Della v. Berryhill, No. 3:2017cv01374 - Document 22 (S.D. Cal. 2018)
Court Description: ORDER Denying 10 Plaintiff's Motion for Summary Judgment; Granting 15 Defendant's Cross-Summary Summary Judgment Motion; adopting re 17 Report and Recommendation. Della has not shown the Commissioner's findings were unsupporte d by substantial evidence or were based on legal error. Moreover, the Court finds the Magistrate Judge's findings were well-reasoned. Thus, the Court ADOPTS the Report and Recommendation, (Doc. No. 17), DENIES Della's summary judgment motion, (Doc. No. 10), and GRANTS the Commissioners cross-motion for summary judgment, (Doc. No. 15). The Court ORDERS the Court Clerk to close the case. Signed by Judge Anthony J. Battaglia on 9/27/2018. (acc)
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Della v. Berryhill Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Michael Anthony Della, Case No.: 17-cv-1374-AJB-PCL Plaintiff, 12 13 v. 14 Nancy A. Berryhill, Acting Commissioner of Social Security, 15 16 ORDER: (1) ADOPTING THE REPORT AND RECOMMENDATION (Doc. No. 17), (2) DENYING PLAINTIFF’S SUMMARY JUDGMENT MOTION, (Doc. No. 10), and Defendant. 17 (3) GRANTING DEFENDANT’S CROSS-SUMMARY JUDGMENT MOTION, (Doc. No. 15). 18 19 20 21 22 Plaintiff Michael Anthony Della lodges two objections to the Magistrate Judge’s 23 Report and Recommendation regarding Della’s social security appeal. However, for both 24 objections, Della fails to show that the Commissioner’s findings were not supported by 25 substantial evidence or were made in legal error—a deferential standard this Court is bound 26 by. Although the Court empathizes with Della’s symptoms and PTSD flashbacks, the Court 27 ultimately finds the high bar for remand has not been met. Accordingly, the Court 28 ADOPTS the findings of the Report and Recommendation, DENIES Della’s summary 1 17-cv-1374-AJB-PCL Dockets.Justia.com 1 judgment motion, and GRANTS the Commissioner’s cross-summary judgment motion. 2 (Doc. Nos. 18, 10, 15.) 3 I. BACKGROUND 4 Della seeks judicial review of the Commissioner’s denial of Della’s application for 5 disability benefits. (Doc. No. 1.) The administrative law judge, (“ALJ”), found Della had 6 several impairments, including “adjustment disorder with anxiety; left knee degenerative 7 joint disease; right shoulder degenerative joint disease; chronic sprains in the cervical, 8 thoracic, and lumbar spine; fibromyalgia; and somatoform disorders.” (Doc. No. 8-2 at 22.) 9 The ALJ determined these impairments did not qualify as severe under applicable social 10 security guidelines. (Id. at 23.) As such, the ALJ stated Della could perform jobs in the 11 national economy, including as a “document preparer” and an eye glass polisher. (Id. at 12 31–32.) The ALJ concluded that Della “has not been under a disability, as defined in the 13 Social Security Act,” and denied him disability insurance benefits. (Id. at 32.) Della 14 appealed the Commissioner’s decision to this Court, and the Court referred the parties’ 15 cross-motions for summary judgment to the Magistrate Judge for a report and 16 recommendation, (“R&R”). Della timely objected to the R&R. 17 II. LEGAL STANDARD 18 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district 19 judge’s duties in connection with a magistrate judge’s report and recommendation. The 20 district judge must “make a de novo determination of those portions of the report . . . to 21 which objection is made,” and “may accept, reject, or modify, in whole or in part, the 22 findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); 23 see also United States v. Remsing, 874 F.2d 614, 617–18 (9th Cir. 1989). 24 An unsuccessful applicant for social security disability benefits may seek judicial 25 review of a final agency decision. 42 U.S.C. § 405(g). However, “[f]or highly fact-intensive 26 individualized determinations like a claimant’s entitlement to disability benefits, Congress 27 ‘places a premium upon agency expertise, and, for the sake of uniformity, it is usually 28 better to minimize the opportunity for reviewing courts to substitute their discretion for 2 17-cv-1374-AJB-PCL 1 that of the agency.’” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 2 (9th Cir. 2014) (quoting Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 621 (1966)). 3 Accordingly, a reviewing court must “follow three important rules in [its] analysis of the 4 ALJ’s decision.” Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). 5 First, the Court “leave[s] it to the ALJ to determine credibility, resolve conflicts in 6 the testimony, and resolve ambiguities in the record.” Treichler, 775 F.3d at 1098. Second, 7 the Court must “disturb the Commissioner’s decision to deny benefits ‘only if it is not 8 supported by substantial evidence or is based on legal error.’” Id. (quoting Andrews v. 9 Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)); see Orn v. Astrue, 495 F.3d 625, 630 10 (9th Cir. 2007). Third, “[e]ven when the ALJ commits legal error, we uphold the decision 11 where that error is harmless, ‘meaning that it is inconsequential to the ultimate 12 nondisability determination,’ or that, despite the legal error, the agency’s path may 13 reasonably be discerned, even if the agency explains its decision with less than ideal 14 clarity.” Treichler, 775 F.3d at 1098 (internal quotation marks and citations omitted.) 15 III. DISCUSSION 16 Della objects to the R&R on two grounds: (1) the R&R erred because it penalized 17 Della for “participating in recommended treatments as evidence of his non-disability,” and 18 (2) the R&R erred by “prejudicing Mr. Della for the combination of his symptoms.” 19 (Doc. No. 18 at 1.) 20 A. 21 Della objects to the R&R claiming it “mischaracterizes the therapeutic adaptive 22 sports for veterans as proof of non-disability.” (Doc. No. 18 at 2.) The R&R states: 23 “in August 2015, Plaintiff reported going to tai chi, sleeping seven to eight hours, attending 24 a surfing clinic and archery clinic, lifting weights, and swimming.” (Doc. No. 17 at 17.) 25 Della asserts the R&R misused this as evidence that Della has “falsely claim[ed] he has 26 lost physical ability.” (Doc. No. 18 at 2.) In finding Della’s physical impairments did not 27 meet listing 1.02, the Commissioner pointed to Della’s attendance in “clinics for archery, 28 golf, and surfing” as evidence that “he has not lost an ability as required in listing 1.02.” Recommended Treatments 3 17-cv-1374-AJB-PCL 1 (Doc. No. 8-2 at 23.) 2 Della argues “one of these clinics is described as ‘provid[ing] a practical framework 3 for developing & fostering an interest in using the medium of golf to help mitigate negative 4 symptoms related to their illness, injury, or diagnosis.” (Doc. No. 18 at 2 (quoting 5 Doc. No. 9-3 at 2, Ex. 13F).) Della notes “[t]hese clinics are not for the patients to be 6 actively physical, but instead, to cope with their PTSD and mitigate negative symptoms 7 through various activities.” (Id.) However, in the same report discussing the golf clinic, it 8 states “[a]ctively participating in this method of treatment can help promote physical 9 exercise” and provides additional benefits such as “improved communication” and 10 “enhanced feelings of well-being.” (Doc. No. 9-3 at 2, Ex. 13F (emphasis added).) While 11 Della’s doctor notes the goal for his participation in the golf clinic is “to practice 12 independently as part of his recreation therapy community reintegration goal,” nevertheless 13 there is a physical aspect which aligns with the Commissioner’s findings on Della’s 14 physical impairments. (Id.) Della analogizes these clinics to the same a paralyzed veteran 15 would use. (Doc. No. 18 at 3.) However, if even a paralyzed veteran participated in a 16 program which was inconsistent with his or her purported limitations as a paralyzed 17 individual, participation in such could still be used in finding a discrepancy with veteran’s 18 claims. 19 While the Court notes Della’s point that the clinic’s goal was not purely physical in 20 nature, Della did not provide any case law suggesting that participation in these clinics 21 cannot or should not be used in determining physical impairment severity. Thus, the ALJ’s 22 use of the fact that Della engaged in physical exercise nonetheless was valid. As the R&R 23 notes, it is the ALJ’s job to determine credibility and resolve conflicts such as these. This 24 Court can only overturn the ALJ’s findings if they are unsupported by substantial evidence 25 or made in legal error. See Treichler, 775 F.3d at 1098. As such, the Court finds Della did 26 not meet that standard. Thus, the Court finds the R&R’s analysis agreeing with the 27 Commissioner’s finding that Della’s physical impairments failed to meet listings in 1.02 28 or 1.04 based on his participation in such clinics well-reasoned, and ADOPTS the 4 17-cv-1374-AJB-PCL 1 conclusion of the R&R with respect to this issue. 2 B. 3 Next, Della asserts the R&R erred by classifying Della’s combined impairments as 4 malingering. (Doc. No. 18 at 3.) As evidence that Della’s impairments are indeed severe, 5 Della states he has “debilitating migraines,” “fibromyalgia,” “joints [which] feel like they 6 are on fire,” and “severe flashbacks as a part of his PTSD.” (Id. at 5–6.) After summarizing 7 a series of war-related flashbacks and detailing his PTSD, he argues “[t]hese episodes of 8 decompensation alone should qualify Mr. Della [ ] for SSDI under 12.04 or 12.06.” 9 (Id. at 6.) Combination of Symptoms 10 In August 2016, Della did report migraines to his doctor. (Doc. No. 9-12 at 18, 11 Ex. 25F at 4.) However, notes from an appointment the very next month, September 2016, 12 state that “patient stated that he’s doing much better, headache resolved with Topamax as 13 ordered.” (Id. at 23, Ex. 26F at 3.) Regarding his fibromyalgia, although his symptoms 14 include “[c]ognative dysfunction, IBS, muscle pain, insomnia, ringing in the ears, dry eyes, 15 fatigue, depression, anxiety disorder, waking unrefreshed, nervousness, diarrhea, panic 16 attacks, GERD, migraines and sun sensitivity,” (Doc. No. 18 at 4), Della’s doctor stated he 17 could work, but not at a full-time capacity, and listed limitations Della would be subjected 18 to. (Doc. No. 9-11 at 145, Ex. 23F at 3). 19 As to these points, the R&R noted that the ALJ found the doctor’s notes unsupported 20 by other evidence in the record. (Doc. No. 17 at 14–15.) The R&R states “other limitations 21 opined by Dr. Sheu such as Plaintiff’s muscle weakness, chronic fatigue, and inability to 22 walk more than five minutes at a time was contradicted by the record showing Plaintiff’s 23 participation in tai chi, surfing, weightlifting, and swimming.” (Id. at 15.) Moreover, the 24 R&R notes the doctor “did not discuss objective tests performed or provide records of such 25 tests to support his overall opinion.” (Id. at 14–15.) The Ninth Circuit has found that 26 “[w]hen confronted with conflicting medical opinions, an ALJ need not accept a treating 27 physician’s opinion that is conclusory and brief and unsupported by clinical findings.” 28 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). 5 17-cv-1374-AJB-PCL 1 Finally, regarding Della’s PTSD, the ALJ’s opinion documents conflicting 2 symtoms. On one hand, the ALJ noted Della “consistently presented with normal 3 concentration, judgment, thought processes, and memory.” (Doc. No. 8-2 at 28.) The ALJ 4 also stated while Della “frequently appear[ed] with an altered mood,” his “treatment notes 5 [did] not reflect serious symptoms such as suicide attempts, hallucinations, or lack of 6 proper orientation.” (Id.) Della’s mental health examination—which showed greater 7 mental limitations than previously indicated in reports—ended up being invalidated and 8 unreliable due to “atypical and inconsistent” responses. (Id.) The ALJ also noted that “[b]y 9 mid-2015, the claimant was reporting that even when he woke during the night, he could 10 get back to sleep within minutes.” (Id.) Finally, the ALJ remarked that Della traveled out 11 of town to see his family. (Id.) The ALJ’s findings seemingly contradict the severity of 12 Della’s symptoms as he asserts them in his objection. (Doc. No. 18 at 5–6.) While the Court 13 certainly sympathizes with Della’s PTSD flashbacks, this Court’s review is limited: we can 14 only disturb the Commissioner’s findings if they are not supported by substantial evidence 15 or are based on legal error. Treichler, 775 F.3d at 1098. Accordingly, Della has not met 16 that high threshold. Thus, the Court ADOPTS the R&R’s conclusions. 17 IV. CONCLUSION 18 Della has not shown the Commissioner’s findings were unsupported by substantial 19 evidence or were based on legal error. Moreover, the Court finds the Magistrate Judge’s 20 findings were well-reasoned. Thus, the Court ADOPTS the Report and Recommendation, 21 (Doc. No. 17), DENIES Della’s summary judgment motion, (Doc. No. 10), and GRANTS 22 the Commissioner’s cross-motion for summary judgment, (Doc. No. 15). The Court 23 ORDERS the Court Clerk to close the case. 24 25 IT IS SO ORDERED. Dated: September 27, 2018 26 27 28 6 17-cv-1374-AJB-PCL
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