Jose Serna v. Commissioner of Social Security Administration, No. 8:2017cv00394 - Document 18 (C.D. Cal. 2017)
Court Description: MEMORANDUM OPINION by Magistrate Judge Charles F. Eick. Plaintiff's motion for summary judgment is denied and Defendant's motion for summary judgment is granted. (sp)
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Jose Serna v. Commissioner of Social Security Administration Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 JOSE SERNA, ) ) Plaintiff, ) ) v. ) ) NANCY A. BERRYHILL, Acting ) Commissioner of Social Security, ) ) Defendant. ) ____________________________________) NO. SA CV 17-394-E MEMORANDUM OPINION 17 18 PROCEEDINGS 19 20 Plaintiff filed a Complaint on March 7, 2017, seeking review of 21 the Commissioner’s denial of benefits. The parties filed a consent to 22 proceed before a United States Magistrate Judge on March 28, 2017. 23 Plaintiff filed a motion for summary judgment on July 7, 2017. 24 Defendant filed a motion for summary judgment on September 6, 2017. 25 The Court has taken both motions under submission without oral 26 argument. 27 /// 28 /// See L.R. 7-15; “Order,” filed March 8, 2017. Dockets.Justia.com 1 BACKGROUND 2 3 In November of 2012, Plaintiff filed a claim for disability 4 insurance benefits, asserting an inability to work since April 1, 5 2003, based primarily on alleged back problems (Administrative Record 6 (“A.R.”) 16, 240, 274-75). 7 December 31, 2008 (A.R. 18). Plaintiff’s last insured date was 8 9 An Administrative Law Judge (“ALJ”) examined the lengthy record 10 and heard testimony from Plaintiff, a medical expert and a vocational 11 expert (A.R. 16-326, 334-1443). 12 December 31, 2008, Plaintiff retained the residual functional capacity 13 to perform a reduced range of light work (A.R. 19). 14 ALJ found Plaintiff “could on occasion lift at least 20 pounds, 15 frequently lift and carry up to 10 pounds; could stand and walk for at 16 least 4 hours in an 8-hour day; no limitations in sitting; could 17 occasionally climb, balance, stoop, kneel, crouch; never was able to 18 use ladders, ropes, scaffolds; and never able to crawl” (A.R. 19). The ALJ found that, as of Specifically, the 19 20 In reliance on the testimony of the vocational expert, the ALJ 21 found that a person with these limitations could perform certain jobs 22 existing in significant numbers (A.R. 24-25, 57-60). 23 Council considered additional evidence but denied review (A.R. 1-4). The Appeals 24 25 SUMMARY OF PLAINTIFF’S ARGUMENT 26 27 Plaintiff argues that the ALJ erred by: (1) discounting the 28 credibility of Plaintiff’s subjective complaints; (2) discounting the 2 1 opinion of a non-treating, examining physician; (3) allegedly failing 2 properly to consider a “functional capacity evaluation”; (4) allegedly 3 failing properly to consider Plaintiff’s asserted lack of English 4 language skills; and (5) crediting the testimony of the vocational 5 expert. 6 7 STANDARD OF REVIEW 8 9 Under 42 U.S.C. section 405(g), this Court reviews the 10 Administration’s decision to determine if: (1) the Administration’s 11 findings are supported by substantial evidence; and (2) the 12 Administration used correct legal standards. 13 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 14 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 15 682 F.3d 1157, 1161 (9th Cir. 2012). 16 relevant evidence as a reasonable mind might accept as adequate to 17 support a conclusion.” 18 (1971) (citation and quotations omitted); see also Widmark v. 19 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). See Carmickle v. Substantial evidence is “such Richardson v. Perales, 402 U.S. 389, 401 20 21 If the evidence can support either outcome, the court may 22 not substitute its judgment for that of the ALJ. 23 Commissioner’s decision cannot be affirmed simply by 24 isolating a specific quantum of supporting evidence. 25 Rather, a court must consider the record as a whole, 26 weighing both evidence that supports and evidence that 27 detracts from the [administrative] conclusion. 28 /// 3 But the 1 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 2 quotations omitted). 3 4 Where, as here, the Appeals Council considered additional 5 evidence but denied review, the additional evidence becomes part of 6 the record for purposes of the Court’s analysis. 7 Commissioner, 682 F.3d at 1163 (“[W]hen the Appeals Council considers 8 new evidence in deciding whether to review a decision of the ALJ, that 9 evidence becomes part of the administrative record, which the district See Brewes v. 10 court must consider when reviewing the Commissioner’s final decision 11 for substantial evidence”; expressly adopting Ramirez v. Shalala, 8 12 F.3d 1449, 1452 (9th Cir. 1993)); Taylor v. Commissioner, 659 F.3d 13 1228, 1231 (2011) (courts may consider evidence presented for the 14 first time to the Appeals Council “to determine whether, in light of 15 the record as a whole, the ALJ’s decision was supported by substantial 16 evidence and was free of legal error”); Penny v. Sullivan, 2 F.3d 953, 17 957 n.7 (9th Cir. 1993) (“the Appeals Council considered this 18 information and it became part of the record we are required to review 19 as a whole”); see generally 20 C.F.R. §§ 404.970(b), 416.1470(b). 20 21 DISCUSSION 22 23 After consideration of the record as a whole, Defendant’s motion 24 is granted and Plaintiff’s motion is denied. 25 findings are supported by substantial evidence and are free from 26 /// 27 /// 28 /// 4 The Administration’s 1 material1 legal error. Plaintiff’s contrary arguments are unavailing. 2 3 I. Substantial Evidence Supports the ALJ’s Denial of Benefits. 4 5 In order for Plaintiff to be eligible for disability insurance 6 benefits, Plaintiff must establish that he became disabled prior to 7 the expiration of his insured status. 8 416(i)(3)(A); 20 C.F.R. 404.131; see also Vertigan v. Halter, 260 F.3d 9 1044, 1047 (9th Cir. 2001); Flaten v. Secretary of Health and Human 10 Services, 44 F.3d 1453, 1458 (9th Cir. 1995) (where claimants apply 11 for benefits after the expiration of their insured status based on a 12 current disability, the claimants “must show that the current 13 disability has existed continuously since some time on or before the 14 date their insured status lapsed”). 15 supports the ALJ’s decision that Plaintiff was not disabled at the 16 time Plaintiff’s insured status expired. 17 treating physician during the alleged period of disability, then 18 believed Plaintiff could perform light work (A.R. 533). 19 physician’s opinion “is generally afforded the greatest weight in 20 disability cases. . . .” 21 (9th Cir. 1991). 22 Plaintiff should be precluded only from heavy lifting, prolonged 23 standing and walking and repetitive lifting and kneeling (A.R. 1458). 24 The testifying medical expert believed Plaintiff had a residual See 42 U.S.C. § 416(i)(2)(C), Substantial medical opinion Dr. Max Matos, Plaintiff’s A treating Tonapetyan v. Halter, 242 F.3d 1144, 1149 Another examining physician expressed the opinion 25 26 1 27 28 The harmless error rule applies to the review of administrative decisions regarding disability. See Garcia v. Commissioner, 768 F.3d 925, 932-33 (9th Cir. 2014); McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011). 5 1 functional capacity greater or equal to the capacity the ALJ found to 2 have existed (A.R. 47-48). 3 expressed similar opinions (A.R. 100, 109, 113). Non-examining state agency physicians 4 5 To the extent any of the medical evidence was in conflict, it was 6 the prerogative of the ALJ to resolve such conflicts. See Lewis v. 7 Apfel, 236 F.3d 503, 509 (9th Cir. 2001). 8 susceptible to more than one rational interpretation,” the Court must 9 uphold the administrative decision. When evidence “is See Andrews v. Shalala, 53 F.3d 10 1035, 1039-40 (9th Cir. 1995); accord Thomas v. Barnhart, 278 F.3d 11 947, 954 (9th Cir. 2002); Sandgathe v. Chater, 108 F.3d 978, 980 (9th 12 Cir. 1997). 13 of the evidence in the present case notwithstanding any conflicts in 14 the record. The Court will uphold the ALJ’s rational interpretation 15 16 The vocational expert testified that a person with the residual 17 functional capacity the ALJ found to exist could perform jobs existing 18 in significant numbers (A.R. 57-60). 19 testimony in denying disability benefits. 20 Health and Human Services, 882 F.2d 1474, 1478-80 (9th Cir. 1989); 21 Martinez v. Heckler, 807 F.2d 771, 774-75 (9th Cir. 1986). The ALJ properly relied on this See Barker v. Secretary of 22 23 II. Plaintiff’s Contrary Arguments are Unavailing. 24 25 The Court has considered and rejected each of Plaintiff’s 26 arguments. 27 /// 28 The Court discusses Plaintiff’s principal arguments below. /// 6 1 A. Plaintiff’s Credibility 2 3 The ALJ found Plaintiff’s subjective complaints less than fully 4 credible (A.R. 20-24). An ALJ’s assessment of a claimant’s 5 credibility is entitled to “great weight.” 6 F.2d 1121, 1124 (9th Cir. 1990); Nyman v. Heckler, 779 F.2d 528, 531 7 (9th Cir. 1985). 8 determinable impairments reasonably could be expected to cause some 9 degree of the alleged symptoms of which the claimant subjectively Anderson v. Sullivan, 914 Where the ALJ finds that the claimant’s medically 10 complains, any discounting of the claimant’s complaints must be 11 supported by specific, cogent findings. 12 1228, 1234 (9th Cir. 2010); Lester v. Chater, 81 F.3d 821, 834 (9th 13 Cir. 1995); but see Smolen v. Chater, 80 F.3d 1273, 1282-84 (9th Cir. 14 1996) (indicating that ALJ must offer “specific, clear and convincing” 15 reasons to reject a claimant’s testimony where there is no evidence of 16 malingering).2 17 specific to allow a reviewing court to conclude the ALJ rejected the 18 claimant’s testimony on permissible grounds and did not arbitrarily 19 discredit the claimant’s testimony.” 20 885 (9th Cir. 2004) (internal citations and quotations omitted); see See Berry v. Astrue, 622 F.3d An ALJ’s credibility findings “must be sufficiently Moisa v. Barnhart, 367 F.3d 882, 21 22 23 24 25 26 27 28 2 In the absence of an ALJ’s reliance on evidence of “malingering,” most recent Ninth Circuit cases have applied the “clear and convincing” standard. See, e.g., Brown-Hunter v. Colvin, 806 F.3d 487, 488-89 (9th Cir. 2015); Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014); Treichler v. Commissioner, 775 F.3d 1090, 1102 (9th Cir. 2014); Ghanim v. Colvin, 763 F.3d 1154, 1163 n.9 (9th Cir. 2014); Garrison v. Colvin, 759 F.3d 995, 1014-15 & n.18 (9th Cir. 2014); see also Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting earlier cases). In the present case, the ALJ’s findings are sufficient under either standard, so the distinction between the two standards (if any) is academic. 7 1 Social Security Ruling 96-7p (explaining how to assess a claimant’s 2 credibility), superseded, Social Security Ruling 16-3p (eff. March 28, 3 2016).3 4 deeming Plaintiff’s subjective complaints less than fully credible. As discussed below, the ALJ stated sufficient reasons for 5 6 The ALJ appropriately relied on Plaintiff’s “treatment history,” 7 including his physicians’ recommendations of only “conservative” care, 8 in discounting Plaintiff’s credibility (A.R. 23). 9 record confirms the existence of lengthy periods without treatment and A review of the 10 lengthy periods with only conservative treatment. (See, e.g., A.R. 11 532, 614, 638, 753-54). 12 medical treatment frequently may discredit a claimant’s allegations of 13 disabling symptoms. 14 Cir. 2005); Batson v. Commissioner, 359 F.3d 1190, 1196 (9th Cir. 15 2004); Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995); accord 16 Bunnel v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991); Fair v. Bowen, 17 885 F.2d 597, 603-604 (9th Cir. 1989); see also Chavez v. Department 18 of Health and Human Serv., 103 F.3d 849, 853 (9th Cir. 1996) (failure 19 to seek “further treatment” for back injury among specific findings 20 justifying rejection of claimant’s excess pain testimony). An unexplained failure to seek significant See Burch v. Barnhart, 400 F.3d 676, 681 (9th Similarly, 21 22 3 23 24 25 26 27 28 Social Security Rulings (“SSRs”) are binding on the Administration. See Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). The appropriate analysis in the present case would be substantially the same under either SSR 96-7p or SSR 163p. See R.P. v. Colvin, 2016 WL 7042259, at *9 n.7 (E.D. Cal. Dec. 5, 2016) (observing that only the Seventh Circuit has issued a published decision applying Ruling 16-3p retroactively; also stating that Ruling 16-3p “implemented a change in diction rather than substance”) (citations omitted); see also Trevizo v. Berryhill, 2017 WL 4053751, at *9 n.5 (9th Cir. Sept. 14, 2017) (SSR 16-3p “makes clear what our precedent already required”). 8 1 the conservative nature of a claimant’s treatment properly may factor 2 into the evaluation of the claimant’s credibility. 3 Astrue, 533 F.3d 1035, 1039-40 (9th Cir. 2008); Parra v. Astrue, 481 4 F.3d 742, 751 (9th Cir. 2007), cert. denied, 552 U.S. 1141 (2008); 5 Osenbrock v. Apfel, 240 F.3d 1157, 1166 (9th Cir. 2001). See Tommasetti v. 6 7 The ALJ also stressed that the objective medical evidence 8 demonstrates that, during the relevant time period, Plaintiff’s 9 functional limitations were not as profound as Plaintiff now claims 10 (A.R. 21-24). While a lack of objective medical evidence to 11 corroborate the claimed severity of alleged symptomatology cannot form 12 the “sole” basis for discounting a claimant’s credibility, the 13 objective medical evidence is still a relevant factor. 14 Barnhart, 400 F.3d at 680; Rollins v. Massanari, 261 F.3d 853, 857 15 (9th Cir. 2001). See Burch v. 16 17 The ALJ also correctly observed that Plaintiff’s written 18 statements, as well as Plaintiff’s oral testimony, occurred years 19 after the relevant time period (A.R. 23). 20 the ALJ to question whether Plaintiff’s purported memory of long ago 21 alleged functional limitations accurately reflected Plaintiff’s actual 22 capacity during the relevant time period, particularly given the fact 23 that Plaintiff’s purported memory contradicted the opinions of 24 Plaintiff’s physicians. It was not illogical for 25 26 To the extent one or more of the ALJ’s stated reasons for 27 discounting Plaintiff’s credibility may have been invalid, the Court 28 nevertheless would uphold the ALJ’s credibility determination under 9 1 the circumstances presented. See Carmickle v. Commissioner, 533 F.3d 2 1155, 1162-63 (9th Cir. 2008) (despite the invalidity of one or more 3 of an ALJ’s stated reasons, a court properly may uphold the ALJ’s 4 credibility determination where sufficient valid reasons have been 5 stated). 6 to allow this Court to conclude that the ALJ discounted Plaintiff’s 7 credibility on permissible grounds. 8 at 885. 9 determination. In the present case, the ALJ stated sufficient valid reasons See Moisa v. Barnhart, 367 F.3d The Court therefore defers to the ALJ’s credibility See Lasich v. Astrue, 252 Fed. App’x 823, 825 (9th 10 Cir. 2007) (court will defer to Administration’s credibility 11 determination when the proper process is used and proper reasons for 12 the decision are provided); accord Flaten v. Secretary of Health & 13 Human Services, 44 F.3d at 1464.4 14 15 B. Non-Treating Examining Physician 16 17 Plaintiff argues that the ALJ improperly rejected the opinion of 18 Dr. John Godes, a non-treating examining physician. Unlike other 19 physicians, Dr. Godes opined that, at least in 2013, Plaintiff could 20 stand and walk only two hours out of an eight hour day (A.R. 1165-70). 21 The ALJ did not err in declining to adopt this particular opinion. 22 previously stated, the ALJ properly resolved conflicts in the medical 23 evidence. 24 25 26 27 28 4 The Court need not and does not determine herein whether Plaintiff’s subjective complaints are credible. Some evidence suggests that those complaints may be credible. However, it is for the Administration, and not this Court, to evaluate the credibility of witnesses. See Magallanes v. Bowen, 881 F.2d 747, 750, 755-56 (9th Cir. 1989). 10 As 1 Where an examining physician’s opinion is contradicted by another 2 physician’s opinion, as here, some Ninth Circuit authorities suggest 3 that an ALJ may reject the examining physician’s opinion only “by 4 providing specific and legitimate reasons that are supported by 5 substantial evidence.” 6 and footnote omitted); see also Lester v. Chater, 81 F.3d at 830-31. 7 However, at least one Ninth Circuit decision holds that an ALJ need 8 not explicitly detail the reasons for rejecting the contradicted 9 opinion of a non-treating examining physician. 10 Garrison v. Colvin, 759 F.3d at 1012 (citation See Nyman v. Heckler, 779 F.2d at 531. 11 12 In any event, the ALJ stated a specific, legitimate reason for 13 declining to adopt Dr. Godes’ opinion. The ALJ properly observed that 14 Dr. Godes’ opinion “was given almost five years after the close of the 15 date last insured. . . .” (A.R. 23). 16 to base his “two hour” opinion on Plaintiff’s “lumbar discogenic 17 disease,” Dr. Godes phrased this 2013 opinion in the present tense, 18 rather than purporting to render an opinion retrospective to 2008 19 (A.R. 1165-70). 20 Godes intended to opine on Plaintiff’s capabilities as of December 31, 21 2008, the ALJ did not err in discounting the opinion. 22 v. Schweiker, 749 F.2d 565, 567 (9th Cir. 1984) (ALJ properly 23 considered the remoteness of doctor’s opinion in weighing the value of 24 that opinion).5 Even though Dr. Godes appeared Even if, contrary to the phrasing of his opinion, Dr. See Lombardo 25 26 5 27 28 To the extent the ALJ erred by suggesting Dr. Godes’ “two hour” opinion was based on a combination of Plaintiff’s lumbar spine impairment and Plaintiff’s more recent left knee impairment, any such error was harmless. 11 1 C. “Functional Capacity Evaluation” 2 3 Plaintiff argues that the ALJ should have discussed and adopted a 4 “Functional Capacity Evaluation” found at pages 640-646 of the 5 Administrative Record. 6 author, elsewhere in the record Dr. Matos appears to have identified 7 the author as Rhonda Sandoval, a chiropractor (A.R. 528, 640-46). Although the document does not disclose its 8 9 For several reasons, the ALJ did not materially err by failing to 10 discuss or adopt the “Functional Capacity Evaluation.” An ALJ is not 11 required to discuss all evidence presented, and need explain why only 12 significant probative evidence has been rejected. 13 Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003); Vincent v. 14 Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984). 15 medical evidence in the record from medical doctors, the “Functional 16 Capacity Evaluation” was neither significant nor particularly 17 probative. 18 the applicable regulations. 19 Finally, the ALJ did discuss and rely to some extent on the opinions 20 of Dr. Matos (to whom the “Functional Capacity Evaluation”) appears to 21 have been directed). 22 Plaintiff could perform light work during the relevant time period. 23 /// 24 /// 25 /// 26 /// See Howard ex rel Compared with the A chiropractor is not an acceptable medical source under See 20 C.F.R. §§ 404.1513(a), (d)(1).6 As previously indicated, Dr. Matos believed 27 6 28 This version of the regulations applies to claims filed before March 27, 2017. 12 1 D. English Language Skills 2 3 Plaintiff argues the ALJ erred by finding that Plaintiff is 4 literate and can communicate in English. Any such error was harmless. 5 The hypothetical question to the vocational expert incorporated 6 Plaintiff’s contentions regarding his alleged lack of English 7 proficiency. 8 person so limited nevertheless could perform the jobs identified. According to the vocational expert (and the ALJ), a 9 10 Plaintiff appears to suggest that, if Plaintiff lacks English 11 language skills, the sedentary level Grids would compel a conclusion 12 of disability. 13 Plaintiff has a greater than sedentary exertional capacity. 14 example, the ALJ found that Plaintiff could stand and walk for four 15 hours out of an eight hour day, lift 20 pounds occasionally and lift 16 ten pounds frequently. 17 capacity exceeds the sedentary level and falls between the sedentary 18 level and the light level, the sedentary level Grids are inapplicable. 19 See Moore v. Apfel, 216 F.3d 864, 870-71 (9th Cir. 2000); Walker v. 20 Apfel, 197 F.3d 956, 958 (8th Cir. 1999); Brenneman v. Berryhill, 2017 21 WL 2298510, at *5-6 (W.D. Wash. May 26, 2017); Young v. Colvin, 2016 22 WL 4520885, at *5 (C.D. Cal. Aug. 29, 2016); Sankhar v. Colvin, 2015 23 WL 5664285, at *5-7 (D. Or. Sept. 21, 2015). 24 argument, SSR 83-12 confirms that the ALJ acted properly in seeking 25 the assistance of a vocational expert under the circumstances of the 26 present case: 27 /// 28 /// This argument must be rejected. The ALJ found For Where, as here, a claimant’s exertional 13 Contrary to Plaintiff’s 1 In situations where the rules would direct different 2 conclusions, and the individual’s exertional limitations are 3 somewhere “in the middle” in terms of the regulatory 4 criteria for exertional ranges of work, more difficult 5 judgments are involved as to the sufficiency of the 6 remaining occupational base to support a conclusion as to 7 disability. 8 vocational expert] assistance is advisable for these types 9 of cases. Accordingly, VS [vocational specialist or SSR 83-12, 1983 WL 31253, at *2-3. 10 11 E. Vocational Expert 12 13 Plaintiff appears to argue that the vocational expert did not 14 sufficiently support the expert’s testimony regarding the numbers of 15 jobs a person limited to four hours of standing and walking still 16 could perform. 17 absence of any contrary evidence, a VE’s [vocational expert’s] 18 testimony is one type of job information that is regarded as 19 inherently reliable. . . .” 20 (9th Cir. Sept. 5, 2017); see Bayliss v. Barnhart, 427 F.3d 1211, 1218 21 (9th Cir. 2005) (“A VE’s recognized expertise provides the necessary 22 foundation for his or her testimony. 23 is required”). 24 the testimony of the vocational expert. Contrary to Plaintiff’s argument, “at least in the Buck v. Berryhill, 2017 WL 3862450, at *7 Thus, no additional foundation Plaintiff presented no vocational evidence contrary to 25 26 Plaintiff also appears to argue that the vocational expert’s 27 testimony conflicted with the Dictionary of Occupational Titles 28 (“D.O.T.”). No cognizable conflict existed. 14 “For a difference 1 between an expert’s testimony and the [D.O.T.’s] listings to be fairly 2 characterized as a conflict, it must be obvious or apparent.” 3 Gutierrez v. Colvin, 844 F.3d 804, 808 (9th Cir. 2016). 4 “obvious or apparent” conflict between the vocational expert’s 5 testimony and the D.O.T. 6 job of bench assembler purports to preclude the performance of the job 7 by a person limited to standing/walking for four hours per day. 8 D.O.T. 706.684-022. There was no For example, nothing in the D.O.T. for the See 9 10 CONCLUSION 11 12 For all of the foregoing reasons, Plaintiff’s motion for summary 13 judgment is denied and Defendant’s motion for summary judgment is 14 granted. 15 16 LET JUDGMENT BE ENTERED ACCORDINGLY. 17 18 DATED: September 18, 2017. 19 20 21 /S/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 15
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