Opinion
Case No. SACV 19-1210-JPR
05-29-2020
AHMED DAWOOD AHMED E.S., Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security, Defendant.
MEMORANDUM DECISION AND ORDER
I. PROCEEDINGS
Plaintiff seeks review of the Commissioner's final decision denying his application for Social Security Disability Insurance Benefits ("DIB"). The matter is before the Court on the parties' Joint Stipulation, filed April 17, 2020, which the Court has taken under submission without oral argument. For the reasons stated below, the Commissioner's decision is affirmed.
II. BACKGROUND
Plaintiff was born in 1954. (Administrative Record ("AR") 128.) He has a master's degree and worked for approximately 22 years as a sales manager. (See AR 143, 162; see also AR 44.) He applied for DIB on April 30, 2013, alleging that he had been unable to work since February 6, 2010 (AR 128-29), because of high blood pressure, diabetes, and "[s]tint [sic] in artery" (AR 142). After his claim was denied initially and on reconsideration, he requested a hearing. (AR 82-83.) A hearing was held on October 8, 2014, at which Plaintiff, who was represented by counsel, testified (AR 26, 29-42), as did a vocational expert (AR 42-44). In a written decision dated December 2, 2014, the ALJ found him not disabled. (AR 19; see AR 14-19.) He requested review from the Appeals Council (AR 9), but it denied his request (AR 1).
Plaintiff filed an appeal in this Court on May 20, 2016, seeking review of the Commissioner's final decision. (AR 412-14.) On November 21, 2016, by stipulation of the parties, the Court remanded the action for further administrative proceedings. (AR 419-24.) On July 19, 2018, the ALJ conducted another hearing, at which Plaintiff, who was again represented by counsel, and a VE again testified. (AR 376, 379-90.) In a written decision dated August 27, 2018, the ALJ again found Plaintiff not disabled. (AR 369; see AR 361-69.) The Appeals Council considered Plaintiff's written objections to the ALJ's decision and found no reason to assume jurisdiction. (AR 352-54.) This action followed.
III. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The ALJ's findings and decision should be upheld if they are free of legal error and supported by substantial evidence based on the record as a whole. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such evidence as a reasonable person might accept as adequate to support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is "more than a mere scintilla but less than a preponderance." Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). "[W]hatever the meaning of 'substantial' in other contexts, the threshold for such evidentiary sufficiency is not high." Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). To determine whether substantial evidence supports a finding, the reviewing court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). "If the evidence can reasonably support either affirming or reversing," the reviewing court "may not substitute its judgment" for the Commissioner's. Id. at 720-21.
IV. THE EVALUATION OF DISABILITY
People are "disabled" for Social Security purposes if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or has lasted, or is expected to last, for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).
A. The Five-Step Evaluation Process
The ALJ follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim must be denied. § 404.1520(a)(4)(i).
If the claimant is not engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a "severe" impairment or combination of impairments significantly limiting his ability to do basic work activities; if not, a finding of not disabled is made and the claim must be denied. § 404.1520(a)(4)(ii) & (c).
If the claimant has a "severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments ("Listing") set forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, disability is conclusively presumed and benefits are awarded. § 404.1520(a)(4)(iii) & (d).
If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient residual functional capacity ("RFC") to perform his past work; if so, the claimant is not disabled and the claim must be denied. § 404.1520(a)(4)(iv). The claimant has the burden of proving he is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets that burden, a prima facie case of disability is established. Id.
RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 404.1545(a)(1); see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). The Commissioner assesses the claimant's RFC between steps three and four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (citing § 416.920(a)(4)).
If that happens or if the claimant has no past relevant work, the Commissioner then bears the burden of establishing that the claimant is not disabled because he can perform other substantial gainful work available in the national economy, the fifth and final step of the sequential analysis. §§ 404.1520(a)(4)(v), 404.1560(b).
B. The ALJ's Application of the Five-Step Process
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since February 6, 2010, the alleged onset date. (AR 363.) His date last insured was June 30, 2017. (Id.) At step two, the ALJ determined that he had severe impairments of "obesity, diabetes mellitus, hypertension, coronary artery disease status post stenting with history of angina pectoris and mitral valve replacement, and right knee tendonitis." (Id.) At step three, she found that Plaintiff's impairments did not meet or equal a listing. (AR 364.) At step four, she concluded that he had the RFC to perform a limited range of sedentary work:
Plaintiff worked for part of 2015 and earned almost $25,000. (AR 515, 520.)
[He] can lift and/or carry 10 pounds frequently and occasionally; can stand and/or walk for two hours out of an eight-hour workday; can sit for six hours out of an eight-hour workday; can occasionally climb stairs, but cannot climb ladders, ropes or scaffolds; cannot work at unprotected heights or around moving and dangerous machinery; and can frequently stoop, bend, crouch, crawl, and squat.(Id.) He could perform his past relevant work as generally performed in the national economy but not as actually performed. (AR 367-68.) Accordingly, the ALJ found him not disabled. (AR 369.) V. DISCUSSION
In Lucia v. SEC, 138 S. Ct. 2044, 2055 (2018), the Supreme Court held that ALJs of the Securities and Exchange Commission are "Officers of the United States" and thus subject to the Appointments Clause. To the extent Lucia applies to Social Security ALJs, Plaintiff has forfeited the issue by failing to raise it during his administrative proceedings. (See AR 25-46, 222-23, 352-54, 376-92, 434-54, 505-07); Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (as amended) (plaintiff forfeits issues not raised before ALJ or Appeals Council); see also Kabani & Co. v. SEC, 733 F. App'x 918, 919 (9th Cir. 2018) (rejecting Lucia challenge because plaintiff did not raise it during administrative proceedings), cert. denied, 139 S. Ct. 2013 (2019).
Plaintiff contends that the ALJ "impermissibly rejected [his] subjective symptom testimony." (J. Stip. at 4.) For the reasons discussed below, the ALJ did not err.
A. Applicable Law
An ALJ's assessment of a claimant's allegations concerning the severity of his symptoms is entitled to "great weight." Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989) (as amended) (citation omitted); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985) (as amended Feb. 24, 1986). "[T]he ALJ is not 'required to believe every allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).'" Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).
In evaluating a claimant's subjective symptom testimony, the ALJ engages in a two-step analysis. See Lingenfelter, 504 F.3d at 1035-36; see also SSR 16-3p, 2016 WL 1119029, at *3 (Mar. 16, 2016). First, the ALJ must determine whether the claimant has presented "objective medical evidence of an underlying impairment [that] could reasonably be expected to produce the pain or other symptoms alleged." Lingenfelter, 504 F.3d at 1036 (citation omitted). If such objective medical evidence exists, the ALJ may not reject a claimant's testimony "simply because there is no showing that the impairment can reasonably produce the degree of symptom alleged." Id. (citation omitted & emphasis in original).
If the claimant meets the first test, the ALJ may discount the claimant's subjective symptom testimony only if he makes specific findings that support the conclusion. See Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). Absent a finding or affirmative evidence of malingering, the ALJ must provide a "clear and convincing" reason for rejecting the claimant's testimony. Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (as amended) (citing Lingenfelter, 504 F.3d at 1036); Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014). The ALJ may consider, among other factors, the claimant's (1) reputation for truthfulness, prior inconsistent statements, and other testimony that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; (3) daily activities; (4) work record; and (5) physicians' and third parties' testimony. See Rounds v. Comm'r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (as amended); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). If the ALJ's evaluation of a plaintiff's alleged symptoms is supported by substantial evidence in the record, the reviewing court "may not engage in second-guessing." Thomas, 278 F.3d at 959 (citation omitted).
In evaluating a claimant's subjective symptoms, the ALJ considers "all of the available evidence" in the record, § 404.1529(c)(1), including the "objective medical evidence," § 404.1529(c)(2), and "other evidence" from medical sources, § 404.1529(c)(3). Objective medical evidence is obtained through "medically acceptable clinical and laboratory diagnostic techniques." § 404.1529(c)(2). "[O]ther evidence" is everything else relevant to evaluating pain, including, for example, "medical opinions about the individual's symptoms and their effects" and the "longitudinal record of any treatment and its success or failure." SSR 16-3p, 2016 WL 1119029, at *6; see § 404.1529(c)(3).
Contradiction with the "objective medical evidence" is a "specific and legitimate" basis for rejecting a claimant's subjective symptom testimony. Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999); see § 404.1529(c)(2). But it "cannot form the sole basis for discounting" it. Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005).
B. Applicable Background
1. Objective medical and other evidence
a. Heart-related issues
Plaintiff underwent a "cardiac catheterization" on May 9, 2008, following a "markedly abnormal stress test." (AR 225.) During the catheterization, lesions and "moderate to diffuse plaquing" of Plaintiff's "LAD" artery were discovered. (AR 226.) The artery was inflated with a balloon, and a stent was deployed. (AR 225.) Plaintiff was diagnosed with "[m]ultivessel coronary artery disease." (AR 226.)
Cardiac catheterization is an imaging procedure used to evaluate heart function. See Cardiac Catheterization, Cleveland Clinic, https://my.clevelandclinic.org/health/diagnostics/16832-cardiac-catheterization (last visited May 27, 2020).
"LAD" refers to the left anterior descending artery, which supplies the front and bottom of the left ventricle and the front of the septum. See Coronary Arteries, Cleveland Clinic, https://my.clevelandclinic.org/health/articles/17063-coronary-arteries (last visited May 27, 2020).
On September 4, 2009, Plaintiff underwent another stress test and reported "no chest pain with exercise." (AR 227.) Although he exhibited an "abnormal" electrocardiogram response to exercise, he had no clinical response and "[v]ery good" functional capacity. (Id.) On November 12, 2009, he underwent a "[l]eft heart catheterization." (AR 262-63.) During the procedure, "significant diffuse" coronary artery disease was noted, involving a "very small nondominant right" coronary artery, which was "extensively diseased," and a "large dominant left circumflex" artery, which had "disease in an obtuse marginal artery and [a] posterior descending artery." (AR 262-63.)
Progress notes from 2008 and 2009, both before and after Plaintiff's stent placement, indicate that although he reported some chest pain, he had no significant functional difficulties, and his symptoms generally improved. For instance, on February 14, 2008, he reported feeling "well," with no chest pain, shortness of breath, palpitations, dizziness, syncope, or leg edema. (AR 238.) On May 5, 2008, he again was "well," with "[n]o effort intolerance" or any other symptoms. (AR 235.) On June 19, 2008, he reported feeling "well," with an "[e]ffort tolerance of walking [two] miles" and no symptoms. (AR 241.) On November 13, 2008, he also said he felt "well," with no symptoms. (AR 244.) On February 26, 2009, he again reported feeling "well," with an "[e]ffort tolerance of walking two to three blocks" and no symptoms. (AR 247.) On May 28, 2009, he noted "chest pain episodes while swimming," but he described them as "brief" and reported no other symptoms. (AR 250.) On October 6, 2009, he said he was "feel[ing] better," with an "[e]ffort tolerance of walking several blocks" and no recent symptoms. (AR 253.)
On June 9, 2011, more than a year after his alleged onset date, Plaintiff saw cardiologist Richard Deits for a consultation. (AR 350-51.) He indicated that he had had "no further angina" since his stent placement in May 2008 and that he could "play sports" and "remain very active" without chest pain or shortness of breath. (AR 350.) Dr. Deits saw "no reason to do a stress test," noting that Plaintiff was "very active and has no symptoms." (AR 351.) At a September 8, 2011 follow-up visit, Plaintiff related that he had been experiencing "increasing fatigue[,] especially with exertion." (AR 348.) He denied any chest pain or shortness of breath, however, and admitted that he was not taking his blood pressure medications routinely. (Id.) Dr. Deits noted that "[m]ore than likely [Plaintiff's] fatigue, especially with exertion[,] is related to his hypertension" and "discussed this" and "the need to be compliant with his medications" with Plaintiff. (Id.) He noted that he was "very active" and saw "no reason to do a stress test at this point in time." (Id.) On December 29, 2011, Plaintiff reported that he had "[l]ess fatigue." (AR 344.) He said that he had "DOE" and that although he "used to play tennis for hours, now he [could] only last 30-45 minutes." (Id.) Dr. Deits noted that his blood pressure was "elevated" and that "[m]ore than likely his fatigue, especially with exertion, is related to his hypertension." (Id.)
The AR contains no medical records from the February 2010 alleged onset date to June 2011. Although Plaintiff stopped working on the alleged onset date, he indicated in his initial Disability Report that he did so "[b]ecause of other reasons," namely, his "[p]osition was terminated." (AR 142.)
"DOE" stands for "dyspnea on exertion." Medical Abbreviation List By Abbreviation, N.D. State Gov't, http://www.ndhealth.gov/familyplanning/image/cache/medical_terms_in_order_by_abbreviation.pdf (last visited May 27, 2020).
At a January 12, 2012 follow-up visit, Plaintiff had lost two pounds, but his blood pressure "remain[ed] up." (AR 342.) Dr. Deits noted that he "did not do as instructed" by beginning his new blood-pressure medication and instead continued with his previous medication. (Id.) Plaintiff reported on January 26, 2012, that he had started "tak[ing] his medications correctly" and "fe[lt] better" with the new blood-pressure medication. (AR 340.) Dr. Deits noted that his blood pressure was "much better" and that his coronary artery disease was "[s]table." (Id.) During an April 26, 2012 follow-up visit, Plaintiff said he had traveled to Dubai and had had "no problems." (AR 338.) He denied any chest pain, shortness of breath, DOE, "orthopnea," "PND" (paroxysmal nocturnal dyspnea), edema, dizziness, lightheadedness, palpitations, or syncope. (Id.) On July 26, 2012, Plaintiff again denied those symptoms. (AR 336.) On December 6, 2012, he reported that he had traveled to Egypt and had "had no problems." (AR 334.) He denied any symptoms. (Id.)
Orthopnea is discomfort in breathing brought on or aggravated by lying flat. Stedman's Medical Dictionary 1277-78 (27th ed. 2000).
Paroxysmal nocturnal dyspnea is shortness of breath "appearing suddenly at night, usually waking the patient from sleep." Stedman's Medical Dictionary 556 (27th ed. 2000).
On May 2, 2013, he said his blood-pressure readings had been "normal" and denied any symptoms. (AR 332.) Dr. Deits wrote him a letter stating that he "may work in any field without restrictions." (AR 331.) On November 7, 2013, Plaintiff brought his blood-pressure readings, which were "normal," to a follow-up visit. (AR 329.) He denied any symptoms. (Id.)
On July 14, 2014, he told Dr. Diets that he had "just returned from Egypt." (AR 327.) He denied any chest pain, shortness of breath, DOE, orthopnea, PND, edema, dizziness, lightheadedness, palpitations, or syncope. (Id.)
On January 12, 2015, Plaintiff underwent an echocardiogram, with normal findings, including "[n]ormal left ventricular size and function" and "[n]o evidence of significant valvular dysfunction." (AR 719.) On November 24, 2015, he underwent another echocardiogram, which demonstrated that his left ventricle "[s]ize [was] normal," with "septal wall dyskinesis," "mild concentric left ventricular hypertrophy," and "no diastolic dysfunction." (AR 709.) The aortic valve showed "no evidence of stenosis but there [was] mild regurgitation." (Id.) All other findings were normal. (AR 709-10.)
Meanwhile, on January 22, 2015, Plaintiff reported at a cardiology follow-up visit that he "got a job" and denied chest pain, shortness of breath, DOE, orthopnea, PND, edema, dizziness, lightheadedness, palpitations, or syncope. (AR 717.) Dr. Deits noted that his echocardiogram was within normal limits. (AR 718.) At a June 4, 2015 follow-up visit, Plaintiff had "not lost weight," and his blood pressure "remained elevated." (AR 715.) But he denied any symptoms. (Id.) Notes from August 31, 2015, indicate that Dr. Deits reviewed Plaintiff's laboratory results, was "concerned" about several of them, and would "add a [s]tatin" to his prescription medications. (AR 713.) But Plaintiff again denied any symptoms. (Id.) On November 16, 2015, Plaintiff indicated that "[a]bout 10 days" before the appointment, "while in bed he suddenly lost vision" and fainted. (AR 711.) His wife "struck his chest" until he regained consciousness. (Id.) He then "took a shower and drove himself to [the hospital]," where he had coronary artery bypass graft surgery. (Id.) He stated that he had "soreness from the CABG," but he otherwise denied chest pain, shortness of breath, DOE, orthopnea, PND, edema, dizziness, lightheadedness, palpitations, or syncope. (Id.) The postsurgery electrocardiogram indicated "[s]inus [r]hythm" and "[n]on-specific T waves anterolaterally." (AR 712.) On November 30, 2015, Plaintiff "continue[d] to have wound pain" but otherwise denied any symptoms. (AR 707.) Dr. Deits noted that the echocardiogram indicated "[s]eptal dyskinesia." (AR 708.) Notes from a December 21, 2015 follow-up visit state that Plaintiff was "doing well" and denied any symptoms. (AR 699.) Dr. Deits noted that he would discontinue one of Plaintiff's medications because he was "not having anymore [sic] chest pain." (AR 700.)
Dyskinesia is difficulty in performing voluntary movements. Stedman's Medical Dictionary 553 (27th ed. 2000). A septum is a thin wall dividing two cavities or masses of softer tissue. Id. at 1620.
Progress notes from a May 23, 2016 follow-up visit state that Plaintiff was "requesting an extension of his disability." (AR 701.) He said he did not "exercise as much" and got "fatigued with exertion," but he denied chest pain, shortness of breath, DOE, orthopnea, PND, edema, dizziness, lightheadedness, palpitations, or syncope. (Id.) Dr. Deits noted that he was "stable from a cardiac" point of view, "advised him to progressively increase his exercise," and opined that he was not "disabled from a cardiac POV." (AR 702.)
Cardiology progress notes dated August 22, 2017, and March 1, 2018, indicated normal findings on physical examination and that Plaintiff was "doing well," denying any chest pain, shortness of breath, orthopnea, dizziness, syncope, palpitations, or lower extremity edema. (AR 764, 766.) Other than his elevated blood-pressure readings and weight, Dr. Deits had noted generally normal findings during each examination. (See AR 327, 329, 332, 334, 336, 338, 340, 342, 344, 346, 348, 350, 699, 701, 703, 705, 707, 711-12, 713, 715, 717.)
b. Diabetes and other issues
On September 20, 2012, Plaintiff saw Dr. Daniel Uribe, who diagnosed him with type two diabetes and hypertension. (AR 275.) At an October 5, 2012 follow-up visit to obtain lab results, Dr. Uribe noted "[h]igh A1C" and a fasting blood sugar of "240," and he observed that Plaintiff "had been off meds." (AR 274.) Dr. Uribe noted at a May 30, 2013 follow-up visit to refill medication that Plaintiff's weight was down 11 pounds and that his blood pressure was "118/66." (AR 273.) During a June 19, 2013 visit, Dr. Uribe recorded Plaintiff's blood pressure as "120/80" but indicated that he was "not following 'good' DM diet." (AR 272.) Plaintiff saw Dr. Uribe again on July 3, 2013, to check a skin problem with his right leg. (AR 269.)
Dr. Uribe's medical specialty is not apparent from the record.
A1C is a blood test for type 2 diabetes and prediabetes. See A1C, MedlinePlus, https://medlineplus.gov/a1c.html (last visited May 27, 2020).
On August 23, 2016, Plaintiff attended a nephrology consultation with Dr. Herbert S. Tiquia. (AR 746-47.) He reported a "history of coronary artery disease, "MI," and "five-vessel coronary bypass surgery in November 2015." (AR 746.) Dr. Tiquia noted that laboratory studies indicated an "[e]levated serum creatinine" level that was "consistent with likely stage 3 chronic kidney disease due to hypertensive nephrosclerosis." (AR 747.) But his urinalysis findings were "fairly benign." (Id.) Dr. Tiquia did "not suspect any secondary systemic disorders such as autoimmune disease or systemic vasculitis" and noted that Plaintiff's diabetes was under "fair control." (Id.) Dr. Tiquia "had a lengthy discussion with [Plaintiff] regarding the importance of sodium-restricted diabetic diet" "to maintain maximal renal preservation." (Id.)
"MI" is an acronym for "myocardial infarction." Medical Abbreviation List By Abbreviation, N.D. State Gov't, http://www.ndhealth.gov/familyplanning/image/cache/medical_terms_in_order_by_abbreviation.pdf (last visited May 27, 2020).
During an April 20, 2017 office visit with osteopath Mark Varallo, Plaintiff complained of "right knee pain after carrying a heavy load eight weeks" before the office visit. (AR 609.) He described the pain as "aching." (Id.) Dr. Varallo noted on examination that Plaintiff's right knee was "painful medially," but he had a "[n]egative Appleys [sic]" test and "no effusion." (AR 610.) Dr. Varallo "referred [Plaintiff] to orthopedics" and ordered X-ray imaging of his right knee. (Id.) The X-ray findings were normal, revealing "no evidence of fracture," "joint effusion," or "focal bony lesion," and "[b]one mineral density [was] normal." (AR 662.)
Dr. Varallo primarily practices family medicine. See Cal. Dep't Consumer Aff. License Search, https://search.dca.ca.gov (search for "Varallo" under "License Type," "Osteopathic Physician's and Surgeon's") (last visited May 27, 2020).
An Apley's test is used to evaluate patients for tears in the meniscus of the knee. See Apley's Test, Physiopedia, https://www.physio-pedia.com/Apley%27s_Test (last visited May 27, 2020).
On July 25, 2017, after Plaintiff's date last insured, he saw Dr. Varallo to discuss test results. (AR 791.) He noted that Plaintiff's "right knee [was] painful at the insertion of the sartorius," but he indicated otherwise normal examination findings. (AR 792.) Dr. Varallo's assessment was "[d]iabetes mellitus with renal manifestations, uncontrolled." (Id.) He indicated that Plaintiff should eat a "diet low in simple carbohydrates" and engage in "30 minutes of exercise daily." (Id.) He said Plaintiff would be "switched to insulin" if his diabetes was not under control at the next visit. (Id.) Progress notes from September 17, 2017 indicate that Dr. Varallo again encouraged Plaintiff to follow his diet and engage in "30 [minutes of] walking at least [three or four times] per week." (AR 790.) He noted again on October 24, 2017, that Plaintiff's diabetes was "uncontrolled," again prescribed a "[d]iet low in simple carbohydrates," and indicated that he would "be switched to insulin" if his diabetes was not under control at the next visit. (AR 786.) On November 2, 2017, Plaintiff complained of "skin problems" with "no associated pain." (AR 783.) Dr. Varallo indicated that Plaintiff's "right knee [was] painful at the insertion of the sartorius" and otherwise noted normal findings on examination. (AR 784.) He observed that Plaintiff's diabetes remained "uncontrolled," prescribed a "[d]iet low in simple carbohydrates," and indicated that he would be "switched to insulin" if his diabetes was not under control at the next visit. (Id.) At a November 10, 2017 visit, Dr. Varallo "stressed" the need for "weight reduction" and "reinforced and advocated" that Plaintiff follow his diet. (AR 782.) He "encouraged . . . 30 [minutes of] walking at least [three or four times] per week." (Id.)
The sartorius is a superficial anterior thigh muscle. Stedman's Medical Dictionary 1154 (27th ed. 2000).
On January 17, 2018, Dr. Varallo again noted that Plaintiff's diabetes was "uncontrolled" and prescribed a "[d]iet low in simple carbohydrates" and "30 minutes of exercise daily." (AR 778.) On January 25, 2018, Plaintiff complained of a "cough, runny nose and stuffy nose." (AR 774.) Dr. Varallo noted a "cobblestone appearance to [the] post pharynx and inside of the nares" and otherwise normal findings on physical examination. (AR 775.) He observed that Plaintiff's diabetes remained "uncontrolled" but showed "slight improvement." (AR 776.) Dr. Varallo again advised Plaintiff to follow a "[d]iet low in simple carbohydrates" and to engage in "30 minutes of exercise daily." (Id.) Progress notes from February 1, 2018, state that Plaintiff's "A1C [was] in [an] increasing trend." (AR 773.) He reported that he was "walking 'a lot nowadays.'" (Id.) Dr. Varallo again noted that he "reinforced" Plaintiff's need to follow his diet and "encouraged" him to walk 30 minutes three or four times a week. (Id.) On April 2, 2018, Dr. Varallo noted that Plaintiff's "[l]ast A1C was 9.1," "reinforced" the need to follow his diet, and again "encouraged" him to walk regularly. (AR 772.)
c. State-agency consultants and reviewers
On July 16, 2013, Plaintiff underwent a complete internal-medicine evaluation by Dr. Rocely Ella-Tamayo at Defendant's request. (AR 286-91.) Plaintiff presented with "[d]iabetes mellitus," "[h]igh blood pressure," and "[c]hest pain" and reported symptoms of "occasional numbness and tingling sensation of the extremities," "nocturia," "occasional headache," "rare dizziness without ankle swelling," and "occasional shortness of breath and diaphoresis." (AR 286-87.) He said he was capable of "walk[ing two] blocks" and "pick[ing] up about 10 pounds," and his daily activities included "driv[ing] sometimes," "help[ing] with light housework," "walk[ing] in the yard," "go[ing] on errands," and "go[ing] to the doctor." (AR 287.) Dr. Ella-Tamayo noted on physical examination that Plaintiff was "obese" and recorded his blood pressure as "160/90," but examination findings were otherwise normal. (AR 288-90.) She diagnosed him with "[d]iabetes mellitus," "[h]ypertension," "[c]oronary artery disease status post 1 coronary artery stent placement with history of angina pectoris," and "[o]besity." (AR 290.) She opined that he was restricted in "pushing, pulling, lifting, and carrying to about 20 pounds occasionally, and about 10 pounds frequently," his "[s]itting [was] unrestricted," he was "able to stand and walk 6 hours out of an 8-hour workday with normal breaks," he could "kneel without restriction" and "squat frequently," and he had "no significant functional impairment [of] the hands." (AR 291.)
Dr. Ella-Tamayo primarily practices internal medicine. See Cal. Dep't Consumer Aff. License Search, https://search.dca.ca.gov (search for "Ella-Tamayo" under "License Type," "Physician's and Surgeon's") (last visited May 12, 2020).
On August 12, 2013, state-agency physician V. Phillips reviewed Plaintiff's records and generally agreed with Dr. Ella-Tamayo's findings, differing from them only in finding that Plaintiff could sit (with normal breaks) for a total of about six hours in an eight-hour workday, had no limitations for pushing or pulling other than those for lifting and carrying, and had no postural, visual, communicative, or environmental limitations. (AR 54-55.) On December 16, 2013, state-agency physician C. Friedman reviewed Plaintiff's records and adopted Dr. Phillips's findings. (AR 65-66.)
Dr. Phillips primarily practices family or general medicine. (See AR 47 (showing signature code of 12)); Soc. Sec. Admin., Program Operations Manual System (POMS) DI 24501.004 (May 5, 2015), https://secure.ssa.gov/apps10/poms.nsf/lnx/0424501004 (signature code 12 indicates family or general practice).
Dr. Friedman's medical specialty is not apparent from the record.
2. Plaintiff's statements and testimony
In Plaintiff's undated initial Disability Report, he stated that his ability to work was limited by "[h]igh blood pressure," "[d]iabetes," and "[s]tint [sic] in artery." (AR 142.) In a questionnaire dated June 28, 2013, he claimed that "[f]atigue," "weakness," and "[s]hortness of [b]reath" prevented him from carrying out a normal workday. (AR 177.)
At the October 8, 2014 hearing, Plaintiff testified that he last worked in January 2010. (AR 29.) He "got laid off" because after he "had a stent put in one of [his] arter[ies]," he found "it very difficult health-wise to travel a lot." (Id.) He testified that when he traveled by plane to Saudi Arabia and Egypt earlier that year, he wound up "unconscious" on the plane. (AR 30.) He woke up, but "when [he] arrived, [he] couldn't stand up," he "was dizzy," and "they had to bring a wheelchair." (Id.) He testified that he became "fatigued" "when [he] d[id] any physical exercising." (AR 31.) Although he "used to jog" "2 miles no problem," "now if [he] walk[ed] 15 minutes," he got "dizzy" and had "hard breath." (Id.) He would then have to lie or sit down for "at least" 30 minutes. (Id.) He got "very fatigued" after "pull[ing a] laundry basket for [his] wife" for "50 feet." (Id.) He said he could not work in a sales job that did not require travel because he got "fatigued after one hour" and his "eyes started to get blurry." (AR 33-34.) He also could not work as a car salesman because he could not do the "mov[ing] around" and "physical work" required "to deliver a car," among other things. (AR 34.) He testified that if he walked 100 feet, his eyes got "numby" and he felt "fatigue[d]." (AR 37.) He could not "read for more than 10 or 15 minutes" before his vision got "blurry." (AR 38.)
At the July 19, 2018 hearing, Plaintiff testified that since the previous hearing, he had "had a massive heart attack" and bypass surgery. (AR 379.) He testified that he now "became fatigued" "if [he] d[id] even very light work at all to help [his] wife," he "los[t] focus," and his memory was "not as good as it used to be." (Id.) He had "started losing records of dates," could not "remember the name[s]" of his medications, and he "sometimes" forgot instructions his wife gave him. (AR 380.) He also testified that he could no longer "play tennis, swim, [or] hike." (Id.) He got out of breath "after like 10, or maximum 15 minutes" if he tried to do things or moved around. (AR 381.) His voice was becoming "weaker," and if he spoke in a loud voice he became "more fatigued." (AR 381-82.) The fatigue "became worse after the surgery." (AR 382.) He testified that "[b]efore the surgery, it was a little bit longer, 15, 20 minutes" before he became out of breath or felt tired. (Id.) When he felt tired, he had to "lie down[] or sit down" for "30 minutes[] to 45 minutes" before resuming even "very light" activities. (Id.)
3. The ALJ's decision
The ALJ found Plaintiff's "statements concerning the intensity, persistence and limiting effects of [his] symptoms" "not entirely consistent with the medical evidence and other evidence in the record." (AR 365.)
The ALJ first considered the objective medical evidence supporting Plaintiff's claims of fatigue, weakness, and shortness of breath, noting that although "[h]istorical treatment records document [his] diagnosis of coronary artery disease," he "underwent stenting of [a] coronary artery" in 2008. (AR 365.) She noted that "[p]rogress notes from 2008 and 2009 reflect some reports of chest pain, but no significant cardiac functional abnormalities, with improvement[] in [Plaintiff's] reported symptoms over that period." (Id.) Stress testing on September 4, 2009, "yielded the assessment of 'very good functional capacity.'" (AR 365 (quoting AR 227).) A cardiology consultation report from June 2011 indicated that Plaintiff "had experienced no chest pain since 2008 and . . . reported playing sports and remaining very active without difficulty." (AR 365-66 (citing AR 350).) In September 2011, Plaintiff "reported increased fatigue," but progress notes indicated "inconsistent medication compliance." (AR 366 (citing AR 348).) In December 2011, Plaintiff "reported the ability to play tennis for 30-45 minutes without severe fatigue." (Id. (citing AR 344).) She also considered cardiology notes from May 2013, which "indicate[d] that [Plaintiff] denied any shortness of breath, dizziness, lightheadedness, palpitations, or syncope." (Id. (citing AR 278).) She specifically noted that Plaintiff's treating cardiologist stated on May 2, 2013, that he could "work in any field without restrictions." (Id. (citing AR 331).) She observed that treatment notes from November 2013 "reflect[ed] no significant functional deficiencies upon physical examination[] and no treatment recommendation beyond continuation of [his] medications." (Id.) A July 14, 2014, cardiac evaluation report showed "no reported sympomatology" and no "significant irregularities." (Id. (citing AR 315).)
The ALJ also discussed notes indicating that Plaintiff "had a heart attack in November of 2015 and underwent five-vessel coronary bypass surgery." (Id. (citing AR 554-98, 746).) But she noted that "follow-up notes in 2016, 2017 and 2018 indicated [he] was doing well and he denied chest pains, shortness of breath, orthopnea, dizziness, syncope, palpitations, or lower extremity edema." (Id.) The ALJ also observed that Plaintiff's "diabetes mellitus was being conservatively managed with medication[]," "[h]is physical examinations were largely unremarkable for any acute cardiovascular or neurological issues," and he "was regularly encouraged to exercise at least 30 minutes a day by walking, which indicates that his doctor felt he was capable of greater exertion than the sedentary lifestyle he testified to at the hearing." (Id. (citing AR 699, 701, 703, 764, 782, 797).)
The ALJ discussed Plaintiff's treatment for right knee pain in April 2017. (Id.) But "[h]is examination indicated a negative Appley's [sic] test and no effusion." (Id.; see AR 609-10.) Plaintiff "was given a knee brace and referred to the orthopedics department." (AR 366-67 (citing AR 609-10, 617-18).) She also noted that "X-ray imaging of the joint showed normal findings," and there was "no indication of further treatment for knee pain or any other musculoskeletal condition." (AR 367 (citing AR 602-608, 662).) She remarked on the evidence documenting Plaintiff's obesity and observed that his "weight, including the impact on his ability to ambulate as well as his other body systems, has been considered." (Id.)
The ALJ summarized the medical records, stating:
Overall, the medical records indicate that
[Plaintiff's] history of coronary artery disease caused minimal functional limitations prior to November 2015 in light of the benign workups prior to that time, as well as [his] reported physical activities that included playing sports without significant fatigue or pain. While he unfortunately had a heart attack in November of 2015, the notes convey that he recovered from the incident and related bypass surgery relatively quickly, as the subsequent examination and diagnostic findings revealed little to no cardiovascular or neurological abnormalities. [He] was also encouraged to exercise by walking throughout his course of treatment.(Id.)
The ALJ also discussed the medical-opinion evidence. First, Plaintiff "underwent a complete internal medicine evaluation by Dr. Tamayo on July 16, 2013." (AR 366 (citing AR 284-94).) Although Plaintiff reported "chest pain and shortness of breath upon exertion," physical examination revealed "no physical abnormalities," and he "demonstrated normal gait, strength, sensation, and range of motion in all areas, with no neurological deficiencies evident." (Id. (citing AR 286-91).) The ALJ noted that "Dr. Tamayo . . . opined that [Plaintiff] retained the capacity to perform a range of work at the light exertional level." (Id.) She gave "little weight" to the opinion because it did "not adequately take into account [Plaintiff's] subjective reports of fatigue and shortness of breath on exertion." (Id.)
The ALJ also discussed the opinions of state-agency physicians Phillips and Friedman, who opined that Plaintiff "could perform a full range of light work." (AR 367 (citing AR 48-57, 59-69.) She gave those opinions "little weight" as well because the "evidence received at the time of the most recent hearing supports a finding of greater functional limitation than reflected in the opinions of these sources." (Id.)
Ultimately, the ALJ concluded that Plaintiff's symptoms would limit him to a range of sedentary work and that he was capable of performing his past relevant work as a sales manager as generally performed in the national economy. (AR 364, 367-68.) Therefore, she found him not disabled. (AR 369.)
C. Analysis
As an initial matter, the ALJ largely accepted Plaintiff's self-reported limitations in finding that he was capable of less than the full spectrum of sedentary work. Indeed, his complaints mostly concerned fatigue, weakness, and shortness of breath on exertion (see AR 177 (questionnaire answers), 701 (reporting in May 2016 that he gets "fatigued with exertion")), and the ALJ concluded that the agency doctors' finding that he could perform a range of light work did "not adequately take into account [his] subjective reports of fatigue and shortness of breath on exertion." (AR 366.) Therefore, the ALJ limited him to "a range of sedentary work." (AR 364); see § 404.1567(a) (sedentary work requires "lifting no more than 10 pounds at a time" and "occasionally lifting or carrying articles like docket files, ledgers, and small tools"); see also DOT 163.167-018, 1991 WL 647311 (sales-manager position requires "exerting up to 10 pounds of force occasionally" "and/or a negligible amount of force frequently" "to lift, carry, push, pull, or otherwise move objects, including the human body"). In finding his statements "not entirely consistent" with the medical records (AR 365), the ALJ implicitly rejected only his allegation that he needed 30 to 45 minutes of rest after engaging in 10 to 15 minutes of activity. (AR 364); cf. § 404.1567(a).
The ALJ noted Plaintiff's statement to a doctor in April 2017 that he injured his knee a few weeks prior while "carrying a heavy load" (AR 366-67 (citing AR 609-10, 617-18)), which was inconsistent with his allegations of being unable to lift or carry much weight because of fatigue.
To the extent she discounted Plaintiff's subjective symptoms, she provided clear and convincing reasons supported by substantial evidence for doing so. First, she properly concluded that his claims were inconsistent with the objective medical evidence (see AR 365), which is a valid basis for discounting a claimant's subjective symptom testimony. Morgan, 169 F.3d at 600; § 404.1529(c)(2). Second, she considered "other evidence" from Plaintiff's medical sources, including "longitudinal record of any treatment and its success or failure," SSR 16-3p, 2016 WL 1119029, at *6 (Mar. 28, 2016); § 404.1529(c)(3), the doctors' opinions, and Plaintiff's daily activities.
For example, contrary to Plaintiff's claims of disabling fatigue, weakness, and shortness of breath from coronary artery disease (see AR 177, 701), the objective medical evidence demonstrated no significant cardiac functional deficits. The January 2015 echocardiogram showed normal findings. (AR 719-20.) The November 2015 echocardiogram demonstrated septal-wall dyskinesis and mild concentric left ventricular hypertrophy, but no diastolic dysfunction, preserved right ventricular function, and otherwise normal findings. (AR 709-10.) The progress notes consistently demonstrated normal physical-examination findings. (See, e.g., AR 327, 329, 332, 334, 336, 338, 340, 342, 344, 346, 348, 350, 699, 701, 703, 705, 707, 711-12, 713, 715, 717.)
As to the other evidence, the treatment records demonstrated that Plaintiff's symptoms improved following his 2008 stent and 2015 coronary bypass surgery. (See AR 350 (Plaintiff reporting in June 2011 that he had had no further angina since his stent placement in May 2008 and that he could play sports and remain "very active" without chest pain or shortness of breath), 699-700 (Plaintiff reporting in December 2016 that he was doing well and denying any chest pain, shortness of breath, orthopnea, dizziness, syncope, palpitations, or lower extremity edema), 773 (Plaintiff reporting in February 2018, seven months after his date last insured, that he was walking "a lot nowadays"; see also AR 367 (ALJ finding Plaintiff's statements inconsistent with medical evidence and that evidence as whole supported RFC).) Indeed, in the periods following the 2008 stent and the 2015 coronary bypass surgery, Plaintiff repeatedly denied cardiac symptoms and was consistently encouraged to exercise regularly. (See, e.g., AR 702 (Dr. Deits observing in May 2016 that Plaintiff should "progressively increase his exercise" and finding that he was not "disabled from a cardiac POV"), 764 (Plaintiff reporting in March 2018 that he had no chest pain, shortness of breath, orthopnea, dizziness, syncope, palpitations, or lower extremity edema).)
The ALJ's finding that the objective and other medical evidence undermined his symptom allegations was supported by the record. The echocardiogram results, physical-examination findings, doctors' opinions, and Plaintiff's lack of cardiac symptoms all indicated that he could perform sedentary work.
Notably, Plaintiff does not identify any record evidence undermining the ALJ's discounting of his subjective symptom statements as "not entirely consistent" with the medical and other evidence. (AR 365; see generally J. Stip. at 4-13.) Instead, he contends that the ALJ did not articulate a "sufficient articulated rationale" for discounting them (J. Stip. at 7), arguing that her reasons were inadequate under Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc) (J. Stip. at 8; see id. at 7-11). Although Plaintiff is correct that subjective symptom testimony cannot be rejected on the sole basis that it is not fully corroborated by objective medical evidence, see Burch, 400 F.3d at 680 (citing Bunnell, 947 F.2d at 345); § 404.1529(c)(2), the ALJ did not discount his symptoms solely on that basis. She also found them inconsistent with "other evidence" in the medical records, including the medical-opinion evidence and Plaintiff's daily activities. (See, e.g., AR 365-66 (noting statement in Plaintiff's treatment records that he reported playing sports and remaining very active without difficulty); see also AR 366 (noting opinion from Plaintiff's treating cardiologist that he could work in any field without restrictions).)
The ALJ's holistic consideration of the treatment records beyond simply the "objective medical evidence" in them was proper. See § 404.1529(c)(2) & (3); George v. Berryhill, No. 1:16-cv-00335-GSA, 2017 WL 3383117, at *11 (E.D. Cal. Aug. 7, 2017) (ALJ properly discounted symptoms given lack of "objective" medical evidence under § 404.1529(c)(2) and inconsistences with medical opinions and observations about plaintiff's symptoms). And although Plaintiff claims that the ALJ did not "provide specific, clear, and convincing reasons for his [sic] credibility determinations beyond the boilerplate" (J. Stip. at 7), her decision, as discussed, reflects a careful reading of all the evidence, including the trajectory of Plaintiff's symptoms before and after his stent placement and coronary bypass surgery (see AR 365-67).
Plaintiff argues that the ALJ did not articulate his daily activities as a reason to discount his testimony. (J. Stip. at 10.) He is incorrect. In addressing the inconsistencies in his symptom testimony, the ALJ specifically noted that he reported playing sports and remaining very active without difficulty and playing tennis for 30 to 45 minutes without severe fatigue. (AR 365-66.)
The ALJ stated clear and convincing reasons, supported by substantial evidence, to partially discount Plaintiff's subjective symptom testimony. Reversal is not warranted.
VI. CONCLUSION
Consistent with the foregoing and under sentence four of 42 U.S.C. § 405(g), IT IS ORDERED that judgment be entered DENYING Plaintiff's request for remand, AFFIRMING the Commissioner's decision, and DISMISSING this action with prejudice. DATED: May 29, 2020
That sentence provides: "The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." --------
/s/_________
JEAN ROSENBLUTH
U.S. MAGISTRATE JUDGE