Donald Irwin v. Nancy A. Berryhill, No. 5:2019cv00523 - Document 26 (C.D. Cal. 2020)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen E. Scott. For the reasons stated above, IT IS ORDERED that judgment shall be entered AFFIRMING the decision of the Commissioner. (es)
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Donald Irwin v. Nancy A. Berryhill Doc. 26 1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DONALD EVERETT I., Jr. 12 13 14 15 Case No. 5:19-cv-00523-KES Plaintiff, MEMORANDUM OPINION AND ORDER v. ANDREW M. SAUL, Commissioner of Social Security,1 Defendant. 16 17 18 I. 19 PROCEDURAL BACKGROUND 20 Plaintiff Donald Everett I., Jr. (“Plaintiff”) applied for Titles II and XVI 21 Social Security disability insurance benefits in December 2014, alleging disability 22 commencing October 1, 2008, with a date last insured (“LDI”) of December 21, 23 2010. Administrative Record (“AR”) 262-69. On April 13, 2018, an 24 Administrative Law Judge (“ALJ”) conducted a hearing at which Plaintiff, who 25 was represented by an attorney, appeared and testified, as did a vocational expert 26 27 28 1 Andrew Saul is now the Commissioner of Social Security and is automatically substituted as a party pursuant to Fed. R. Civ. P. 25(d). 1 Dockets.Justia.com 1 (“VE”). AR 38-68. On May 4, 2018, the ALJ issued an unfavorable decision. AR 2 14-37. 3 The ALJ found that Plaintiff suffered from medically determinable severe 4 impairments including diabetes with peripheral neuropathy, degenerative disc 5 disease, pancreatitis, osteoarthritis of the right knee, and bipolar disorder. AR 20. 6 The ALJ considered the following medical opinion evidence about the functional 7 limitations caused by these impairments: 8 • Psychological consultative examiner Dr. Kara Cross opined that 9 Plaintiff’s mental illness was non-severe (AR 542-43); 10 • State agency reviewing psychiatrist Dr. H. Amado opined that 11 Plaintiff had some “moderate” limitations, so “perhaps” an RFC for 12 “unskilled” would be “more appropriate” (AR 79-80, 83); 13 • Orthopedic consultative examinerDr. Herman Schoene opined that 14 Plaintiff could do “medium” work (AR 549); and 15 • State agency reviewing physician Dr. Joel Ross endorsed Dr. 16 Schoene’s opinions as consistent with the treating records (AR 78). 17 Synthesizing these opinions, the ALJ found that despite his impairments, 18 Plaintiff had the residual functional capacity (“RFC”) to perform “light” work with 19 some additional limitations, including a limitation to “unskilled work in a 20 nonpublic setting” to address limitations caused by Plaintiff’s mental impairments. 21 AR 22. 22 Based on this RFC and the VE’s testimony, the ALJ found that Plaintiff 23 could work as a mail clerk, routing clerk, or plastic products assembler. AR 30. 24 The ALJ concluded that Plaintiff was not disabled, either from October 1, 2008, 25 through his LDI of December 31, 2010, or from the date of his application 26 (December 4, 2014) through the date of the ALJ’s decision (May 9, 2018). AR 23, 27 31. 28 2 1 II. 2 ISSUE PRESENTED 3 This appeal presents the sole issue of whether the ALJ gave clear and 4 convincing reasons for discounting Plaintiff’s testimony regarding the limiting 5 effects of his pain and mental illness. (Dkt. 25, Joint Stipulation [“JS”] at 4.) 6 It is the ALJ’s role to evaluate the claimant’s testimony regarding subjective 7 pain or symptoms. See Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). 8 “[T]he ALJ is not required to believe every allegation of disabling pain, or else 9 disability benefits would be available for the asking, a result plainly contrary to 42 10 U.S.C. § 423(d)(5)(A).” Id. at 1112. An ALJ’s assessment of symptom severity is 11 entitled to “great weight.” Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989). 12 If an individual alleges impairment-related symptoms, the ALJ must 13 evaluate those symptoms using a two-step process. First, “the ALJ must determine 14 whether the claimant has presented objective medical evidence of an underlying 15 impairment ‘which could reasonably be expected to produce the pain or other 16 symptoms alleged.’” Treichler v. Comm’r of SSA, 775 F.3d 1090, 1102 (9th Cir. 17 2014) (citation omitted). Second, if the claimant meets the first test, the ALJ may 18 discredit the claimant’s subjective symptom testimony only upon making specific 19 findings that support the conclusion. Berry v. Astrue, 622 F.3d 1228, 1234 (9th 20 Cir. 2010). Absent a finding or affirmative evidence of malingering, the ALJ must 21 provide “clear and convincing” reasons for rejecting the claimant’s testimony. 22 Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996). If the ALJ’s findings are 23 supported by substantial evidence in the record, courts may not engage in second- 24 guessing. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 25 III. 26 SUMMARY OF RELEVANT EVIDENCE 27 The Origin of Plaintiff’s Impairments. 28 Plaintiff was born in 1965. AR 551. He was diagnosed with depression in 3 1 1979. AR 537. He graduated from high school and completed two or three years 2 of welding college in 1995 without special education services. AR 54, 297, 437, 3 538. In 2000, he began working in automotive sales, and he continued to do so 4 until he was laid off, which per earnings records and Plaintiff’s representations was 5 in 2008 or 2009—although elsewhere Plaintiff claimed to be working after 2009. 6 See AR 43-44, 273, 298, 458, 546; compare AR 644 (stating in January 2011 that 7 “several weeks ago” he injured himself “at work”). 8 According to Plaintiff, he experienced two major medical events in 2008. 9 First, in August 2008, Plaintiff was hospitalized as a danger to self. AR 437. At 10 that time, he had a history of depression, but he was not taking any medications to 11 manage that condition. Id. He had struggled with alcoholism since he started 12 drinking at age 19, with periods of sobriety that lasted only a few months. AR 437, 13 439, 538. He took classes for a “history of DUIs,” and he reported a history of 14 abusing harder drugs. AR 460. He could not remember what prompted his August 15 2008 hospital admission, but his girlfriend reported that he was intoxicated and 16 acting erratically. AR 439. After a few days of “detox” and starting anti- 17 depressants, Plaintiff was discharged “feeling much better.” AR 437-38. His 18 doctors opined that he would be “stable” if he complied with “medication and 19 outpatient treatment.” AR 438. 20 Second, sometime near the end of 2008, Plaintiff reports that he suffered an 21 accident playing softball. AR 454, 562. He was running the bases when his “right 22 knee gave way” and he “tumbled forward.” AR 546. He dislocated a finger and 23 reported a stiff shoulder. AR 454, 546. After leaving the hospital, he felt 24 paralyzed, so he was taken back to the hospital where he was diagnosed with a 25 fractured neck bone. AR 546, 562. According to Plaintiff, he underwent spinal 26 fusion surgery about two weeks later to address this. AR 562. 27 28 According to Plaintiff’s medical records, however, his spinal fusion surgery occurred in January 2010. AR 582. He told his doctors that he was working as a 4 1 “carpenter/contractor” and “developed neck pain from his job to where he is 2 unable to raise his head from consistent muscle spasms.” Id. Imaging showed 3 “grade I spondylolisthesis” with some degenerative disc changes. AR 582-83. 4 The fusion surgery was conducted to address degenerative disc disease, and the 5 surgical records say nothing about a bone fracture. AR 584. Plaintiff was 6 restricted against “sports” and “strenuous activities” until his follow-up 7 appointment in two weeks. AR 618, 636. 8 9 10 A March 11, 2010 post-surgical evaluation noted, “Stable fusion C5, C6 and C4 with prosthetic discs in place.” AR 587. On March 18, 2010, Plaintiff reported that he was “hit in the side of his neck 11 … with a flat iron then fell into doorway, hitting the right side of his neck.” AR 12 638. He had been drinking. Id. At that time (i.e., more than a year after his 13 claimed onset date), he had a full range of motion (“ROM”) in his back without 14 pain. AR 639. 15 A few months later in June 2010, Plaintiff claimed that he “fell 1-2 feet 16 while walking and landed on a concrete surface.” AR 641. Staff at the emergency 17 room (“ER”) determined that his ability to provide a history was “limited by 18 intoxication and agitation,” and he was unable to walk. Id. The diagnostic 19 impression was “[p]robable chronic cervical strain.” AR 641. 20 Subsequent Mental Health Treatment. 21 From August 2008 through August 2010, Plaintiff attended outpatient 22 therapy. AR 450-60, 462-81. He temporarily stopped drinking in August 2008 but 23 reported increased stress due to physical pain issues and financial issues, including 24 being divorced three times. AR 440, 452-53. In October 2008, one objective of 25 his treatment was to “work on career path,” and he considered becoming a 26 contractor.2 AR 455. In May and October 2009, his attention, concentration, and 27 28 2 He apparently accomplished this objective, because in February 2011, he 5 1 thought process were all assessed as within normal limits. AR 471, 473. 2 Around Thanksgiving 2010, Plaintiff started drinking again. AR 505. By 3 February 2011, Plaintiff was “non-compliant on psych meds.” AR 499. He was 4 hospitalized again as a 5150 (i.e., danger to self or others). AR 504. At that time, 5 he reported no suicidal ideations, but he had punched his father in the face and was 6 “uncooperative” with the police. AR 505-06. He accused the officers of having an 7 affair with his wife, and they tazed him. AR 505. He told the hospital staff that he 8 was working as a contractor. Id. 9 Sometime in 2011, Plaintiff was incarcerated for 8 months. AR 467. He 10 resumed outpatient therapy in January 2012 but had trouble paying for his 11 prescriptions. AR 465, 467. He reported sobriety since February 2011. AR 466. 12 In July 2013, he was incarcerated again for 69 days for DUI. AR 462. He 13 resumed outpatient treatment in October 2013, at which point he tried to stop 14 drinking again. AR 462, 538. He was scheduled for a follow-up appointment in 2 15 months, but there is no record of more therapy in 2013. Id. 16 In fact, the next record dates from January 2015, at which time Plaintiff 17 underwent a psychological evaluation. AR 536. At that time, he could not name 18 any current treating psychologist or psychiatrist. AR 538. Nevertheless, he 19 reported taking Lorazepam/Ativan (an anti-anxiety drug), Fluoxetine/Prozac (a 20 selective serotonin reuptake inhibitor), and Zolpidem/Ambien (a sedative). Id. He 21 told the examiner, Dr. Cross, that his pain, not his mental illness, precluded him 22 from working. AR 537. He also reported four mental health hospitalizations, each 23 occurring when he was intoxicated. AR 538. Despite this history, he reported that 24 he could manage his own funds, relate with friends and family, ride the bus, use a 25 cell phone, and leave the house alone. AR 539. Dr. Cross assessed no significant 26 limitations on Plaintiff’s vocational opportunities attributable to his mental 27 28 told medical sources that he was working as a contractor. AR 505. 6 1 condition. AR 542-43. 2 There are no subsequent treating records for mental illness other than 3 records from Plaintiff’s primary care doctors at Yucca Family Medical Care 4 (“YFMC”) who prescribed medications for him. 5 At the April 2018 hearing, Plaintiff reported that he was still drinking, 6 sometimes five or six beers at a time. AR 54. He tried medical marijuana, but that 7 did not work. AR 55. 8 Subsequent Pain Treatment and Exertional Activities. 9 In September 2008, Plaintiff was able to pursue hobbies such as building 10 “choppers” and working on cars. AR 458. In April 2009, Plaintiff was able to take 11 care of his parents who were in “poor health” while he was “off work due to 12 stress.” AR 453, 458. 13 In January 2011, Plaintiff went to the ER complaining of a “twisting injury” 14 to his right knee that happened “several weeks ago … at work.” AR 644. At that 15 time, ER staff assessed his neck, back, and gait as normal. Id. After an x-ray, 16 Plaintiff was diagnosed as suffering a knee sprain; he was given pain medication 17 and crutches. AR 644-46. 18 In February 2011, Plaintiff returned to the ER (although he was currently in 19 jail) still using crutches and complaining new knee pain. AR 647. He was given 20 more pain medication and instructed to do “exercise for ROM with knee” three 21 times daily. AR 648. 22 In March 2011, imaging of Plaintiff’s knees revealed “mild to moderate 23 osteoarthritis” on the right and no degenerative changes on the left. AR 493, 498. 24 Imaging of Plaintiff’s cervical spine revealed no acute fracture. AR 498. 25 There is a two-year gap in Plaintiff’s treating record until April 2013. AR 26 651. He told ER staff that he was “cleaning out one of his renters apt and throwing 27 away some trash when he was stuck in the back of the hand with dirty needles …. 28 Pt states he went back to his workshop and was stuck a second time in the left palm 7 1 ….” AR 658. At that time, he was able to walk. AR 656. He claimed pain where 2 he was stuck, but he denied musculoskeletal, joint, and muscle pain. AR 652, 657. 3 In July 2013, while in prison, Plaintiff reported an accident involving a 300- 4 pound inmate who fell on him with his “feet on [Plaintiff’s] neck.” AR 573. After 5 being released, Plaintiff thought that he was “getting better then pt started working 6 on his house and for the past 2 [days] has had a flare up of symptoms.” Id. Desert 7 Oasis Health Care declined to prescribe Norco until Plaintiff established a primary 8 care relationship with a doctor. AR 575. 9 In August 2013, Plaintiff underwent more medical imaging of his cervical 10 and lumbar spine. This testing showed his prior neck surgery (i.e., fusion of C4 to 11 C6 with discectomies) and concluded his neck was “stable.” AR 485. Doctors 12 noted evidence of degenerative disc disease. Id. 13 In September 2013, Plaintiff fell off a ladder and reported neck, back, and 14 left-ankle pain to the ER. AR 668-70. He was able to walk into the ER, and he 15 displayed a full neck ROM. AR 670, 678. X-rays revealed no fractures, and he 16 left with pain medication. AR 671, 680-82, 688. 17 After about a year, in August 2014 Plaintiff established a treating 18 relationship with Yucca Family Medical Care (“YFMC”). AR 520. He obtained 19 more imaging of his spine and knees which showed largely mild degenerative 20 changes. AR 528-31. 21 Plaintiff next visited the ER in October 2014. He was at Walmart (or a 22 McDonalds in a Walmart) when he felt light-headed and fainted after taking “a 23 couple Ultrams,” which are narcotic-like pain relievers. AR 693-700, 703. He told 24 ER staff that he hit his head, but imaging revealed no head injuries. AR 704, 716. 25 At the time, he endorsed neck pain, but no other joint or muscle pain. AR 695, 26 703. He told ER staff that he could conduct his activities of daily living 27 independently, although he used a cane. AR 704. 28 In November 2014, Plaintiff returned to the ER complaining of another fall. 8 1 AR 576-77. He reported walking with a cane when his right knee gave out. AR 2 576. A physical examination revealed a normal left knee and “right knee pain with 3 ROM.” Id. The ER recommended muscle strengthening exercises. AR 577. 4 In December 2014, YFMC referred Plaintiff for specialized pain 5 management. AR 514. Plaintiff reported that he was using Norco every 4-6 hours, 6 such that he had run out and it was “too early” to refill his prescription. AR 513. 7 His appointment was scheduled for May 2015. AR 512. 8 Meanwhile, in January 2015, Plaintiff underwent a psychological evaluation 9 that also evidences his physical condition at the time. He reported that he could 10 manage his own self-care and do some chores, like washing dishes, picking-up, 11 and shopping. AR 539. Plaintiff told Dr. Cross that he used a cane, but he did not 12 bring one to the evaluation, and he displayed an unimpaired gait. AR 537, 540. 13 In February 2015, Plaintiff underwent an orthopedic evaluation by Dr. 14 Schoene. AR 545. Dr. Schoene observed that Plaintiff used no assistive device 15 and displayed a “normal” gait with the ability to walk on his toes and heels 16 “without difficulty.” AR 547. Plaintiff had a full or normal ROM in his neck, 17 back, knees, and ankles. AR 547-48. He had normal motor strength and no 18 atrophy. AR 548. After examining Plaintiff and multiple 2014 x-rays, Dr. 19 Schoene opined that Plaintiff could do “medium” work. AR 549. 20 In May 2015, Plaintiff had his initial appointment with pain care specialist 21 Dr. Loomba at Global Pain Care (“Global”). AR 562. Plaintiff told Dr. Loomba 22 that he had tried many pain therapies unsuccessfully (including physical therapy,3 23 epidural injections, chiropractic treatments, and massage), but there are no records 24 of such therapies in the AR before May 2015. Id. Dr. Loomba ordered additional 25 imaging of Plaintiff’s spine which showed mild to moderate degenerative changes. 26 27 28 3 A note dated June 4, 2010 states “Go to PT,” but there are no records of any physical therapy sessions. AR 469. 9 1 AR 557-58, 564. Plaintiff also signed a “narcotic contract,” agreeing that he would 2 only get narcotic pain medication from Dr. Loomba. AR 564. 3 At his follow-up Global appointment on June 15, 2015, Plaintiff complained 4 of chronic neck and back pain that averaged 9/10 in intensity. AR 559-60. A 5 physical examination revealed some spinal tenderness and increased pain with 6 flexion and extension of the spine. AR 560. Plaintiff’s motor strength, however, 7 was 5/5, and a straight-leg raising test was negative. Id. Per Dr. Loomba’s 8 instruction, Plaintiff brought a note from YFMC indicating that it would not 9 prescribe Norco anymore, so that all of Plaintiff’s pain medications would come 10 11 from one physician and one pharmacy. AR 561, 564, 923 (note). A few days later on June 27, 2015, Plaintiff went to the ER complaining of 12 toe pain about six weeks after getting a pedicure in a nail salon. AR 726-27. At 13 that time, he endorsed drinking alcohol again. AR 728. The ER staff diagnosed 14 him with cellulitis secondary to diabetes. AR 731. 15 On July 3, 2015, Plaintiff returned to Global. AR 880. The results of his 16 physical examination were the same as in May, but he reported his pain as 10/10. 17 AR 881. 18 On July 23, 2015, Plaintiff went to YFMC to follow up on his toe pain. AR 19 928. He was referred to a podiatrist, but there is no record that he pursued that 20 referral. Id. 21 In August 2015, Plaintiff returned to Global and reported that his new 22 medications were helping, reducing his pain to 8/10. AR 877. He received a 23 steroid injection and achieved 25% pain relief for three weeks. AR 872, 875. 24 About a week after the injection, however, Plaintiff went to YFMC for 25 26 “refills on all meds.” AR 927. On September 4, 2015, Plaintiff went to the ER complaining of abdominal 27 pain. AR 740. A scan of his abdomen revealed a “markedly abnormal pancreas.” 28 AR 758. He was diagnosed as suffering from dehydration due to renal 10 1 insufficiency. AR 746. He was given intravenous hydration and discharged, at 2 which point he left the ER walking. AR 753, 766. 3 Three days later he was back at the ER complaining of worsening abdominal 4 pain. AR 766. He was diagnosed with duodenitis (inflammation of the duodenum, 5 the first part of the small intestine). AR 772. After his condition “improved 6 markedly,” he was discharged with a prescription for Hydrocodone and 7 instructions to follow up with his primary doctor. AR 770, 774, 787. 8 9 Two days later on September 9, 2015, he returned to Global. AR 872. He told Dr. Loomba that the ER had treated him for an infection and prescribed 10 antibiotics, but he did not tell Dr. Loomba about the Hydrocodone. Id. Plaintiff 11 rated his pain 7/10, and his physical examination was unchanged from May 2015. 12 AR 973. 13 A few days later on September 14, 2015, Plaintiff was back in the ER 14 complaining of ALOC (altered level of consciousness). AR 788. One of his 15 housemates had called 911. AR 789. ER staff conducted a physical examination 16 and assessed Plaintiff’s back and extremities as “normal.” AR 791. He was given 17 two liters of NS [normal saline] and prepared for transfer to a facility for dialysis 18 services. AR 792. He was diagnosed as suffering from renal insufficiency and 19 mild pulmonary edema. AR 796, 808. 20 At Plaintiff’s next Global appointment on October 8, 2015, he reported pain 21 at 9/10, although he also claimed that medications were helping. AR 869. A 22 physical examination noted no ankle problems. AR 807. Dr. Loomba increased 23 his Norco. AR 870. 24 On the very same day, Plaintiff went to YFMC complaining of ankle pain 25 and swelling that had started three weeks earlier. AR 925. He was referred to an 26 endocrinologist, but there is no record that he pursued that referral. Id. 27 28 In November 2015, Plaintiff told Global that his pain was 7/10. AR 866-67. He received another injection for pain relief in December 2015. AR 861, 864. 11 1 On January 4, 2016, Plaintiff told Global that his pain had increased to 2 10/10, but he also reported that medication was helping. AR 861. His physical 3 examination was unchanged from May 2015, and there is no mention of him using 4 a cane. AR 862. 5 On January 28, 2016, Plaintiff told YFMC that he was still bothered by a 6 “spinal cord injury from a baseball accident.” AR 921. He was there “for Norco” 7 and walking with a cane. Id. 8 9 The next day, Plaintiff told Global that his pain was back down to 8/10 and his medications were helping. AR 858. Dr. Loomba changed Plaintiff’s Norco 10 prescription to Percocet, but Plaintiff did not disclose that he had received a Norco 11 prescription from YFMC the prior day. AR 859. Global observed for the first time 12 that Plaintiff was using a cane to walk. Id. 13 On February 12, 2016, Plaintiff went to YFMC complaining of left-leg pain 14 due to a fall he suffered five days earlier. AR 919. YFMC referred him to the ER. 15 Id. 16 At the ER, Plaintiff complained of left ankle pain after “tripping” in his 17 kitchen. AR 820, 824; compare AR 915 (ankle injury happened while walking to 18 the refrigerator; he “didn’t trip, fall, kick, or any other trauma. He just heard a 19 crush and fell down.”) Plaintiff denied neck or back pain, displayed a normal 20 ROM, and arrived at the ER ambulatory. AR 822, 829. X-rays showed a “distal 21 fibula fracture.” AR 824. He departed with a leg splint and crutches to use 22 temporarily. AR 831-32. 23 He returned to YFMC a few days later on February 16, 2016. AR 917. He 24 told YFMC that he went to the ER, but the “wait was too long” so he left. Id. 25 YFMC observed that Plaintiff appeared “drowsy” and was “slurring his words,” 26 accompanied by his mother. AR 917-18. YFMC re-applied his leg splint and 27 referred him to orthopedics for a leg cast. AR 918. YFMC also refilled his Norco 28 prescription. Id. 12 1 On March 8, 2106, Plaintiff underwent an open reduction and internal 2 fixation procedure to fix his broken ankle, after which he was put in a cast. AR 3 851. 4 5 On March 24, 2016, he returned to Global, reporting pain at 9/10, wearing a cast on his left ankle, and using crutches. AR 855-56. 6 On April 5, 2016, he returned to YFMC, advised them of his surgery, and 7 received another Norco refill. AR 909-10. He also reported having passed out 8 twice due to Zanaflex/Tizanidine (a muscle relaxant). AR 909. 9 A few days later, he went to Global for another pain injection to address 10 pack and neck pain. AR 853. He reported that the injection provided 70-80% pain 11 relief that lasted three weeks. AR 850. 12 Nevertheless, about a week later on April 26, 2016, he returned to YFMC 13 for another Norco refill. AR 908, 913. At that time, he had a full range of neck 14 motion and “normal” motor strength in his lower extremities. AR 913. 15 In May 2016, he told Global that his pain had been reduced to 5/10. AR 16 850-51. He was still wearing a walking boot on his left foot and using a cane. AR 17 851. 18 On June 7, 2016, Plaintiff told YFMC that he was experiencing 19 “uncontrolled leg pain” and needed medication refills, including Norco. AR 905- 20 06. A few days later on June 20, 2016, he returned to Global and reported 21 extensive pain with insufficient relief from medication. AR 847-48. By this point, 22 Dr. Loomba had learned that Plaintiff had been receiving Norco prescriptions from 23 other physicians and had last filled a Norco prescription on June 7. AR 848. 24 When Dr. Loomba asked Plaintiff about when he had last received a Norco 25 prescription, Plaintiff lied and said that it was “probably last month from a dentist” 26 and his recent prescription was for ibuprofen. AR 848. Dr. Loomba discontinued 27 his MS Contin and Percocet prescriptions and discharged him from Global’s 28 patient roster for breaching the narcotics contract. Id. 13 1 In July 2016, Plaintiff returned to YFMC complaining of “chronic body 2 pain.” AR 902. Although a physical examination was largely normal, he received 3 a Norco refill. AR 903. 4 5 6 At his August 2016 YFMC appointment, he reported that his “medications were stolen,” and he received more Norco. AR 899. In September 2016, Plaintiff had a supple neck, full ROM, normal motor 7 strength, and only mild foot tenderness. AR 896. There is no mention of him 8 using a cane. Id. 9 In October and November 2016, however, Plaintiff complained of neck, 10 knee, and ankle pain, and he used a cane. AR 891, 894. In December 2016, he 11 requested another referral to the pain care clinic. AR 889. 12 The final treating records are from January and March 2017. YFMC 13 observed that Plaintiff had normal physical examination results but walked with a 14 cane. AR 883, 885. 15 IV. 16 DISCUSSION 17 Summary of Plaintiff’s Subjective Symptom Testimony. 18 Plaintiff testified that he last worked in 2009 or early 2010 for Yucca Valley 19 Ford. AR 43. He testified that the psychiatric problems he was experiencing when 20 he stopped working were worse in 2018. AR 44. He described his then-present 21 symptoms as including auditory hallucinations in the last 18 months, severe 22 depression, panic attacks, and sleeplessness. AR 44, 46. He had panic attacks 23 “more often than not,” despite taking Alprazolam/Xanax. AR 44-45. He endorsed 24 having depressive episodes that could last a week or longer, during which time he 25 ignored personal self-care and his pet dog. AR 46. 26 Regarding his chronic pain, Plaintiff testified that his January 2010 neck 27 surgery initially provided some relief, but then “stuff got worse.” AR 47. He felt 28 “sharp, shooting” pain in his neck that radiated down his back to his hips and 14 1 tailbone. AR 48. His lower back pain radiated all the way to his feet. Id. He 2 testified that his neck and pack pain were “constant” and ranged between 4/10 to 3 9/10. AR 48-49. He testified that his right knee occasionally “pops out,” making 4 it “hard to put weight on the right knee,” which overburdens his left ankle. AR 49. 5 Sometimes, he could not bend because of pain caused by his pancreatitis. AR 50. 6 His left ankle was in constant pain, despite the surgically repaired fracture. AR 51. 7 He testified that he used a cane “off and on” since “the knee injury” (which he 8 does not identify), but he did not have to use it often. Id. 9 Plaintiff blamed his depression for being unable to remember people he has 10 known, forgetting things, and being unable to hold a thought in his mind for a long 11 period of time. AR 53. His last DUI conviction was in 2015, and he had a felony 12 conviction for pushing someone and causing great bodily injury. AR 55. 13 Plaintiff also completed a Function Report in January 2015. AR 312. He 14 reported problems with all areas of personal care, but he was able to feed his dog. 15 AR 313. He indicated that he did no household chores and “cannot finish anything 16 due to pain.” AR 314. He reported that he “rarely” went out and denied using 17 public transportation. AR 315. He could only walk 10 feet before needing to rest 18 for one or two hours. AR 317. He stated that he did not drive due to “medications 19 and pain,” not mentioning that his license had been revoked due to multiple DUIs. 20 AR 315. He met with “social groups” twice a week. AR 316. He indicated that he 21 had been prescribed a cane and brace “5 years ago” (i.e., in approximately January 22 2010) and used those aids “almost every day.” AR 318. 23 Summary of Relevant Administrative Proceedings. 24 The ALJ summarized Plaintiff’s testimony. AR 22-23. The ALJ found that 25 his statements “concerning the intensity, persistence and limiting effects of [his] 26 symptoms are not entirely consistent with the medical evidence and other evidence 27 in the record for reasons explained in this decision.” AR 23. 28 As reasons supporting this conclusion, the ALJ found that [1] Plaintiff’s 15 1 testimony was inconsistent with the objective medical evidence and other 2 evidence. AR 27. The ALJ also pointed to [2] the “routine, conservative care” 3 Plaintiff received both for his mental and physical health. AR 24-25. The ALJ 4 discussed both gaps in treatment and the nature of the treatment received (i.e., 5 medication rather than surgeries or hospitalizations). AR 27. The ALJ also 6 discussed [3] how Plaintiff made inconsistent statements about his ability to 7 ambulate and need for a cane. AR 27. Finally, the ALJ noted [4] that none of 8 Plaintiff’s treating doctors had provided opinions restricting Plaintiff from any 9 work activities. Id. 10 11 12 Analysis of the ALJ’s Reasons. a. Reason One: Lack of Objective Support. “Although lack of medical evidence cannot form the sole basis for 13 discounting pain testimony,” ALJs may consider that factor in their analysis. 14 Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). 15 The results of Plaintiff’s physical examinations were largely unremarkable. 16 Often during his period of claimed disability due to back and neck pain, he denied 17 such pain and exhibited a full ROM. See, e.g., AR 639, 652, 657, 547-48, 822, 18 829, 913, 896. X-rays and other scans showed mild degenerative disc disease and 19 arthritis, but not physical changes so significant that they would be expected to 20 cause disabling pain—e.g., pain that prevents Plaintiff from walking for more than 21 10 feet without at least an hour’s rest. See, e.g., AR 644-46, 493, 498, 485, 671, 22 680-82, 688, 528-31, 557-58, 564. This was a clear and convincing reason to 23 discount Plaintiff’s testimony. 24 25 b. Reason Two: Conservative Treatment. A conservative course of treatment can provide reason to discount a 26 plaintiff’s subjective opinion testimony about the severity of an impairment. Parra 27 v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007). 28 Regarding Plaintiff’s mental health, the ALJ pointed out that the AR 16 1 contains evidence of a psychiatric hospitalization in August 2008 which coincided 2 with an episode of intoxication. AR 26, citing AR 437-48. Plaintiff obtained 3 treatment after this, and his mood stabilized with medications throughout 2009- 4 2011. AR 26, citing AR 456, 468-69, 471, 473. During this time, Plaintiff was 5 able to keep working. See, e.g., AR 458 (working in September 2008); AR 546 6 (working in February 2009); AR 582 (working as a contractor in January 2010); 7 AR 644 (working in January 2011 when he sustained a knee injury); AR 505 8 (working as a carpenter in February 2011 prior to his arrest); AR 658 (working as a 9 landlord in April 2013, cleaning out a renter’s apartment and maintaining a work 10 shop); AR 573 (working on house in November 2014).4 Plaintiff’s second 5150 11 hospitalization on February 23, 2011, also occurred after a “relapse” of his 12 alcoholism. AR 505. 13 The ALJ correctly found “minimal evidence of [mental health] treatment 14 throughout the remainder of the record” after 2011 except for medications 15 prescribed by Plaintiff’s primary care clinic, YFMC. AR 26-27. In 2015, Plaintiff 16 told Dr. Cross that the reason he was not working was physical, not mental. AR 17 537. Thus, the ALJ’s conclusion (i.e., that Plaintiff’s minimal mental health 18 treatment was inconsistent with what one would expect if someone were suffering 19 from disabling mental illness) is supported by substantial evidence. AR 27. It 20 provides a clear and convincing reasons to discount Plaintiff’s testimony about the 21 limiting effects of his mental illness. 22 Regarding pain treatment, the ALJ pointed out gaps in treatment, 23 unremarkable findings at physical examinations, and recommendations over the 24 course of years for pain medication, but not for more surgery. AR 24-25, 27. Per 25 the ALJ, Plaintiff’s neck and back pain responded well enough to steroid injections 26 27 28 4 Despite these references to work, Plaintiff has denied working after 2008 (see AR 298), and his earnings records show no earnings after 2008. See AR 273. 17 1 that he rarely complained of it after 2015. AR 27. While the Court disagrees with 2 this characterization of the record, it is true that during 2016, while Plaintiff 3 sometimes complained of chronic pain, sometimes he did not (AR 822, 829), and 4 he appears not to have sought or requested any treatment other than pain 5 medication. Furthermore, any error here was harmless given the ALJ’s other clear 6 and convincing reasons for discounting Plaintiff’s testimony, as described herein. 7 8 9 c. Reason Three: Inconsistent Statements about Cane Use. Where a claimant asserts that he/she must use a cane (although there is no evidence of medical necessity) or displays a limp only periodically, such facts 10 support a finding that the claimant is exaggerating his/her impairments. See, e.g., 11 Rojas v. Astrue, No. 10CV2461 JLS (RBB), 2012 U.S. Dist. LEXIS 36748, at *42 12 (S.D. Cal. Mar. 19, 2012) (holding that ALJ gave clear and convincing reason for 13 discounting claimant’s subjective symptom testimony where the ALJ described 14 how the claimant used a cane at a consultative evaluation and limped without it, 15 although there was “no medical basis for Plaintiff's cane use”). 16 Plaintiff argues that the ALJ failed to identify a true inconsistency. (JS at 17 10.) According to Plaintiff, he had good days and bad days, explaining his 18 sporadic use of a cane. (Id.) 19 Plaintiff’s representations regarding his cane use were inconsistent, 20 providing a further clear and convincing reason to discount his testimony. In 2015, 21 Plaintiff reported that a doctor had prescribed a cane for him in 2010, and he used 22 one “almost every day.” AR 318. There are no treating source records from 2010 23 recommending, let alone prescribing, a cane. In January 2015—the same month 24 that he claimed that he used a cane almost every day—he did not bring one to a 25 psychological evaluation, and his gait was unimpaired. See AR 537, 540. 26 Likewise, he did not bring a cane to a February 2015 orthopedic evaluation, and he 27 displayed a normal gait. AR 545, 547. Plaintiff’s medical records do not mention 28 a cane after that point until January 2016, when Plaintiff was seeking Norco from 18 1 both YFMC and Global, in violation of the agreement he signed. See AR 859, 2 921. As for the period between 2010 and 2015, Plaintiff’s records do not support 3 his claim that by 2015, he used a cane “almost every day.” To the contrary, in 4 2013, Plaintiff was “working on his house,” climbing ladders, and exhibiting 5/5 5 motor strength in his lower extremities. AR 573, 668-71. . This is not consistent 6 with using a cane “almost every day” as of January 2015. AR 318. 7 8 9 d. Reason Four: Doctors’ Failure to Restrict. Plaintiff argues that the ALJ unreasonably expected Plaintiff’s treating sources to provide opinions about work restrictions. (JS at 10.) In August 2008, 10 Charter Oak Hospital stated that Plaintiff was “still not able to be released for 11 work,” demonstrating that treating sources can and do provide such opinions when 12 appropriate. AR 468. The ALJ correctly noted that none of Plaintiff’s subsequent 13 treating records provide similar work-related restrictions. While alone this reason 14 might not be clear and convincing, it adds weight to the ALJ’s conclusion that 15 Plaintiff’s subjective symptom testimony was exaggerated. 16 Plaintiff argues that the ALJ overlooked Dr. Amado’s opinion that Plaintiff 17 could perform “detailed instructions clearly explained” but “permitting the full 18 range of unskilled work, including work requiring reasoning level 2.” (JS at 9 19 [citing Zavalin v. Colvin, 778 F.3d 842, 847 (9th Cir. 2015)].) To the extent 20 Plaintiff argues that the ALJ did not properly consider Dr. Amado’s opinion, 21 Plaintiff does not explain how a “full range of unskilled work” conflicts with Dr. 22 Amado’s opinion that Plaintiff could learn and retain most detailed instructions 23 clearly explained. 24 To the extent Plaintiff argues that the ALJ here erred in the same way 25 described in Zavalin: The plaintiff in Zavalin suffered from cerebral palsy, a 26 learning disorder, and a speech impairment, and the panel held that the ALJ erred 27 by failing to ask the VE how a person who could do only “simple jobs” could meet 28 Level 3 Reasoning requirements. Id. at 844. Here, assuming there is a conflict 19 1 between a limitation to “unskilled” work and Level 3 Reasoning, the ALJ relied on 2 the VE’s testimony to find that Plaintiff could work as routing clerk, DOT 3 222.687-022 (50,000 such positions in the national economy), which requires 4 Level 2 Reasoning. See AR 30; see also Gutierrez v. Comm’r of SSA, 740 F.3d 5 519, 529 (9th Cir. 2014) (finding 25,000 national jobs sufficient to be “significant” 6 under 42 U.S.C. § 1382c(a)(3)(B)5). 7 IV. 8 CONCLUSION 9 For the reasons stated above, IT IS ORDERED that judgment shall be 10 entered AFFIRMING the decision of the Commissioner. 11 12 DATED: March 23, 2020 13 ______________________________ KAREN E. SCOTT United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Section 1382c(a)(3)(B) defines “work which exists in the national economy” as “work which exists in significant numbers either in the region where such individual lives or in several regions of the country.” 20
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