finding that Plaintiff can stand or walk for 6 hours in an 8-hour workday lacks substantial evidentiary support. Issue Two: Whether the ALJ erred in evaluating Plaintiff’s subjective symptom testimony. (Dkt. 24, Joint Stipulation [“JS”] at 4.) 23 III. 24 DISCUSSION 25 26 27 28 ISSUE ONE: Evidentiary Support for the ALJ’s RFC Determination. 1. Summary of Relevant Medical Evidence. Plaintiff injured her right ankle playing hopscotch on July 9, 2013, and she never worked at Wal-Mart again. AR 43-44, 325 (“Was playing hop skotch 2 2 1 months ago when she had pain with normal hopping. No twisting injury to the 2 ankle.”), 394. On August 29, 2013, she reported ankle pain to her treating doctors 3 at the Riverside Medical Center (“RMC”) who diagnosed her with Achilles 4 tendinitis and a “foot contusion”; they prescribed her a controlled ankle movement 5 (“CAM”) boot and Motrin. AR 325-26. They recommended rest, ice, and a 6 follow-up appointment in six weeks. AR 326. 7 On October 10, 2013, Plaintiff presented with a “normal gait” and her 8 treatment plan was to “wean” her off the boot, do physical therapy, wear 9 comfortable shoes, and follow-up in two months. AR 324-35. 10 On October 24, 2013, Plaintiff started physical therapy to treat her right 11 ankle pain/tendinitis with PT George Marchis. AR 321. Plaintiff reported that she 12 was still wearing the CAM boot and walking was “difficult.” AR 321-22. PT 13 Marchis set as a goal “patient will be able to ambulate 15-20 minutes at a time in 14 order for her to be able to do her job in 8 weeks.” AR 321. Plaintiff was 15 scheduled for 10 sessions, 1 per week. Id. PT Marchis assessed her rehabilitation 16 potential as “fair/good.” Id. 17 On November 5, 2013, Plaintiff told PT Marchis that she had “minimal 18 complaints of pain in the Achilles [tendon]” and reported her pain level as only 19 2/10. AR 320. On November 13, 2013, she reported, “Some soreness in the 20 ankle” and a pain level of 4/10. AR 318. She told PT Marchis, “After prolong[ed] 21 walking [she] feels like she is getting a blister at the bottom of the foot,” but upon 22 his checking, “there is no blister.” Id. She had “minimal to no limp when 23 ambulating.” Id. 24 On November 26, 2013, Plaintiff reported experiencing an “ankle pop” two 25 days earlier that had caused pain at a 5/10 level ever since. AR 313. She had a 26 “minimal antalgic limp” and could “ambulate more than 250 feet with no walking 27 boot at a slow speed.” AR 314. 28 On December 3, 2013, she reported pain of 6/10 that was temporarily 3 1 improved by using K-tape. AR 311. PT Marchis reported, “overall, she is 2 responding well to physical therapy.” AR 312. Plaintiff, however, did not return 3 to complete her physical therapy; the December 3rd session was her last with PT 4 Marchis. AR 292. In March 2014, PT Marchis discharged her for “fail[ing] to 5 follow up with therapy.” Id. 6 On December 6, 2013, Plaintiff saw Dr. Patrick Serynek at RMC who noted 7 no calf atrophy but an antalgic gait. AR 309-10. He recommended restarting the 8 CAM boot and getting an MRI. AR 310. The MRI was initially interpreted to 9 show “some inflammation in the foot and ankle as well as a cyst ….” AR 309. At 10 a January 6, 2014 appointment, however, Dr. Serynek explained that the “cyst was 11 not anywhere near her painful areas,” and he recommended pain management, 12 physical therapy, and a follow-up in 8 weeks. AR 308. 13 On January 8, 2014, Plaintiff attended an initial pain management 14 appointment with a psychologist. AR 306. Plaintiff also interacted with a new 15 physical therapist, PT Pamela Hauger, this time concerning pain in her “low back 16 into buttocks and LEs [lower extremities].” AR 304-05. She told PT Hauger that 17 she was not currently in physical therapy, even though she still had an active 18 referral at this time to return to PT Marchis. AR 305. She told PT Hauger that she 19 had been suffering “constant” pain at a level of 5/10 for the past six months that 20 had decreased her activity level by 50%. Id. PT Hauger observed that Plaintiff 21 walked into the medical office with no assistive device and did not have an 22 antalgic gait. Id. She prescribed Plaintiff a TENS unit. Id. On January 16, 2014, 23 however, Plaintiff reported that she “wished to decline further services from pain 24 management”; she was discharged from the program. AR 301. 25 On January 29, 2014, Plaintiff met with another RMC physician, Dr. Melissa 26 Buffington, for “ankle/foot pain” but reported “no other concerns.” AR 298-99. 27 Dr. Buffington discussed potential side effects of nortriptyline, a nerve pain 28 medication and antidepressant, and Plaintiff indicated that she wanted treatment, so 4 1 2 Dr. Buffington prescribed nortriptyline. AR 301. On February 10, 2014, Plaintiff reported that the nortriptyline was not 3 helping, and she was having leg spasms and severe pain in both legs. AR 297. 4 Later in February, she contacted RMC about extending her “off work order”; she 5 had been scheduled to return to work on February 18, 2014, but RMC agreed to 6 extend the order until the date of her next appointment. AR 296-97. 7 On February 18, 2014, Plaintiff saw Dr. Serynek to “follow up on foot pain.” 8 AR 295. He noted that now she was reporting pain over the “dorsolateral aspect” 9 of her ankle (i.e., the top of her foot/ankle) rather than her Achilles tendon. Id. He 10 saw no calf atrophy or swelling, but Plaintiff displayed an antalgic gait. AR 296. 11 He revised the assessment to “neuritis.” Id. 12 On February 27, 2014, Plaintiff returned to Dr. Buffington to treat her back 13 pain. AR 293-04. She reported “ongoing right ankle pain for almost 1 year.” AR 14 294. Dr. Buffington referred her for physical therapy, but Plaintiff declined. AR 15 294. Dr. Buffington prescribed more pain medication. Id. 16 In March 2014, Plaintiff saw podiatrist Dr. Pham for a second opinion. AR 17 291. He observed that the range of motion for her foot and ankle was “intact” and 18 there was no pain upon palpation of her Achilles, but her right sinus tarsi was 19 tender. Id. He diagnosed her with right sinus tarsi syndrome and neuroma. AR 20 292. He recommended a “short leg cast” with crutches for 3-4 weeks. Id. 21 Plaintiff returned to Dr. Serynek on April 15, 2014, describing her right foot 22 and ankle as “still hurts, still swollen.” AR 289. He removed her cast and 23 observed “swelling not present.” AR 290. He recommended restarting TENS 24 therapy and pain management. Id. 25 On May 1, 2014, Plaintiff saw RMC’s Dr. Takhar about her back pain. AR 26 284. She told him that she was experiencing “difficulty moving her right foot and 27 chronic pain” ever since her hopscotch injury, and she had tried pain management 28 but “couldn’t complete due to financial issues.” Id. She was limping on the right 5 1 side and declined to try heel or toe walking due to pain. AR 286. He 2 recommended physical therapy, but Plaintiff again declined because “it causes 3 more pain.” AR 287. He referred her for acupuncture and ordered an MRI. Id. 4 The May 2014 MRI showed a “small slipped disc” at L5-S1. AR 284; see 5 also AR 460 (interpreting MRI as showing “mild narrowing” at L5-S12). Dr. 6 Takhar recommended that she make a follow-up appointment if her pain persisted 7 after acupuncture. Id. Plaintiff tried acupuncture, but she reported that it “made 8 her right foot/ankle pain worse.” AR 282. 9 On May 19, 2014, Plaintiff asked RMC to extend her off-work order. AR 10 283. Plaintiff reported that she was “unable to put weight on her foot.” AR 281. 11 Dr. Serynek responded, “Give her one more month but let her know that this will 12 be the last note that I provide.” AR 283. 13 In June 2014, Plaintiff attended orientation for a pain management program 14 but she did not enroll, telling her doctors that “she is not ready to proceed at this 15 time” for financial reasons. AR 448. 16 On July 22, 2014, consultative examiner Dr. Bernabe performed an 17 orthopaedic evaluation. AR 394-98. Dr. Bernabe observed that Plaintiff was “able 18 to move about the office without assistance.” AR 396. He conducted seated and 19 supine straight leg raising tests with negative results. Id. Joints in her hips, knees, 20 ankles, and feet exhibited a normal range of motion. AR 396-97. Plaintiff had 5/5 21 muscle strength in both legs. AR 397. He observed that she could “walk without 22 difficulty” including on her toes and heels. Id. He diagnosed her as suffering from 23 24 25 26 27 28 Plaintiff’s counsel describes this MRI as showing “moderate to severe degenerative changes” but provides no supporting cite. (JS at 7.) Counsel may have intended to refer to an MRI from May 2017 which did report “moderate to severe disc narrowing” and other findings, but also stated, “The above findings are so common in adults without lower back pain that while we report their presence, they must be interpreted with caution ….” AR 1436. 2 6 1 Achilles tendonitis of the right ankle and lumber musculoligamentous strain, but he 2 opined that she could still walk or stand 6 hours in an 8-hour day. Id. 3 In August 2014, state agency consultant Dr. Chan opined that Plaintiff could 4 stand or walk “about 6 hours” in an 8-hour workday with normal breaks. AR 80. 5 Dr. Chan noted that while Plaintiff alleged she had difficulty standing or walking 6 for “average amounts of time,” the consultative examiner observed her to have a 7 “normal gait” and “no difficulties moving about the office.” AR 79. On 8 reconsideration, Dr. Bayar offered the same opinion. AR 91-92. 9 On August 14, 2014, Plaintiff returned to the pain management program. 10 AR 438. Plaintiff reported that she could not drive or work, but she enjoyed 11 reading, jigsaw puzzles, and crocheting. AR 439. She was unable to exercise 12 formally but tried to take walks in her backyard garden. AR 434. An August 15, 13 2014 physical examination found her motor strength “right 3/5 due to reduced 14 effort from pain and left 5/5” with a negative straight leg raising test. AR 437. 15 She declined to try heel or toe walking due to pain. Id. 16 Later in August 2014, Plaintiff returned to physical therapy with PT Stacye 17 Basye. AR 429. The goals included standing for 20 minutes and walking for 40 18 minutes. AR 430. She reported that standing more than 10 minutes or walking 19 more than 30 minutes aggravated her pain. Id. She was, however, able to swim 20 for exercise 4-5 days/week for 60 minutes. AR 431. 21 When Plaintiff saw RMC’s Dr. Barker for pain management in September 22 2014, she was walking with a cane. AR 421. Dr. Barker noted that she was 23 tolerating Gabapentin well and was selling Avon products.3 AR 419. 24 In October 2014, she told Kaiser4 that she could perform all her own 25 26 27 28 Compare AR 44 (hearing testimony that Plaintiff has had no job “at all” since leaving Wal-Mart). 3 4 It appears that RMC was (or became) part of the Kaiser network, because 7 1 activities of daily living and gardened. AR 461. In January 2015, she increased 2 her Gabapentin dosage. AR 590. This made her “sedated and dizzy,” so it was 3 reduced in February 2015. AR 613. She told Kaiser that she never had any back 4 pain or leg pain until she “was in a boot the second time after hopscotch injury to 5 her ankle at the end of 2013.” Id. On February 13, 2015, Kaiser noted that she had 6 a “normal” gait and did not use any assistive device to ambulate. AR 627. She 7 received lumbar epidural steroid injections for pain management which brought 8 “35-40% improvement.” AR 629; compare AR 659 (last steroid injection in 9 February 2015 brought “minimal relief”), AR 722 (epidural injections helped for 1 10 11 month). At an appointment on February 18, 2015, Plaintiff reported that she had 12 experienced right ankle pain for two years and that her ankle was “progressively 13 getting more painful and swollen.” AR 640. Dr. Bowes at Kaiser observed that 14 her ankle was swollen, but her gait was “normal.” AR 641. Plaintiff was referred 15 for an MRI of her right foot and ankle. Id. The MRI was an “unremarkable” 16 study. AR 643-44. Two days later on February 20, 2015, however, PT Theodora 17 Winn observed an antalgic gait. AR 653. 18 At a physical examination in March 2015, Dr. Sojda at Kaiser noted no calf 19 atrophy but an antalgic gait. AR 673. In April 2015, however, her gait was 20 normal. AR 682, 686. 21 In May 2015, she went the emergency room (“ER”) complaining of back 22 pain. AR 711. She was taking Percocet every 8 hours and was instructed to 23 increase it to every 6 hours. AR 711, 713. She reported radiating leg pain and 24 intermittent leg numbness. AR 721. She told Dr. Takhar that she was not 25 interested in more physical therapy. AR 722. Her gait was antalgic. AR 724. 26 27 28 In May 2015, she underwent another spinal MRI. AR 727. It revealed “no Plaintiff saw some of the same treating sources at RMC and Kaiser. 8 1 change at the lumbar spine” as compared to the May 2014 MRI. Id. A straight leg 2 raising test in June 2015 was negative. AR 736. In September and October 2015, 3 she had normal leg strength, muscle tone and gait. AR 773, 785. 4 In November 2015, Plaintiff went to another Kaiser pain management 5 appointment. AR 793. She described her back pain as being an average of 6/10 6 and having a “gradual onset” after “wearing a medical boot and being on crutches” 7 due to right ankle pain. Id. She reported limitations on walking, bathing, dressing, 8 and toileting. Id. Gait testing revealed “mildly antalgic gait but normal 9 coordination.” AR 795. Dr. Dhamija noted, “patient’s pain appears refractory to 10 conservative modalities with good symptom response with prior interventions.” 11 AR 797-98. Dr. Dhamija recommended a lumbar epidural steroid injection 12 followed by “focused physical therapy” as “the most important treatment 13 modality.” AR 798. 14 While hospitalized in 2016 for abdominal pain5, she was able to ambulate to 15 the bathroom. AR 1357, 1363. As late as 2017, Plaintiff was spending ½-hour/day 16 exercising (AR 1126) and had negative straight leg raising tests (AR 1175). 17 In July 2017, Plaintiff underwent another consultative examination with Dr. 18 Schoene. AR 1451. He observed a normal gait, normal range of ankle motion, and 19 no ankle swelling, inflammation, or tenderness. AR 1454. He opined that she 20 could walk or stand 6 hours in an 8-hour workday. AR 1455. 2. The ALJ’s Determination of Plaintiff’s RFC. 21 22 The ALJ gave “little weight” to the state agency consultants and Dr. 23 Bernabe’s opinions. AR 23. The ALJ assessed more functional restrictions than 24 25 26 27 28 Plaintiff requested a cholecystectomy (AR 1353, 1408, 1411), but her treating doctor did not feel she needed surgical intervention for pain relief, because she had “unremarkable” labs (AR 1366, 1415). She claimed to a nurse in July 2016 that she was “told” that she needed to have her gall bladder removed. AR 1357. She eventually had an elective cholecystectomy. AR 1421. 5 9 1 they did, but agreed with their opinions that Plaintiff could stand or walk 6 hours in 2 an 8-hour workday. The ALJ reasoned that MRIs and other diagnostic tests had 3 revealed “moderate” findings, Plaintiff had received “moderate” treatment that 4 improved her condition, and Plaintiff suffered from a combination of impairments. 5 AR 24. Regarding ambulation, the ALJ cited multiple records throughout the 6 period of claimed disability when Plaintiff was observed by medical sources to 7 have a normal gait, intact range of motion, or negative straight leg raising test. AR 8 22-23, citing AR 296, 318, 329, 396, 442, 1175, 1316, 1326, 1454.. The ALJ 9 disbelieved Plaintiff’s testimony that she has extreme difficulty ambulating. AR 10 11 12 13 22. 3. Analysis of Claimed Errors. a. Substantial Evidence Supports the ALJ’s RFC. The decision of the Commissioner may be reversed only if it is not 14 supported by substantial evidence or if it is based on legal error. Tackett v. Apfel, 15 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is such relevant 16 evidence as a reasonable mind might accept as adequate to support a conclusion. 17 Richardson v. Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to 18 more than one rational interpretation, the court may not substitute its judgment for 19 that of the Commissioner. Tackett, 180 F.3d at 1097; Morgan v. Commissioner, 20 169 F.3d 595, 599 (9th Cir. 1999). The ALJ is responsible for determining 21 credibility, resolving conflicts in medical testimony, and resolving ambiguities. 22 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). “Where evidence is 23 susceptible to more than one rational interpretation, it is the ALJ’s conclusion that 24 must be upheld.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Thus, to 25 prevail, Plaintiff must demonstrate that the medical evidence cannot rationally be 26 interpreted as supporting a finding that Plaintiff can stand or walk for 6 hours in an 27 8-hour workday. Stated differently, the ALJ’s RFC may be reversed only if it is 28 not supported by substantial evidence. Tackett, 180 F.3d at 1097. 10 1 As summarized above, Plaintiff stopped working because of a 2013 2 hopscotch injury to her right ankle – not the kind of injury one would expect to 3 cause permanent disability. Just a few months after her injury, she had a normal 4 gait and reported low pain levels. AR 324-35, 320. A 2013 MRI of her right foot 5 and ankle showed only a cyst that did not concern her doctor (AR 308) and a 2015 6 MRI was totally unremarkable (AR 643-44). While she initially reported pain in 7 her right Achilles tendon, by February 2014 she was reporting pain in a different 8 location. AR 295. In May 2014, Dr. Serynek thought that she was capable of 9 returning to work in one month. AR 283. Indeed, in November 2014, she was 10 capable of “prolonged walking” and thought that she had developed a blister. AR 11 318. Throughout the period of claimed disability, Plaintiff alternated between a 12 normal gait and antalgic gait with no corresponding, observable change in her 13 physical condition, a fact that the ALJ could rationally interpret as evidence that 14 Plaintiff was exaggerating her difficulty ambulating. 15 Plaintiff points to November 2013 physical therapy records with PT 16 Marchis, arguing that if her therapy goal was to ambulate “for 15-20 at a time,” 17 then she must not have been able to do so. (JS at 6, citing AR 321.) The ALJ, 18 however, could rationally have interpreted these records as indicating that Plaintiff 19 was physically capable of ambulating longer but unwilling to do so in the therapy 20 setting, given (1) her “normal gait pattern” pre-therapy (AR 324), (2) the lack of 21 any objective evidence of a serious ankle or foot injury in 2013, (3) her unrealistic 22 reports of rapid worsening (i.e., on November 5, 2013, she had “minimal” pain, but 23 by November 26 she was limping and could walk only 250 feet [AR 320, 313]), 24 (4) PT Marchis’s assessment at their last session that Plaintiff was “responding 25 well to physical therapy,” (AR 312), (5) Plaintiff’s failure to complete physical 26 therapy with PT Marchis (AR 292). 27 28 Plaintiff also points to physical therapy records from late 2014 which stated as goals standing for 20 minutes and walking for 40 minutes. (JS at 7, citing AR 11 1 430.) By February 2015, that goal (and all the other therapy goals) were still 2 marked as “not met.” AR 652. Again, the ALJ could rationally have interpreted 3 this evidence as failing to reflect Plaintiff’s actual abilities. Even the goal of 4 “Patient will be able to use TENS unit” was marked “not met” in February 2015. 5 Id. Plaintiff, however, had received a TENS unit and instructions for using it in 6 January 2014. AR 305-06. The pain management nurse stated, “Patient appears to 7 understand how to operate the TENS unit safely and correctly.” AR 306. Plaintiff 8 later testified that she is able to use a TENS unit. AR 55. Thus, an equally 9 reasonable interpretation of all the “not met” notations is that the physical therapist 10 never updated that section of her computerized records. 11 All four medical sources who opined on Plaintiff’s ability to walk/stand 12 found that Plaintiff could walk/stand for 6 hours in an 8-hour workday. AR 80, 91- 13 92, 397, 1455. In contrast, no medical sources opined that Plaintiff could not stand 14 or walk for 6 hours. 15 Much of Plaintiff’s briefing summarizes her own reports to medical sources 16 about her limitations. The record, however, shows several occasions when 17 Plaintiff declined to exert her full effort or engage in part of an examination. See, 18 e.g., AR 286-97, 437. For example, Plaintiff would sometimes refuse to try toe or 19 heel walking, but when she tried for Drs. Bernabe and Schoene, they observed that 20 she could do so without difficulty. AR 397, 1453. As discussed below, the ALJ 21 gave legally sufficient reasons for discounting Plaintiff’s testimony concerning the 22 degree to which her conditions impaired her ability to ambulate. 23 24 25 26 For all of these reasons, Plaintiff has failed to demonstrate that the ALJ’s RFC lacks substantial evidentiary support. b. The RFC Is Not Internally Inconsistent. Plaintiff argues that the RFC is “internally inconsistent,” because “it is 27 impossible for someone to be able to stand and/or walk 6 hours out of an 8 hour 28 work day while simultaneously having an ‘at will’ sit/stand option.” (JS at 8.) 12 1 Plaintiff apparently interprets an at-will sit/stand option to mean that the worker 2 must be permitted to sit as much as he/she desires, even if more than two hours, 3 making it inherently inconsistent with light work. 4 The Ninth Circuit has affirmed an agency decision setting a claimant’s RFC 5 as light work with an at-will sit/stand option. Zamora v. Comm’r of Soc. Sec. 6 Admin., 471 F. App’x 579, 579 (9th Cir. 2012) (“The ALJ’s determination that 7 Zamora was capable of light work with a sit/stand option at will was therefore 8 consistent with Dr. Teran’s medical assessment.”). 9 Moreover, to the extent that a light work RFC is arguably incompatible with 10 an at-will sit/stand limitation, the ALJ took the appropriate step of putting the issue 11 to the VE. The VE testified that the DOT does not address which jobs have an at- 12 will sit/stand option, but that based on his experience, the jobs of office helper, 13 mail clerk, and counter clerk offered that option. AR 68; see also Buckner-Larkin 14 v. Astrue, 450 F. App’x 626, 627 (9th Cir. 2011) (finding no error in sedentary 15 RFC with at-will sit/stand option where VE found that the recommended jobs 16 would allow for an at-will sit-stand option). 17 Plaintiff’s attorney questioned the expert on various topics at the hearing. 18 Plaintiff neither challenged the VE’s testimony that a person with Plaintiff’s RFC 19 could perform the three identified jobs nor inquired how the VE reconciled an at- 20 will sit/stand option with light work. AR 71. The factual issue is waived on 21 appeal. See Shaibi v. Berryhill, 870 F.3d 874, 881-82 (9th Cir. 2017) (“[A]n 22 agency, its experts, and its administrative law judges are better positioned to weigh 23 conflicting evidence than a reviewing court”; represented party “waives such a 24 challenge on appeal” if not presented to agency); Dollarhide v. Berryhill, No. ED 25 CV 16-2279 MRW, 2017 U.S. Dist. LEXIS 199098, at *9 (C.D. Cal. Dec. 4, 2017) 26 (“Plaintiff’s attorney questioned the expert on various topics at the hearing. 27 However, Plaintiff did not challenge the expert’s testimony that a person with 28 Plaintiff’s RFC could perform the identified jobs. The factual issue is waived on 13 1 2 3 4 appeal.”). c. An At-Will Sit/Stand Option Does Not Necessarily Take Workers Off-Task. Finally, Plaintiff argues that exercising an at-will sit/stand option would 5 “undoubtedly result in … being off task for a significant portion of the work day if 6 the changes of position between sitting and standing were occurring on a frequent 7 basis, perhaps every 5 to 15 minutes.” (JS at 9.) 8 The ALJ expressly asked the VE about “a sit/stand option at will, without 9 going off task,” and the VE testified that such a restriction was consistent with the 10 three identified jobs. AR 67-68. The ALJ was entitled to rely on the VE’s opinion 11 as substantial evidence. See Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 12 2005) (“A VE’s recognized expertise provides the necessary foundation for his or 13 her testimony.”). It is easy to imagine how an office helper, mail clerk, or counter 14 clerk could alternate between sitting and standing without going off-task. A 15 counter clerk could have a chair or stool behind the counter that he/she sometimes 16 uses. An office helper or mail clerk might have an adjustable workstation or 17 alternate between tasks that require walking (like delivering mail) and tasks that 18 can be done sitting. 19 ISSUE TWO: Plaintiff’s Subjective Symptom Testimony. 20 1. Rules for Evaluating Subjective Symptom Testimony. 21 It is the ALJ’s role to evaluate the claimant’s testimony regarding subjective 22 pain or symptoms. See Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). 23 “[T]he ALJ is not required to believe every allegation of disabling pain, or else 24 disability benefits would be available for the asking, a result plainly contrary to 25 42 U.S.C. § 423(d)(5)(A).” Id. at 1112 (internal quotation marks omitted). An 26 ALJ’s assessment of symptom severity is entitled to “great weight.” Weetman v. 27 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989). 28 If an individual alleges impairment-related symptoms, the ALJ must 14 1 evaluate those symptoms using a two-step process. First, “the ALJ must determine 2 whether the claimant has presented objective medical evidence of an underlying 3 impairment ‘which could reasonably be expected to produce the pain or other 4 symptoms alleged.’” Treichler v. Comm’r of SSA, 775 F.3d 1090, 1102 (9th Cir. 5 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)). If so, 6 the ALJ may not reject a claimant’s testimony “simply because there is no showing 7 that the impairment can reasonably produce the degree of symptom alleged.” 8 Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). 9 Second, if the claimant meets the first test, the ALJ may discredit the 10 claimant’s subjective symptom testimony only upon making specific findings that 11 support the conclusion. Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). If 12 the ALJ finds testimony as to the severity of a claimant’s pain and impairments is 13 unreliable, then the ALJ must make findings “sufficiently specific to permit the 14 court to conclude that the ALJ did not arbitrarily discredit claimant’s testimony.” 15 Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002); Brown-Hunter v. Colvin, 16 806 F.3d 487, 493 (9th Cir. 2015). Absent a finding or affirmative evidence of 17 malingering, the ALJ must provide “clear and convincing” reasons for rejecting the 18 claimant’s testimony. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); Ghanim 19 v. Colvin, 763 F.3d 1154, 1163 & n.9 (9th Cir. 2014). 20 21 22 23 If the ALJ’s findings are supported by substantial evidence in the record, courts may not engage in second-guessing. Thomas, 278 F.3d at 959. 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 her pain: (1) her 25 testimony lacked objective support; (2) Plaintiff made statements about her 26 limitations that were “inconsistent” with her medical records; (3) Plaintiff failed to 27 follow prescribed treatment; and (4) Plaintiff engaged in activities inconsistent 28 with her claimed degree of limitation. AR 20-24. 15 1 d. Reason One: Lack of Objective Evidence. 2 “Although lack of medical evidence cannot form the sole basis for 3 discounting pain testimony,” ALJs may consider that factor in their analysis. 4 Burch, 400 F.3d at 681. The ALJ correctly pointed out that the MRIs, x-rays, and 5 electrodiagnostic studies Plaintiff underwent did not show the kind of significant 6 abnormalities that one would expect in a person who is totally disabled. AR 23, 7 citing AR 326, 381, 451, 524, 1320, 1436, 1440, 1443. 8 e. Reason Two: Plaintiff’s Inconsistent Statements. 9 The ALJ contrasted several aspects of Plaintiff’s hearing testimony with the 10 medical evidence. First, Plaintiff testified that her right foot was in “constant” pain 11 with swelling, and the “swelling has never really gone all away.” AR 21, citing 12 AR 51. The ALJ cited medical records in which Plaintiff did not report significant 13 right foot/ankle pain, was observed to have no right ankle swelling, and/or had a 14 normal range of right ankle motion. AR 23, citing AR 286, 296, 318, 329, 1440, 15 1454. 16 The ALJ next pointed out that Plaintiff claimed walking was painful and she 17 struggled to walk even short distances. AR 21. In June 2014 Plaintiff reported that 18 if she walked as far as 500 feet, then her right foot “throbs” and her ankle “swells” 19 and she had to sit with her foot elevated for a least an hour to relieve the pain. AR 20 221. At the hearing, she testified that her left foot “will go numb” and cause 21 “shooting pain” when she stands to walk. AR 48-49. She described it as pain that 22 shoots through her leg and “all the way up [her] back.” AR 49. She testified, “The 23 left is worse than the right at this point,” apparently referring to pain from her back 24 into her legs. AR 50. The ALJ contrasted Plaintiff’s testimony about extreme 25 walking difficulty with all the medical records documenting that she had a 26 “normal” gait, a physical therapy progress note stating that “prolonged walking” 27 had aggravated her foot pain, and Dr. Bernabe’s observations that she could walk 28 around his medical office without difficulty. AR 21-22, citing AR 397, 785, 823, 16 1 1442, 1453.. Indeed, the hearing occurred on June 5, 2017. AR 32. On June 15, 2 2017, Kaiser observed that Plaintiff had a “normal gait.” AR 1442. 3 At the hearing, Plaintiff testified that she could not drive because driving 4 made her back spasm and she took Percocet three times per day. AR 39. In July 5 2016, however, Plaintiff told Kaiser that she “stopped driving after car accident a 6 few years ago.” AR 1411. 7 The ALJ also concluded that Plaintiff claimed she had needed a cane to walk 8 when she did not. AR 22. In a June 2014 questionnaire, Plaintiff checked boxes to 9 indicate that she used a cane and wheelchair. AR 223. She explained that she used 10 a cane “for walking any distance” and an “electric wheelchair” for shopping. Id. 11 She went shopping by herself every week but used a “cane or electric scooter.” 12 AR 222. At the hearing she clarified that she did not have a wheelchair, but she 13 used a scooter to shop because she could not walk through a store. AR 52-53. 14 Despite the wheelchair response being clarified, Plaintiff also testified that 15 she “walked with a cane for a while.” AR 44. She stopped using a cane because 16 “they say that the cane was hindering my ability to keep my spine semi-level.” AR 17 52. She testified that her right foot had not gotten any better, at which point the 18 ALJ interjected that it must have improved somewhat since she was no longer 19 wearing a CAM boot or using crutches. AR 46. She explained that she only 20 needed crutches if she was wearing the boot, and she could not use the boot 21 because it hurt her back. AR 46. She testified that her pain management classes 22 had taught her exercises to do “when the pain gets too severe … so that [she] can 23 walk without the aid of crutches.” AR 47. 24 The Court was unable to find (and the parties did not cite) any medical 25 records in which a medical source advised Plaintiff to start or stop using a cane. 26 There is one reference to cane use in September 2014. AR 421. Per Plaintiff’s 27 medical records, in July 2014 she was “able to walk without difficulties.” AR 397. 28 She attended physical therapy with PT Basye on September 16, 2014. AR 422-23. 17 1 She presented with an antalgic gait, but she did therapeutic exercise, and PT Basye 2 did not note that she was using a cane. AR 423. The next day, Plaintiff saw Dr. 3 Barker who observed that she was walking with a cane but also reported being able 4 to walk in her backyard, do all her own activities of daily living, and sell Avon 5 products. AR 419-21. On September 18, 2014, Plaintiff again saw PT Basye who 6 did not note use of a cane. AR 416-18. Just a few days later on September 30, 7 2014, Plaintiff saw Dr. Bowes for a muscle spasm in her back. AR 406. Dr. 8 Bowes noted, “Gait normal. Coordination normal.” AR 407. 9 The ALJ could rationally interpret this evidence as revealing inconsistencies 10 between what Plaintiff told the Social Security Administration and what Plaintiff 11 told her doctors. These inconsistencies provide a clear and convincing reason to 12 discount Plaintiff’s subjective symptom testimony. 13 f. Reason Three: Failure to Follow Prescribed Treatment. 14 The ALJ largely discussed Plaintiff’s failure to follow treatment 15 recommended for her complaints of abdominal pain. AR 22. As noted in the 16 summary of medical evidence above, Plaintiff stopped or declined physical therapy 17 on multiple occasions, despite it being consistently recommended by her doctors. 18 AR 298, 294, 308, 324-35, 798. While Plaintiff alleged that she stopped pain 19 treatment for financial reasons, the record does not suggest the same for physical 20 therapy. A claimant’s failure to follow prescribed treatment suggests that his/her 21 condition as not as serious as alleged. See Bubion v. Barnhart, 224 Fed. App’x 22 601, 604 (9th Cir. 2007) (ALJ properly discounted plaintiff’s credibility based on 23 failure to follow prescribed treatment of physical therapy and plaintiff did not 24 provide an acceptable reason for not following prescribed course of treatment). 25 g. Reason Four: Inconsistency with Activities. 26 Plaintiff testified that on a “good” day, she spends “at least” 70% of the time 27 lying down with her right leg elevated on a pillow. AR 51. On a bad day, she does 28 not get out of bed except to use the bathroom. AR 52. The ALJ contrasted this 18 1 testimony with her reports that she “shopped, cleaned, performed yard-work, 2 cleaned the floor, cleaned the bathroom, cleaned the kitchen, and tended to plants.” 3 AR 20, citing AR 221-23. There is also evidence that Plaintiff traveled out of state 4 in July 2015 (AR 752), babysat her 4-year-old granddaughter in December 2016 5 (AR 1104), and traveled to Las Vegas with her husband in January 2017 (AR 6 1118). 7 Plaintiff argues that these inconsistencies are not a valid reason for 8 discrediting her testimony, because none of her reported activities are equivalent to 9 persisting at light work for 8 hours. (JS at 14.) The key question, however, is 10 whether Plaintiff’s reported activities are inconsistent with her claimed limitations. 11 See Lingenfelter, 504 F.3d at 1040 (noting that factor in reviewing testimony is 12 “whether the claimant engages in daily activities inconsistent with the alleged 13 symptoms”). The ALJ could rationally conclude that Plaintiff’s relatively normal 14 reported activities are inconsistent with spending “at least” 70% of her “good” 15 days lying down. 16 IV. 17 CONCLUSION 18 For the reasons stated above, IT IS ORDERED that judgment shall be 19 entered AFFIRMING the decision of the Commissioner. 20 21 22 23 24 DATED: June 25, 2019 ______________________________ KAREN E. SCOTT United States Magistrate Judge 25 26 27 28 19
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
