Herbert v. Kijakazi, No. 2:2022cv01614 - Document 20 (D. Nev. 2023)

Court Description: ORDER Denying 16 Motion to Remand. ORDER Granting 18 Countermotion to Affirm the Agency Decision. The Clerk's office is instructed to enter final judgment accordingly and to close this case. Signed by Magistrate Judge Nancy J. Koppe on 2/27/2023. (Copies have been distributed pursuant to the NEF - LOE)

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Herbert v. Kijakazi Doc. 20 Case 2:22-cv-01614-NJK Document 20 Filed 02/27/23 Page 1 of 8 1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 6 BRIAND DAVID HEBERT, 7 Case No. 2:22-cv-01614-NJK Plaintiff, 8 v. 9 KILOLO KIJAKAZI, 10 11 ORDER Defendant. This case involves judicial review of administrative action by the Commissioner of Social 12 Security (“Commissioner”) denying Plaintiff’s application for disability insurance benefits 13 pursuant to Title II of the Social Security Act. Currently before the Court is Plaintiff’s motion to 14 reverse or remand. Docket No. 16. The Commissioner filed a response and cross-motion to affirm. 15 Docket Nos. 17, 18. Plaintiff filed a reply to the Commissioner’s response. Docket No. 19. 16 I. STANDARDS 17 A. 18 The standard for determining disability is whether a social security claimant has an Disability Evaluation Process 19 “inability to engage in any substantial gainful activity by reason of any medically determinable 20 physical or mental impairment which can be expected to last for a continuous period of not less 21 than 12 months.” 42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 1382c(3)(A). That determination 22 is made by following a five-step sequential evaluation process. Bowen v. Yuckert, 482 U.S. 137, 23 140 (1987) (citing 20 C.F.R. §§ 404.1520, 416.920). The first step addresses whether the claimant 24 is currently engaging in substantial gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). 1 The 25 second step addresses whether the claimant has a medically determinable impairment that is severe 26 or a combination of impairments that significantly limits basic work activities. 20 C.F.R. §§ 27 1 The five-step process is largely the same for both Title II and Title XVI claims. For a Title 28 II claim, however, a claimant must also meet insurance requirements. 20 C.F.R. § 404.130. 1 Dockets.Justia.com Case 2:22-cv-01614-NJK Document 20 Filed 02/27/23 Page 2 of 8 1 404.1520(c), 416.920(c). The third step addresses whether the claimant’s impairments or 2 combination of impairments meet or medically equal the criteria of an impairment listed in 20 3 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 4 416.920(d), 416.925, 416.926. There is then a determination of the claimant’s residual functional 5 capacity (“RFC”), which assesses the claimant’s ability to do physical and mental work-related 6 activities. 20 C.F.R. §§ 404.1520(e), 416.920(e). The fourth step addresses whether the claimant 7 has the residual functional capacity to perform past relevant work. 20 C.F.R. §§ 404.1520(f), 8 416.920(f). The fifth step addresses whether the claimant is able to do other work considering the 9 residual functional capacity, age, education, and work experience. 20 C.F.R. §§ 404.1520(g), 10 416.920(g). 11 B. 12 After exhausting the administrative process, a claimant may seek judicial review of a Judicial Review 13 decision denying social security benefits. 42 U.S.C. § 405(g). The Court must uphold a decision 14 denying benefits if the proper legal standard was applied and there is substantial evidence in the 15 record as a whole to support the decision. Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). 16 Substantial evidence is “more than a mere scintilla,” which equates to “such relevant evidence as 17 a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, ___ 18 U.S. ____, 139 S.Ct. 1148, 1154 (2019). “[T]he threshold for such evidentiary sufficiency is not 19 high.” Id. 20 II. BACKGROUND 21 A. 22 On January 2, 2018, Plaintiff protectively filed an application for Social Security Procedural History 23 Disability Insurance benefits pursuant to Title II of the Social Security Act. Administrative Record 24 (“A.R.”) 431-34. Plaintiff alleged a disability starting February 25, 2015. A.R. 433. Plaintiff’s 25 initial application was denied on April 23, 2018. A.R. 238-42. He then filed a request for 26 reconsideration, A.R. 243, which was denied, A.R. 244-46. On September 18, 2018, Plaintiff 27 requested a hearing before an Administrative Law Judge (“ALJ”) regarding his benefits 28 determination. A.R. 248-49. ALJ John Cusker held an initial hearing on February 21, 2020, A.R. 2 Case 2:22-cv-01614-NJK Document 20 Filed 02/27/23 Page 3 of 8 1 116-73, and a supplemental hearing on July 10, 2020, A.R. 83-115. He issued a decision denying 2 Plaintiff benefits on November 17, 2020. A.R. 215-24. 3 Plaintiff filed a request for review by the Appeals Council on December 28, 2020. A.R. 4 360-63. The Appeals Council ordered Plaintiff’s case remanded for another hearing before an ALJ 5 on July 27, 2021. A.R. 232-37. The Council determined remand to be appropriate because ALJ 6 Cusker found Plaintiff capable of performing his past work, which had requirements that exceeded 7 Plaintiff’s RFC limitations. A.R. 234. The remand order directed the ALJ to give further 8 consideration to whether Plaintiff could perform his past work, to reconsider Plaintiff’s RFC 9 limitations, and to obtain supplemental evidence from a vocational expert clarifying the effects of 10 Plaintiff’s RFC limitations on his occupational base. A.R. 234-35. 11 ALJ Cynthia Hoover conducted the subsequent hearing on May 22, 2022. A.R. 52-82. 12 Corinne Porter testified at that hearing as a vocational expert. A.R. 74-80. On June 15, 2022, ALJ 13 Hoover issued a decision again denying Plaintiff benefits. A.R. 20-39. Plaintiff again requested 14 that the Appeals Council review the ALJ decision. A.R. 425-30. On August 19, 2022, the Appeals 15 Council declined to change the ALJ’s decision, A.R. 1-5, making it the final decision of the 16 Commissioner. See 42 U.S.C. § 405(g). The instant case was filed on September 23, 2022. Docket 17 No. 1. 18 B. 19 The ALJ’s decision followed the five-step sequential evaluation process set forth in 20 The Decision Below 20 C.F.R. § 416.920. A.R. 20-39. The ALJ first found that Plaintiff met the insured status 21 requirements through December 31, 2020. A.R. 23. At step one, the ALJ found that Plaintiff had 22 not engaged in substantial gainful activity from February 25, 2015, through December 31, 2020. 23 Id. At step two, the ALJ found that Plaintiff has the following severe impairments: osteoarthrosis, 24 obesity, trauma- and stressor-related disorder/PTSD, and depression. Id. At step three, the ALJ 25 found that Plaintiff did not have an impairment or combination of impairments that meets or 26 medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, 27 Appendix 1. A.R. 23-27. The ALJ found that Plaintiff has the residual functional capacity to 28 perform light work as defined by 20 C.F.R. § 404.1567(b) except that he can: (1) lift and/or carry 3 Case 2:22-cv-01614-NJK Document 20 Filed 02/27/23 Page 4 of 8 1 twenty pounds occasionally and ten pounds frequently; (2) stand and/or walk for six hours and sit 2 for six hours in an eight-hour workday; (3) occasionally climb ramps, stairs, ladders, ropes, or 3 scaffolds; (4) occasionally stoop, kneel, crouch, and crawl; (5) engage in frequent handling with 4 the right upper extremity with no restrictions to the left upper extremity; (6) understand, remember, 5 and carry out simple tasks with concentration, persistence, and pace for simple tasks; (7) have 6 occasional contact with the public and co-workers; and (8) must avoid exposure to extreme cold, 7 vibrations, and hazards such as unprotected heights and dangerous moving machinery like 8 chainsaws and jackhammers. A.R. 27-37. At step four, the ALJ found that Plaintiff is unable to 9 perform his past relevant work as a delivery driver, inventory clerk, truck driver, or courier. A.R. 10 37. At step five, the ALJ found that jobs exist in significant numbers in the national economy that 11 Plaintiff can perform, based on Plaintiff’s age, education, work experience, and residual functional 12 capacity. A.R. 38-39. The ALJ considered the Medical Vocational Rules, which provide a 13 framework for finding Plaintiff disabled or not. In addition to considering the Medical Vocational 14 Rules, the ALJ took testimony from a vocational expert that an individual with the same residual 15 functional capacity and vocational factors as Plaintiff could perform work as a marking clerk, 16 dispatch marker, and routing clerk. A.R. 38. In doing so, the ALJ defined Plaintiff as a younger 17 individual age 18-49. A.R. 37. The ALJ found that Plaintiff has at least a high school education 18 and further found the transferability of job skills to be immaterial. Id. Based on these findings, 19 the ALJ found Plaintiff not disabled from February 25, 2015, through December 31, 2020. A.R. 20 39. 21 III. ANALYSIS 22 Plaintiff raises one issue on appeal. He submits that the ALJ erred by failing to state clear 23 and convincing reasons for why she rejected his symptoms and limitations testimony. Docket No. 24 16 at 7-17. The Commissioner responds that the ALJ supported her evaluation of Plaintiff’s 25 subjective symptom testimony with substantial evidence. Docket No. 17 at 3-8. 26 Credibility and similar determinations are quintessential functions of the judge observing 27 witness testimony, so reviewing courts generally give deference to such assessments. See, e.g., 28 Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986). In the Social Security context, 4 Case 2:22-cv-01614-NJK Document 20 Filed 02/27/23 Page 5 of 8 1 “[t]he ALJ is responsible for determining credibility.” Andrews v. Shalala, 53 F.3d 1035, 10392 40 (9th Cir. 1995). An ALJ’s assessment of a claimant’s testimony is generally afforded “great 3 weight” by a reviewing court. See, e.g., Gontes v. Astrue, 913 F. Supp. 2d 913, 917-18 (C.D. Cal. 4 2012) (citing Weetman v. Sullivan, 877 F.2d 20, 22 (9th Circ. 1989) and Nyman v. Heckler, 779 5 F.2d 528, 531 (9th Cir. 1985)). If an ALJ’s determination to discount a claimant’s testimony is 6 supported by substantial evidence, a court should not second-guess that determination. Chaudhry 7 v. Astrue, 688 F.3d 661, 672 (9th Cir. 2012).2 8 When evaluating whether an ALJ’s determination is supported by substantial evidence, 9 courts “look[] to all the pages of the ALJ’s decision.” Kaufmann v. Kijakazi, 32 F.4th 843, 851 10 (9th Cir. 2022); see also Kennedy v. Colvin, 738 F.3d 1172, 1178 (9th Cir. 2013) (noting that Ninth 11 Circuit case law “simply requires an ALJ to discuss and evaluate the evidence that supports his or 12 her conclusion; it does not specify that the ALJ must do so under the heading ‘Findings’” (internal 13 quotation omitted)). “Where evidence is susceptible to more than one rational interpretation, it is 14 the ALJ's conclusion that must be upheld.” Shaibi v. Berryhill, 883 F.3d 1102, 1108 (9th Cir. 15 2017) (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). Further, when “the evidence 16 is susceptible to more than one rational interpretation, this [C]ourt must uphold the ALJ's findings 17 if they are supported by inferences reasonably drawn from the record.” Khan v. Saul, 855 Fed. 18 App’x 343, 345 (9th Cir. 2021) (quoting Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012)). 19 See also Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989) (“As a reviewing court, we are 20 not deprived of our faculties for drawing specific and legitimate inferences from the ALJ's 21 opinion”). 22 The ALJ is required to engage in a two-step analysis to evaluate a claimant’s testimony as 23 to pain and other symptoms: (1) determine whether the individual presented objective medical 24 evidence of an impairment that could reasonably be expected to produce some degree of pain or 25 other symptoms alleged; and (2) if so, whether the intensity and persistence of those symptoms 26 2 The regulations previously asked the ALJ to assess “credibility.” Social Security Ruling 27 96-7p. The current regulations require the ALJ to instead “evaluate” the claimant’s statements. Social Security Ruling 16-3p. This change does not alter the deferential nature of the Court’s 28 review. 5 Case 2:22-cv-01614-NJK Document 20 Filed 02/27/23 Page 6 of 8 1 limit an individual’s ability to perform work-related activities. See Social Security Ruling 16-3p, 2 2017 WL 5180304. In the absence of evidence of malingering, an ALJ may only reject a 3 claimant’s testimony about the severity of symptoms by giving specific, clear, and convincing 4 reasons. See Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). Factors that an ALJ may 5 consider include inconsistent daily activities, an inconsistent treatment history, and other factors 6 concerning the claimant’s functional limitations. See Social Security Ruling 16-3p, 2017 WL 7 5180304. 8 Here the ALJ concluded that Plaintiff presented objective medical evidence of an 9 impairment that could reasonably be expected to produce the symptoms alleged. A.R. 28-29. The 10 ALJ concluded, however, that Plaintiff’s “statements concerning the intensity, persistence, and 11 limiting effects of these symptoms were not consistent with the medical evidence and other 12 evidence in the record.” A.R. 29. Plaintiff submits that, in reaching this conclusion, the ALJ failed 13 to connect medical evidence to her rejection of Plaintiff’s symptom testimony. Docket No. 16 at 14 9. Plaintiff further submits that the ALJ failed to satisfactorily discuss why she rejected his 15 symptom testimony and instead “merely recited the medical evidence and various medical 16 opinions.” Id. at 15. 17 The Court finds that, in rejecting Plaintiff’s symptom testimony, the ALJ thoroughly 18 canvassed the medical evidence in the record. She noted that x-rays taken after Plaintiff was in a 19 car accident showed only mild or moderate observable symptoms. A.R. 29 (citing 1020-21). She 20 further noted that an MRI in 2015 also showed only mild observable symptoms. Id. (citing 102221 23). The ALJ discussed Plaintiff’s history of specialized pain management, observing that he 22 generally responded well to treatment. A.R. 29-31 (citing 701, 870-914, 957, 1020-29, 1034-42). 23 The ALJ conducted this review immediately after stating that Plaintiff’s back injury was 24 “considered and … discussed under the diagnosis of osteoarthrosis.” A.R. 29. It is reasonable to 25 infer that the ALJ intended this review of Plaintiff’s treatment history, with repeated references to 26 observations of mild, well managed symptoms, to constitute why she found that Plaintiff’s 27 recitation of his symptoms was inconsistent with the objective medical evidence. Khan, 855 Fed. 28 6 Case 2:22-cv-01614-NJK Document 20 Filed 02/27/23 Page 7 of 8 1 App’x at 345 (internal citation omitted). The Court, therefore, finds that the ALJ did not err in her 2 review and discussion of the objective medical evidence in the record. 3 Plaintiff further submits that the ALJ erred by failing to discuss certain notations of his 4 pain in the record. Docket No. 16 at 13-14. The ALJ observed that Plaintiff “consistently 5 reported” benefiting from his pain management treatment and that “medications were 6 helpful/effective in managing his pain.” A.R. 31 (citing 878, 881, 890, 902, 905, 951, 954, 957, 7 960). The ALJ further observed that Plaintiff “was consistently noted to look comfortable, fairly 8 relaxed, and/or in no distress. Id. (citing 878, 884, 893, 896, 899, 902, 908, 957, 960, 1035). Some 9 of the records the ALJ reviewed in making this observation are the same records Plaintiff alleges 10 that the ALJ failed to discuss. Compare A.R. 31 with Docket No. 16 at 13. It is the ALJ’s 11 responsibility to resolve conflicts in the record. Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007). 12 When there are conflicts in the record, it is the ALJ’s conclusion that must be upheld. Shaibi, 883 13 F.3d at 1108. Here, contrary to Plaintiff’s assertion, the ALJ did review and consider the records 14 and notations of pain from Plaintiff’s pain management appointments. The Court, therefore, finds 15 no error. 16 Plaintiff further submits that the ALJ erred in considering his treatment conservative. 17 Docket No. 16 at 11-12. Plaintiff cites Lapeirre-Gutt v. Astrue, 382 Fed. App’x 662, 664 (9th Cir. 18 2010), to support the proposition that trigger point injections combined with narcotics do not 19 constitute conservative treatment. Docket No. 16 at 11-12. Plaintiff misreads Lapeirre-Gutt. The 20 Lapeirre-Gutt court assumed that the plaintiff’s “regimen of powerful pain medications and 21 injections can constitute conservative treatment.” 382 Fed. App’x at 664 (internal quotation). The 22 Lapeirre-Gutt court did find the ALJ’s conclusion that the plaintiff’s treatment was conservative 23 erroneous. Id. However, that was because the plaintiff had already undergone spinal fusion 24 surgery and “the record [did] not reflect that more aggressive treatment options [were] appropriate 25 or available,” and not merely because the plaintiff was receiving a combination of pain medication 26 and trigger point injections. Id. Moreover, this Court, and courts in the Ninth Circuit generally, 27 have rejected contentions that trigger point injections combined with pain medication constitute 28 7 Case 2:22-cv-01614-NJK Document 20 Filed 02/27/23 Page 8 of 8

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