Opinion
Case No. CV 19-07482-DOC (AS)
02-18-2021
RAMON ARROYO, Plaintiff, v. ANDREW SAUL, Commissioner of the Social Security Administration, Defendant.
FINAL REPORT AND RECOMMENDATION OF A UNITED STATES MAGISTRATE JUDGE
This Final Report and Recommendation is submitted to the Honorable David O. Carter, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California. For the reasons discussed below, it is recommended that the decision of the Commissioner be affirmed.
I. PROCEEDINGS
On August 29, 2019, Ramon Arroyo ("Plaintiff") filed a Complaint seeking review of the Commissioner's determination that Plaintiff's disability ended on January 1, 2013, and that he has not become disabled again since that date. (Dkt. No. 1). On May 18, 2020, Defendant filed an Answer along with the Administrative Record ("AR"). (Dkt. Nos. 29-30). On September 14, 2020, the parties filed a Joint Stipulation ("Joint Stip.") setting forth their respective positions regarding Plaintiff's claims. (Dkt. No. 36).
The Court notes that the parties did not engage in settlement communications, in noncompliance with the Court's September 13, 2019 Order Re: Procedures in Social Security Appeal (see Dkt. No. 12 at 1). (See Joint Stip. at 2 n.1).
On February 3, 2021, the Court issued a Report and Recommendation recommending that the decision of the Commissioner be affirmed and this action be dismissed with prejudice. (Dkt. No. 38).
On February 17, 2021, Plaintiff filed an Objection to the Report and Recommendation ("Objection"). (Dkt. No. 39).
This Final Report and Recommendation now issues.
The Court has taken this matter under submission without oral argument. See C.D. Cal. L.R. 7-15; Dkt. No. 9 at 8.
II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
The Court's description of the background of this case is based on documents contained in the Certified Administrative Record.
On August 28, 1990, Plaintiff filed applications for Disability Insurance Benefits and Supplemental Security Income, alleging a disability onset date of June 9, 1989. (See AR 151-52, 421-23). Plaintiff's applications were granted for the closed period of June 9, 1989, when his disability began, to October 31, 1990, when his disability ceased. (See AR 151-53, 376-77; see also AR 192).
Plaintiff's application for Supplemental Security Income is not in the record.
The Disability Determination and Transmittal form states that Plaintiff's primary diagnosis was status post fractures of the left lower extremity and Plaintiff's secondary diagnosis was osteoarthritis. (AR 151).
Notwithstanding the closed period of disability, Plaintiff continued to receive disability benefits until some point in 1994, when he moved and did not provide the Social Security Administration ("SSA") a forwarding address. Plaintiff claims that three months after he moved, he went to the post office to sign a form to forward his mail. He subsequently received a letter from the SSA stating that the last three disability checks sent to him had been returned, and asking him to provide an address where the checks could be sent. Sometime in 1994, he went, without that letter, to a SSA field office where an employee inputted his social security number into a computer and informed him, "there was no record, there's nothing we can do for you." (See AR 102, 122-23).
Plaintiff's disability benefits apparently ended in June 1994 and his disability status was terminated in December 1994. (See AR 18, 164).
The Administrative Law Judge in this case wrote, "Social Security Administration records reflect, consistent therewith, that the claimant's benefits were ended in June 1994 and his disability status terminated in December 1994." (AR 18; see also AR 164). In the Joint Stipulation, Defendant wrote, ". . . [I]t appears that SSA formally ended Plaintiff's benefits in June 1994, and formally terminated his disability status in December 1994." (Joint Stip. at 10, citing AR 18, 164). However, the Court is not able to locate anything in the record to substantiate the termination of Plaintiff's benefits and his disability status. Nonetheless, the Court notes that Plaintiff has not objected to these statements.
In 2012, Plaintiff, formerly employed as a truck driver and as a merchandise show set-up assistant (see AR 47-48, 145, 456-57, 504), contacted the SSA to request the resumption of his disability benefits. (See AR 462-64; see also AR 123). Instead of requiring Plaintiff to file a new application based on the termination of his disability status, the SSA conducted a continuing disability status review. A Continuing Disability Review Report was completed by Plaintiff on August 15, 2012. (See AR 491-501). On January 14, 2013, the SSA notified Plaintiff that it had determined "[his] health has improved since we last reviewed the case" and his disability status ceased as of January 1, 2013, and that Plaintiff would receive disability payments through March 2013. (See AR 154, 178-80). On August 26, 2013, this determination was upheld upon reconsideration after a disability hearing before a State Agency Disability Hearing Officer. (See AR 190-99).
At the administrative hearing on March 4, 2015, Plaintiff testified that the SSA forced him to submit a new application for disability benefits but, as the ALJ pointed out, there is no record of Plaintiff having submitted a new application. (AR 124-25).
On March 4, 2015, Plaintiff, represented by counsel, testified at a hearing before Administrative Law Judge ("ALJ") Ken H. Chau. (AR 118-50). The ALJ also heard testimony from vocational expert ("VE") Martin Brodwin. (AR 145-50). On April 20, 2015, the ALJ dismissed Plaintiff's request for a hearing, after finding that the SSA's continuing disability status review process was improper and erroneous since (a) Plaintiff's disability status was not ongoing because the closed period of disability ended on October 31, 1990, and (b) the SSA did not have the authority to conduct a continuing disability status review since Plaintiff did not timely seek reconsideration or appeal the determination of a closed period of disability. (See AR 164-66).
Plaintiff appealed the ALJ's Order of Dismissal. (See AR 253-56). On March 10, 2016, the Appeals Council found that the ALJ erred in dismissing Plaintiff's request for a hearing, vacated the ALJ's Order of Dismissal, and remanded to give Plaintiff another opportunity for a hearing and for further development of the record. (See AR 168-69). The Appeals Council, noting that the record was not clear as to why payment of benefits continued after closure of the disability period and that the record appeared to be incomplete (specifically missing were all folders associated with Plaintiff's 1990 claim), directed "[t]he hearing officer [to] notify the claimant about the right to have a monthly check continued until a new decision is made. If the claimant is also eligible to receive checks for months since the prior dismissal order, the notice will also explain the claimant's right to receive them." (AR 169).
Plaintiff subsequently testified at hearings before the ALJ on (1) November 30, 2016, concerning the procedural issues in the case (AR 100-15); (2) June 9, 2017, along with VE Connie Roman ("VE Roman") (AR 67-97); and (3) February 23, 2018, (see AR 40-64).
On April 4, 2018, the ALJ issued a decision finding that Plaintiff's disability ended on January 1, 2013, and denying Plaintiff's request for benefits after that date. (See AR 18-28). Applying the eight-step sequential process (see AR 19-20) to determine whether Plaintiff was under a disability from January 1, 2013, through April 4, 2018, the date of the decision, the ALJ found, at step one, that Plaintiff had not engaged in substantial gainful activity since January 1, 2013. (AR 20). At step two, the ALJ determined that while Plaintiff had the following severe impairments as of January 1, 2013, "status post open reduction internal fixation of the left tibia and fibula and status post nail stabilization [(AR 100)], osteoarthritis of the right foot and ankle [(AR 1094-95), carotid artery occlusion/dissection and/or thrombosis with associated headaches [(AR 926-45, 897-921, 876-96, 869-72)] and degenerative joint disease of the lumbosacral spine [(AR 849)]" (AR 20-21); he did not have an impairment or combination of impairments that meet or medically equal the severity of any of the listed impairments in the regulations (AR 21-22). At step three, the ALJ found that medical improvement, (defined as any decrease in medical severity as established by improvement in symptoms, signs and/or laboratory findings), occurred by January 1, 2013, and at step four, the ALJ determined that the medical improvement was related to Plaintiff's ability to work. (AR 22). At steps five and six, the ALJ implicitly found that none of the exceptions to the medical improvement applied, and that Plaintiff's current impairments, in combination, were severe.
An eight-step process is used to determine whether a previously determined disability continues. See 20 C.F.R. § 404.1594(f).
The ALJ found Plaintiff's alleged impairments of depression and anxiety to be nonsevere. (AR 21).
The ALJ specifically considered whether Plaintiff's impairments meet the criteria of Listing 1.02 (major dysfunction of a joint), 1.03 (reconstructive surgery or surgical arthrodesis of a major weight-bearing joint), and 1.06 (fracture of the femur, tibia, pelvis, or one or more of the tarsal bones). (AR 21-22).
At step seven, the ALJ determined that since January 1, 2013, Plaintiff had the RFC to perform light work with the following limitations:
The RFC is what a claimant can still do despite existing exertional and nonexertional limitations. See 20 C.F.R. § 404.1545(a)(1).
"Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds." 20 C.F.R. § 404.1567(b).
[H]e is able to stand and/or walk for up to 4 hours total with normal breaks in an 8-hour workday, sitting for up to 6 hours with normal breaks. [He] can occasionally operate foot controls with the left foot, can occasionally bend, balance, stoop, kneel, crouch or crawl. [He] is precluded from climbing, and cannot be exposed to extreme cold or unprotected heights, but can occasionally be exposed to moving mechanical parts or vibration. He is frequently able to operate a motor vehicle. Mentally, [he] is able to understand, remember and carry out both simple and complex instructions, can interact appropriately with coworkers, supervisors and the general public, and can respond appropriately to usual work situations and changes in a routine work setting.(AR 22-26).
The ALJ then found that Plaintiff did not have any past relevant work experience. (AR 26-27). At step eight, the ALJ determined, based on Plaintiff's age, education, work experience, RFC, and VE Roman's testimony, that since January 1, 2013, there were jobs existing in significant numbers in the national economy that Plaintiff could have performed. (AR 27-28). Accordingly, the ALJ concluded that Plaintiff's disability ended on January 1, 2013, and that Plaintiff had not become disabled, as defined in the Social Security Act, since that date. (AR 28).
The Appeals Council denied Plaintiff's request for review on June 26, 2019. (AR 1-5). Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner. 42 U.S.C. §§ 405(g), 1383(c).
III. STANDARD OF REVIEW
This Court reviews the Commissioner's decision to determine if it is free of legal error and supported by substantial evidence. See Brewes v. Comm'r, 682 F.3d 1157, 1161 (9th Cir. 2012). "Substantial evidence" is more than a mere scintilla, but less than a preponderance. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). To determine whether substantial evidence supports a finding, "a court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion." Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001)(internal quotation omitted); see Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006) (inferences "reasonably drawn from the record" can constitute substantial evidence.). As a result, "[i]f the evidence can support either affirming or reversing the ALJ's conclusion, [a court] may not substitute [its] judgment for that of the ALJ." Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006).
IV. DISCUSSION
Plaintiff contends that (1) the ALJ failed to properly evaluate the subjective symptom testimony provided by Plaintiff and Plaintiff's girlfriend; (2) the ALJ failed to properly evaluate Plaintiff's case because the non-comprehensive record contains material gaps that prejudiced Plaintiff; (3) the ALJ erred in finding that Plaintiff was not disabled since January 2013; (4) the SSA misled Plaintiff by telling him there was no record of his case; and (5) the SSA failed to follow the Appeals Council's Order regarding payments to Plaintiff from January 2013 to the date of the new decision (April 4, 2018). (See Joint Stip. at 3-4, 9, 14-15, 17-18, 21-23).
The Court has done its best to construe and address Plaintiff's allegations which are rambling, disjointed, and difficult to comprehend.
After consideration of the record as a whole, the Court finds the Commissioner's decision to be supported by substantial evidence and free from material legal error. A. The ALJ Provided Specific, Clear and Convincing Reasons for Discrediting Plaintiff's Subjective Symptom Testimony and Provided Germane Reasons for Discrediting the Testimony of Plaintiff's Girlfriend
The harmless error rule applies to the review of administrative decisions regarding disability. See McLeod v. Astrue, 640 F.3d 881, 886-888 (9th Cir. 2011).
When assessing a claimant's credibility regarding subjective pain or intensity of symptoms, the ALJ must engage in a two-step analysis. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). First, the ALJ must determine if there is medical evidence of an impairment that could reasonably produce the symptoms alleged. Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014). "In this analysis, the claimant is not required to show that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of the symptom." Id. (emphasis in original). "Nor must a claimant produce objective medical evidence of the pain or fatigue itself, or the severity thereof." Id. (citation omitted).
If the claimant satisfies this first step, and there is no evidence of malingering, the ALJ must provide specific, clear and convincing reasons for rejecting the claimant's testimony about the symptom severity. Trevizo, 871 F.3d at 678 (citation omitted); see also Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006)("[U]nless an ALJ makes a finding of malingering based on affirmative evidence thereof, he or she may only find an applicant not credible by making specific findings as to credibility and stating clear and convincing reasons for each."); Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996)("[T]he ALJ may reject the claimant's testimony regarding the severity of her symptoms only if he makes specific findings stating clear and convincing reasons for doing so."). "This is not an easy requirement to meet: The clear and convincing standard is the most demanding required in Social Security cases." Garrison, 759 F.3d at 1015 (citation omitted).
Where, as here, the ALJ finds that a claimant suffers from a medically determinable physical or mental impairment that could reasonably be expected to produce his alleged symptoms, the ALJ must evaluate "the intensity and persistence of those symptoms to determine the extent to which the symptoms limit an individual's ability to perform work-related activities for an adult." Soc. Sec. Ruling ("SSR") 16-3p, 2017 WL 5180304, at *3. SSR 16-3p superseded SSR 96-7p and eliminated the term "credibility" from the Agency's sub-regulatory policy. However, the Ninth Circuit Court of Appeals has noted that SSR 16-3p:
SSR 16-3p, which superseded SSR 96-7p, is applicable to this case, because SSR 16-3p, which became effective on March 28, 2016, was in effect at the time of the Appeal Council's June 26, 2019 denial of Plaintiff's request for review. Nevertheless, the regulation on evaluating a claimant's symptoms, including pain, see 20 C.F.R. § 404.1529, has not changed.
See AR 846 [February 3, 2014: "Musculoskeletal: Comments: Diffuse scarring over bilater LE, L > R with shiny pink skin noted over L calf."; Plaintiff was prescribed Ibuprofen 800 mg and Cyclobenzaprine 5 mg]; 849 [February 20, 2014: "X rays show intramedillary rod in L femur; L old healed deformity of tibia/fibula."; Plaintiff referred to physical therapy and prescribed Tramadol 50 mg and continued Ibuprofen and Cyclobenzaprine]); and 870 [November 11, 2014: "EXTREMITIES: Unremarkable except for evidence of significant reconstruction surgery on the left ankle."; "MOTOR: Muscle bulk and tone are normal. Power is good in all four extremities."). See also AR 794 [Orthopedic Consultation Report dated November 3, 2012], 1100-01 [X-ray of left femur dated July 23, 2016], 1110 [Orthopedic Consultation Report dated July 12, 2017], 1112 [X-ray of left tibia and fibula dated July 12, 2017).
makes clear what [the Ninth Circuit's] precedent already required: that assessments of an individual's testimony by an ALJ are designed to "evaluate the intensity and persistence of symptoms after the ALJ finds that the individual has a medically determinable impairment(s) that could reasonably be expected to produce those symptoms," and not to delve into wide-ranging scrutiny of the claimant's character and apparent truthfulness.Trevizo, 871 F.3d at 678 n.5 (quoting SSR 16-3p)(alterations omitted).
In discrediting the claimant's subjective symptom testimony, the ALJ may consider: "ordinary techniques of credibility evaluation, such as . . . prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and the claimant's daily activities." Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citation omitted). Inconsistencies between a claimant's testimony and conduct, or internal contradictions in the claimant's testimony, also may be relevant. Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014). In addition, the ALJ may consider the observations of treating and examining physicians regarding, among other matters, the functional restrictions caused by the claimant's symptoms. Smolen, 80 F.3d at 1284; accord Burrell, 775 F.3d at 1137. However, it is improper for an ALJ to reject subjective testimony based "solely" on its inconsistencies with the objective medical evidence presented. Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009)(citation omitted).
The ALJ must make a credibility determination with findings that are "sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit claimant's testimony." Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008)(citation omitted); see Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015)("A finding that a claimant's testimony is not credible must be sufficiently specific to allow a reviewing court to conclude the adjudicator rejected the claimant's testimony on permissible grounds and did not arbitrarily discredit a claimant's testimony regarding pain.") (citation omitted). Although an ALJ's interpretation of a claimant's testimony may not be the only reasonable one, if it is supported by substantial evidence, "it is not [the court's] role to second-guess it." Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).
1. Plaintiff's Statements and Testimony
In a Continuing Disability Report dated August 15, 2012 (see AR 491-502), Plaintiff alleged an inability to work due to constant pain in his legs, feet, and back, depression, anxiety, poor eyesight, and arthritis in his legs, back and hands. (AR 492). On a typical day, if his back hurts he stays in bed until he feels better around noon/early afternoon. Then, if he feels good enough, he takes a shower, dresses, eats, and drives to pick up his son from school. (AR 500). He needs to lie down and stretch a lot. (AR 501). He sometimes uses a cane and crutches. (AR 500-01). He has difficulty dressing, bathing, preparing meals, doing chores, driving, shopping, managing money, walking, standing, lifting objects, using his fingers, sitting, seeing, concentrating, remembering, understanding or following directions, and completing tasks. (AR 502).
In an Adult Function Report dated September 7, 2012 (see AR 446-54), Plaintiff indicated that he cannot work because he is in constant pain. (AR 446-47). He can no longer stand or sit for a long period, run, jump or drive at times, and his sleep is affected by the pain. (Id.). On a good day, his daily activities include showering, eating, taking medication, taking his son to school, watering the grass (until his back hurts), lying down, watching television, and driving to and from a friend's house. (AR 447). He spends time with others on the phone almost every day, and he goes to church with his son but needs to be reminded to go. (AR 447-48). He needs help or reminders taking medicine because of his forgetfulness. (Id.). His conditions affect his ability to dress, bathe, care for his hair and shave, feed himself, use the toilet, and to lift, squat, stand, reach, walk, sit, kneel, stair-climb, remember, concentrate, understand, follow instructions, use hands and get along with others. (AR 446-48, 451). He can walk 150 feet before needing to rest. Id. He can pay attention for a few minutes, sometimes finishes what he starts, and he can follow written instructions, but cannot follow spoken instructions due to confusion and panic. (Id.). He gets along fine with authority figures, does not handle stress and changes in routine well, and is highly emotional and anxious. (AR 452). He uses crutches 20 percent of the time and a cane 30 percent of the time, and he needs glasses to read. He takes Iboprofen and Naproxen for his conditions, but they make him drowsy. (AR 453).
At the administrative hearing on March 4, 2015, Plaintiff testified that the pain from his motorcycle accident in 1989 and the seven or eight surgeries during the year following the accident has not gone away ("I live with pain"), but is manageable, although sometimes he cannot roll out of bed. (AR 134-36). He experienced pain when he moved an 8-pound object from one spot to another on the day before the hearing. (AR 136). On some days he can only stand for 30 to 40 minutes before the pain requires that he sit down, and sometimes, he cannot walk more than 10 feet. (AR 136-37). Twice he walked about a block and ended up in the emergency room due to pain in his legs. (AR 137). He cannot sit for very long because his back hurts and he has to lie down as much as possible and/or lift his legs to feel less pressure. (AR 137-38). He is able to climb two steps (and a maximum of five steps) by holding on to a rail and using his cane. (Id.). He is not able to push and pull objects due to constant pain. (AR 138). He has a hard time maintaining balance, cannot stoop, and can kneel if his knee is not too stiff to bend. (AR 138-39). He suffers pain in his entire body when the weather is cold. (AR 139). He is unable to sit at a table and assemble small items because he has difficulty sitting, his hands and palms hurt, and his fingers sometimes tingle. (Id.). He uses a cane, depending on what he has to do and how he feels. (AR 140-41). Although he has crutches which he tries to use when his leg is bad, he does not use them because of pain underneath his armpits and in his palms. (AR 140). He uses a non-prescribed walker at home. (AR 140-41). For his pain, he takes Tylenol, Gabapentin, and Hydrocodone (which he does not take based on addiction concerns). None of the medications "take the pain off completely." (AR 141-43). In November 2014, he was hospitalized for two vertebra fractures suffered during a fall in August 2014 and for headaches suffered in October 2014. While at the hospital, blood clots were found in his brain and his carotid artery. (AR 128-29; see also AR 52, 54).
At the administrative hearing on June 9, 2017, Plaintiff testified that he attended the twelfth grade but did not graduate from high school. (AR 74, 83-84). In August 2014, while attending a Dodgers game, he looked up, saw a foul ball coming at him, and tried to jump up (just "a quick reaction"), but his legs gave out and he fell back and suffered two vertebra fractures. (AR 72-73). On April 9, 2016, in response to Plaintiff stating that he wanted to go to the gym to try to build a little muscle but that he needed pain pills, a doctor asked him if he wanted to die and wrote him a prescription stating, "No lifting, no rushing, no pressure in any part of the body." (AR 73; see AR 1105). He has pain in his lower left leg, left thigh, hip, hands, wrists, and neck. (AR 77-79). The pain has gotten worse, and is especially bad in the winter. (AR 74, 79). On a typical day, if the pain is not too bad, he can go out, drive his son to and from school, and just "hang out." If his pain is bad, he stays home in bed all day and has to take a stronger pain pill (his liver has been bad twice as a result of his pills). (AR 74-75). He is able to sit straight up in an office chair for about a minute and needs to lie down with back support. (AR 75-76). On good days he is able to stand without a cane for 10 to 15 minutes and with a cane for about 25 minutes, and walk for 15 to 30 minutes, but on bad days he is not able to stand up straight. (AR 76). He is not able to climb or bend his back or knee to pick up a light object. (AR 77). He sometimes is not able to lift his arm past a certain point. (AR 89). He is not able to concentrate when he is in pain. (AR 90-91). His anxiety has gotten worse over the years caused by frustration with his overall condition. (AR 80).
At the administrative hearing on February 23, 2018, Plaintiff testified that he experiences different pains (like a ripped muscle, hurts, burns, irritation) in the area under the armpit from which muscle was taken for the surgery on his lower leg in 1989. (AR 50-51). A few times a year he is not able to walk for several weeks due to a severely swollen left lower ankle. (AR 44). He was not able to drive to the hearing because of the pain. (AR 45). He is only able to stand, on average, 20 to 30 to 40 minutes at one time due to pain in his left leg and lower back. (Id.). He is able to walk 1/8 of a mile on a good day which is rare, and sit in a chair without a back for about 5 minutes without having to shift position. (AR 45-46). He can bend down to pick up something off the ground about 10 percent of the time. (Id.). He deals with, and lessens, the pain by taking pain pills or lying down. (AR 47).
2. The ALJ's Findings and Analysis
After addressing the medical evidence and the opinions of the examining consultants and the treating physician (see AR 22-25), the ALJ found Plaintiff's testimony about the intensity, persistence and limiting effects of his symptoms to be unsupported by the objective medical evidence, and inconsistent with Plaintiff's level of medical treatment, and his reported level of pain and activity. (AR 25-26). As set forth below, these were specific, clear and convincing reasons, supported by evidence in the record, to find Plaintiff's allegations regarding his inability to work only partially credible.
a. Objective Medical Evidence The ALJ found no evidence that Plaintiff received any medical treatment from January 1, 2013, the disability cessation date, through February 2014, or from 2015 through mid-2016. (AR 23). This finding is supported by the record. While inconsistencies with the objective medical evidence cannot be the sole ground for rejecting a claimant's subjective testimony, the ALJ may consider these factors when evaluating credibility. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005)("Although lack of medical evidence cannot form the sole basis for discounting pain testimony, it is a factor that the ALJ can consider in his credibility analysis."); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001)("While subjective pain testimony cannot be rejected on the sole ground that it is not fully corroborated by objective medical evidence, the medical evidence is still a relevant factor in determining the severity of the claimant's pain and its disabling effects."); SSR 16-3p, *5 ("objective medical evidence is a useful indicator to help make reasonable conclusions about the intensity and persistence of symptoms, including the effects those symptoms may have on the ability to perform work-related activities"); 20 C.F.R. § 404.1529(c)(2) ("Objective medical evidence . . . is a useful indicator to assist us in making reasonable conclusions about the intensity and persistence of your symptoms and the effect those symptoms, such as pain, may have on your ability to work."); and Carmickle v. Commissioner, 533 F.3d 1155, 1161 (9th Cir. 2008) ("Contradiction with the medical record is a sufficient basis for rejecting the claimant's subjective testimony.").
The ALJ found that Plaintiff's near left internal carotid artery occlusion with a probable dissection and/or thrombosis, which caused Plaintiff to suffer severe headaches in late October and early November 2014 and resulted in a 5-day hospitalization (see AR 869-72, 902, 907-09, 911-17), did not support Plaintiff's testimony regarding the extent of his functional limitations. As the ALJ found (AR 23), Plaintiff's condition appears to have improved with medication (Heparin, Xarelto) and without surgery (see AR 914; see also AR 922-23, 926-27, 931-39 [treatment notes dated November 7, 2014]). See SSR 16-3p, *7-*8 (the effectiveness of medication is one factor to be considered in evaluating the intensity, persistence and limiting effects of an individual's symptoms); Warre v. Comm'r of the SSA, 439 F.3d 1001, 1006 (9th Cir. 2006)("Impairments that can be controlled effectively with medication are not disabling for the purpose of determining eligibility for SSI benefits."); Wellington v. Berryhill, 878 F.3d 867, 876 (9th Cir. 2017)("Such evidence of medical treatment successfully relieving symptoms can undermine a claim of disability."). Indeed, Plaintiff does not point to anything in the record indicating continuing issues with his left internal carotid artery or with severe headaches after November 2014. Moreover, as the ALJ noted (AR 23), diagnostic imaging of the carotid arteries on July 19, 2016 revealed unremarkable findings. (AR 1098-99).
The ALJ also found that Plaintiff's allegations regarding the extent of limitations caused by his left foot and leg pain were unsupported by the objective medical evidence. Although Plaintiff reported having left foot pain "on and off" on February 3, 2014, (AR 845), physical examination revealed mostly unremarkable findings (AR 23-24).15 Moreover, Plaintiff apparently did not obtain treatment for his left foot and leg after February 20, 2014. (See AR 851-57). In addition, Plaintiff's testimony about his ability to walk (i.e., in the Adult Function Report dated September 7, 2012, Plaintiff stated he could walk only 150 feet before needing to rest, AR 451) was inconsistent with several medical records indicating that Plaintiff did not have any issues with his gait (AR 25-26; see AR 793 [Orthopedic Consultation Report dated November 3, 2012], 932, 934, 937, 958 [Progress Notes dated August 11, 2014 and November 7, 2014]).
Similarly, the objective medical evidence failed to support Plaintiff's testimony regarding the extent of his limitations due to right foot and ankle pain. X-rays of Plaintiff's right foot and ankle on July 13, 2016, showed mild osteoarthritis or degenerative change but were otherwise unremarkable. (See AR 1094-95). A physical examination on November 3, 2012, revealed unremarkable findings. (See AR 794 [Orthopedic Consultation Report dated November 3, 2012, stating, "No scars. No gross deformity. No swelling. No warmth. Full pain-free range of motion. No tenderness to palpation at the distal fibula, anterior talofibular ligament and the deltoid ligament."]). In addition, as the ALJ noted (see AR 24), there is nothing in the record indicating that Plaintiff sought treatment for his right foot and ankle.
Plaintiff's testimony about the extent of his limitations caused by back pain also finds no support in the medical record. As of February 2014, Plaintiff had degenerative joint disease of the lumbrosacral spine (AR 849), and in August 2014, Plaintiff sustained a lumbar traverse process fracture when he jumped up and lost his balance when attending a professional baseball game (AR 873-75, 938). However, as the ALJ noted (see AR 23-24), there is no information about the extent of the joint disease degeneration, and there is nothing in the record reflecting that Plaintiff suffered severe lower back issues before February 2014 (see AR 791 [Orthopedic Consultation Report dated November 3, 2012: physical examination shows no issues with thoracolumbar spine]), or after September 2014 (see AR 852-54, 938 [Progress Note dated November 7, 2014: Plaintiff denied having back pain], 1108 [Orthopedic Consultation Report dated July 12, 2017: physical examination shows no issues with the thoracolumbar spine except for limited range of motion "in flexion and extension with pain at the extremes of lateral bending.").
The ALJ properly found that Plaintiff's testimony about the intensity, persistence and limiting effects of his alleged impairments was not supported by and was inconsistent with the objective medical evidence (AR 25). As discussed below, this was not the sole legally sufficient reason for discounting Plaintiff's testimony.
b. Lack of Treatment
The ALJ noted that although Plaintiff claimed to have limited functional capacity since his accident in 1989, and testified that he essentially was unable to perform any activities because of his pain (see AR 46-47, 73-79, 446-47, 500, 502), there is no record of any treatment for these conditions from 1990 through February 2014 or from 2015 through mid-2016. (AR 25). See SSR 16-3p, at *9 (". . . [I]f the frequency or extent of the treatment sought by an individual is not comparable with the degree of the individual's subjective complaints, or if the individual fails to follow prescribed treatment that might improve symptoms, we may find the alleged intensity and persistence of an individual's symptoms are inconsistent with the overall evidence of record."); see also Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008)(an ALJ may discount a claimant's credibility based on, inter alia, an "unexplained or inadequately explained failure to seek treatment"; citation omitted).
Moreover, Plaintiff's assertion that he did not have resources to pay for medical treatment (see Joint Stip. at 3; see also AR 449-50 [In the September 7, 2012 Adult Function Report, Plaintiff stated that he has no money because he does not and cannot work]), is undermined by his testimony at the administrative hearing on March 4, 2015, that he was currently on Medi-Cal and had been "on and off" Medi-Cal for a couple of years (see AR 125-27), and by medical records reflecting treatment from February to December 2014 (see AR 845-959).
Thus, the ALJ's finding that Plaintiff's testimony about the intensity, persistence and limiting effects of his symptoms was inconsistent with the lack of treatment for those conditions was a specific, clear and convincing reason for discounting Plaintiff's complaints of pain and alleged limitations.
c. Inconsistent Reports of Pain
As the ALJ noted (see AR 25), the medical records do not reflect that Plaintiff reported having severe pain. Rather, the medical records reflect that Plaintiff reported taking Ibuprofen occasionally for his arthritic pain (AR 870 [November 1, 2014]), and sometimes did not report extreme pain and/or denied having any pain (AR 845-46 [February 3, 2014], 848-49 [February 20, 2014], 873-74 [August 6, 11, 2014], 852-53 [September 18, 2014], 845-46 [November 3, 2014]). Plaintiff's admissions regarding pain control from his medications directly contradict his statements and testimony of disabling pain. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) ("the ALJ may consider inconsistencies either in the claimant's testimony or between the testimony and the claimant's conduct."); Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005) ("ALJ may engage in ordinary techniques of credibility evaluation, such as . . . inconsistencies in claimant's testimony"); accord 20 C.F.R. §§ 4 04.1529(c)(4), 416.929(c)(4).
The ALJ's finding that Plaintiff's testimony about his pain and functional limitations was inconsistent with his reported level of pain was a specific, clear and convincing reason for discounting Plaintiff's complaints of pain and alleged limitations.
d. Inconsistent Reports of Activity
The ALJ properly found that Plaintiff's attendance at and jumping up at a baseball game (see AR 72-73, 874) belied Plaintiff's testimony of disabling symptoms and limitations. See 20 C.F.R. § 404.1529(c)(3)(1) (a claimant's daily activities are one factor to be considered in evaluating a claimant's symptoms, such as pain); see also Ghanim, 763 F.3d at 1165 ("Engaging in daily activities that are incompatible with the severity of symptoms alleged can support an adverse credibility determination."); Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012)("[T]he ALJ may discredit a claimant's testimony when the claimant reports participation in everyday activities indicating capacities that are transferable to a work setting;" "Even where those activities suggest some difficulty functioning, they may be grounds for discrediting the claimant's testimony to the extent that they contradict claims of a totally debilitating impairment.").
The ALJ's finding that Plaintiff's testimony about his pain and functional limitations was inconsistent with his reported participation in an activity, was also a specific, clear and convincing reason for proper basis for discounting Plaintiff's alleged functional limitations.
3. Plaintiff's Girlfriend's Testimony
Plaintiff asserts that the ALJ did not provide proper reasons for rejecting the testimony that Plaintiff's girlfriend provided about Plaintiff's symptoms and limitations. (See Joint Stip. at 3-4). The ALJ is required to give germane reasons for rejecting or partially rejecting lay witness testimony. See Carmickle v. Comm'r v. Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008); Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006); Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001); Smolen, 80 F.3d at 1288-89.
The Court exercises its discretion to address this claim, notwithstanding Plaintiff's failure to allege the third party statements as a separate claim and Respondent's failure to address the claim.
Monica Ortega, Plaintiff's girlfriend and the mother of Plaintiff's son, completed an Adult Third Party Function Report dated October 10, 2012, (see AR 475-83), stating that she has known Plaintiff for 18 years and sees him daily but does not live with him. (AR 475-76). Plaintiff has always been limited in what he can do, is in constant pain and depressed, and sometimes calls her in the middle of the night when he cannot sleep because of pain. (AR 476). He is not able to dress or bathe himself, care for his hair or shave because of pain. (AR 476). Plaintiff is able to feed himself and sometimes needs to be reminded to take pain medication. (AR 476-77). She does not know about his daily activities but contends that Plaintiff does not prepare his own meals and does not do house or yard work (except for watering the lawn occasionally) because of constant pain and difficulty standing or sitting for long periods. (AR 477-78). On a good day, Plaintiff can maybe walk one block before needing to rest, and then (after taking pain medication) needs to rest for hours before he can resume walking. (AR 480). When Plaintiff feels well, he goes outside 3 to 4 times a week, babysits their son and drive him to or from school, talks on the phone with others every day and goes to church on Sunday (AR 476, 479-80). Plaintiff is not able to pay bills, count change, handle a savings account, or use a checkbook/money orders because he has no income. (AR 478-79). Plaintiff has problems getting along with others because he is always grouchy. (AR 480). Plaintiff is limited in his abilities to lift, squat, bend, stand, reach, walk, sit, kneel, stair-climb, remember, complete tasks, concentrate, follow instructions, use hands and get along with others. (AR 480). She thinks Plaintiff cannot pay attention for very long, and he does not finish what he starts. (AR 480) . Plaintiff can follow written instructions but does not follow spoken instructions well because of forgetfulness. (AR 480). Plaintiff does not handle stress or changes in routine well. (AR 481). When Plaintiff is in pain, he has panic attacks and says that he does not want to live or that he wants to chop off the ailing body part. (AR 481) . Plaintiff needs to use crutches and a cane which were prescribed after the accident, but he tries not to use them. Plaintiff also needs to use glasses, but he does not have glasses. (AR 481). Plaintiff currently takes Ibuprofen and Naproxen, both of which make him sick to the stomach, and Vicodin, which makes him sleepy. (AR 482).
Ms. Ortega testified at the administrative hearing on February 23, 2018. (AR 55-61). The ALJ summarized her testimony as follows:
She claims that he is in constant pain, that his feet swell up badly, and that he needs to elevate his legs. She also claims that the claimant has tried to return to work, but is in too much pain. She also alleges that the claimant experiences significant anxiety, over things like traffic and elevators, which cause him to "freak out." She also reports that his impairments limit his ability to perform personal hygiene, meal preparation and housework, and that his impairments restrict his ability to perform most functional activities identified in the third-party questionnaire ([AR 480]). Further, she claims that the claimant can walk, "may be a block" though she is uncertain.(AR 26).
4. The AlJ's Finding and Analysis
The ALJ found Ms. Ortega's testimony and statements to be unsupported by, and inconsistent with, the medical record, noting that the record did not support Ms. Ortega's statements about Plaintiff's significant anxiety and other psychiatric symptoms, or reflect that Plaintiff presented to medical sources with swelling or edema in his left ankle (or any other extremity for that matter), or that he was observed to have significant ambulatory difficulties. (AR 26). "In light of these inconsistencies, and the general inconsistency between her claims and the sporadic and inconsistent nature of the claimant's medical record, I must conclude that Ms. Ortega's testimony and report do not significantly further the merits of the claimant's claim of continuing disability." (Id.).
As set forth above, Ms. Ortega's statement and testimony largely mirrored Plaintiff's statements and testimony about his symptoms and limitations. Since the ALJ gave clear and convincing reasons for discounting Plaintiff's subjective testimony, and because Plaintiff's girlfriend's "lay testimony was similar to [Plaintiff's] complaints, it follows that the ALJ also gave germane reasons for rejecting the lay witness testimony." Leon v. Berryhill, 880 F.3d 1041, 1046 (9th Cir. 2017); see Molina, 674 F.3d at 1122 (because "the lay testimony described the same limitations as [the claimant's] own testimony, . . . the ALJ's reasons for rejecting [the claimant's] testimony apply with equal force to the lay testimony"); Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009)("In light of our conclusion that the ALJ provided clear and convincing reasons for rejecting [the claimant's] own subjective complaints, and because [the claimant's wife's] testimony was similar to such complaints, it follows that the ALJ also gave germane reasons for rejecting [the claimant's wife's] testimony.").
Moreover, the ALJ's determination that Ms. Ortega's testimony was not supported by, and was inconsistent with the objective medical evidence (discussed above), was a germane reason for discounting Ms. Ortega's testimony. See Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2015)(inconsistency with the medical evidence is a germane reason for discrediting the testimony of a lay witness); Lewis, 236 F.3d at 511 ("One reason for which an ALJ may discount lay testimony is that it conflicts with medical evidence."); Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984)("The ALJ properly discounted lay witness testimony that conflicted with the available medical evidence."). As the ALJ noted (see AR 21), other than a single reference in a December 17, 2014 treatment record to a history of anxiety (AR 946), the majority of treatment records did not indicate that Plaintiff had psychiatric issues (see AR 846 [February 3, 2014], 848 [February 20, 2014] 938 [November 7, 2014], 951 [December 17, 2014]. Plaintiff has failed to point to any medical records reflecting that during the time period at issue (January 1, 2013 through April 4, 2018), Plaintiff suffered bad anxiety or other psychiatric symptoms, left foot and leg swelling, or significant ambulatory issues.
To the extent Plaintiff challenges the ALJ's statement that "there is no record of the claimant receiving any specialized psychiatric treatment or care in the past, or at times material hereto" (AR 21), based on his lack of resources to pay for psychiatric or psychological treatment (see Joint Stip. at 3), Plaintiff's argument fails. First, the ALJ was not referring to the lack of special psychiatric treatment obtained by Plaintiff, because the record did not contain any psychiatric treatment records (see AR 783, 1113-14). Second, Plaintiff's claimed lack of resources to pay for psychiatric and psychological treatment is undermined by his March 4, 2015 hearing testimony that he was currently on Medi-Cal and had been "on and off" Medi-Cal for a couple of years (see AR 125-27), and by medical records reflecting he was able to and did obtain treatment for other conditions from February to December 2014 (see AR 845-959). In any event, Plaintiff's lack of specialized psychiatric treatment was not the sole basis for the ALJ's determination that Plaintiff's alleged depression and anxiety were not severe impairments; the ALJ also relied on the fact that there was only one reference to anxiety in the treatment records and on the absence of psychiatric issues presented in the treatment records (see AR 21), as discussed above. Thus, the ALJ properly found that Plaintiff's alleged mental impairments were not severe. See 20 C.F.R. § 404.1520(c) (A severe impairment is one that significantly limits the physical or mental ability to perform basic work activities); Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005)(An impairment is not severe if it is merely "a slight abnormality (or combination of slight abnormalities) that has no more than a minimal effect on the ability to do basic work activities"); see also Social Security Ruling 85-28; Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987).
Plaintiff's challenges to the ALJ's determination that Plaintiff's impairments did not meet or medically equal Listings 1.02, 1.03 and 1.06 based on the lack of evidence showing that Plaintiff had the "inability to ambulate effectively" (20 C.F.R., Pt. 404, Subpt. P, App. 1, § 1.00B(2)(b)(1)) (see Joint Stip. at 3 ["Respondent was restrictive in determining the inability to ambulate effectively . . . . The definition is broader that the respondent's (AR 31) and does not necessarily require the use of canes or crutches. Evidence includes the description of antalgic gait (Exhibit 2F to Plaintiff's brief), moderate degenerative changes in left ankle joint (Id./5) [] and overall difficulty in walking."]), are meritless. § 1.00(B)(2)(b)(1) defines "inability to ambulate effectively as "an extreme limitation of the ability to walk, i.e., an impairment(s) that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities." Contrary to Plaintiff's assertion, the ALJ did not restrictively limit the "inability to ambulate effectively" to the use of canes or crutches. Rather, the ALJ found that there was no evidence in the record that Plaintiff required an assistive device that limited the functioning of both of his upper extremities, as required by § 1.00(B)(2)(1) ("Ineffective ambulation is defined generally as having insufficient lower extremity functioning . . . to permit independent ambulation without the use of a hand-held assistive devices(s) that limits the functioning of both upper extremities."). (AR 22). While, according to Plaintiff and Ms. Ortega, Plaintiff uses a cane and/or crutches to walk (see AR 140-41, 481, 500), Plaintiff has not cited to any evidence in the record showing that during the period at issue (January 1, 2013 through April 4, 2018), Plaintiff had an extreme limitation in his ability to walk.
The ALJ's finding that the testimony provided by Plaintiff's girlfriend was inconsistent with and not supported by the medical record was a germane reason for discounting Plaintiff's girlfriend's testimony regarding Plaintiff's limitations.
B. Plaintiff Has Failed to Show Prejudice From the Alleged Absence of a Comprehensive Record
Plaintiff asserts that the ALJ failed to properly evaluate Plaintiff's case because the non-comprehensive record contains material gaps which prejudiced Plaintiff. (See Joint Stip. at 9). Defendant asserts that Plaintiff's claim is moot to the extent it is based on Plaintiff's claim that in 1994, an SSA employee told Plaintiff there was no record of his case, and without merit to the extent it is based on Plaintiff's claim that a consultative orthopedic examiner was forced to change his opinions about Plaintiff's functional limitations. (See Joint Stip. at 12-14). The Court agrees with Defendant's position.
Plaintiff alleges that, because an SSA employee in 1994 allegedly told him that there was no record of Plaintiff's case, there are material gaps in the record (for example, there is no second notice referred to in a Department of Health and Human Services Letter to Plaintiff dated December 27, 1990, AR 376-77) which, according to Plaintiff, "may be concealing favorable information regarding [P]laintiff's disability." (See Joint Stip. at 9; see also Objection at 1 ["The [December 27, 1990] letter stated that the process involving Plaintiff's appeal included a second letter that Plaintiff would receive. That letter is not in evidence in the AR. It is nowhere to be found. It could have shown the fact that the agency found his disability continuing."]). However, to the extent that Plaintiff's allegations are directed at his 1990 request for benefits, the fact that Plaintiff was awarded benefit payments through March 2013 (his disability was found to have ended on January 1, 2013) and given the right to receive monthly checks payments through the date of the April 4, 2018 decision (see AR 152, 178-80, 168-69), renders any challenge related to his 1990 request for benefits moot. See Phuong Doan v. Astrue, 464 Fed.Appx 643, 644 (9th Cir. 2011)("Because [the claimant] was awarded disability benefits in 2006, dating back to the disability onset date that she had claimed in her original application for benefits, her instant claim for benefits is moot. What [the claimant] seeks here has already been granted."); Wysocki v. Sullivan, 761 F.Supp. 693, 696 (C.D. Cal. Apr. 9, 1991)("An action is moot where the plaintiff already has received all of the relief which would result from a favorable court ruling.").
In any event, Plaintiff's claim is also speculative since Plaintiff does not specify or explain how he was prejudiced by allegedly being told by a SSA employee in 1994 that there was no record of his case or by the alleged gaps in the record.
Plaintiff's fourth claim of error -- that in 1994 SSA staff misled Plaintiff by telling him there was no record of his case (see Joint Stip. at 17) -- appears to be a repetition of the first part of Plaintiff's second claim of error. The Court's rejection of this claim on grounds of mootness and lack of a showing of prejudice applies equally to Plaintiff's fourth claim of error.
Plaintiff claims that the report prepared by Dr. Thomas, an orthopedic specialist, in November 1990 evidences the lack of a comprehensive record because the report noted Plaintiff's need to use assistive devices for ambulation but a month later, a note sent to Dr. Thomas advised him to sign a pre-written statement about Plaintiff not having a need for the use of assistive devices for ambulation ("[C]laimant does not need crutches or any other assistive devices to ambulate now"), and "[i]t appears that, with lack of explanation or justification, [Social Security] Administration staff is directing Dr. Thomas to change his finding." (See Joint Stip. at 9; see also Objection at 2 ["It appears that Mr. Hernandez [from the Department of Social Services] offered a form for Dr. Thomas to sign and put forth an alternate fact, that [Plaintiff] does not need crutches[.]"]).
Plaintiff also cites to a prescription form dated April 9, 2016 (which Plaintiff erroneously states is dated May 4, 2017) that contains the following assessment: "No lifting, no pushing, no pressure in any part of the body." (See Joint Stip. at 9, citing AR 1105). Plaintiff has failed to clearly explain how such evidence supports his claim. The Court notes that the ALJ did not afford that assessment substantial weight because it "lacks indicia of reliability." (See AR 24-25).
On November 13, 1990, following an examination of Plaintiff, Dr. Thomas (an orthopedic medicine specialist) prepared a report (see AR 771-74), in which he noted that Plaintiff "is presently using two crutches full-time secondary to his complaints of pain in the area of the distal tibia and fibula with ambulation," Plaintiff "has moderate degenerative changes in his left ankle joint, and will require further rehabilitation in time before he is able to fully ambulate without a walking aid," and "[o]ne would expect that [Plaintiff] will progress to full weight bearing without the use of aids in the future, and would have little difficulty with activities." (AR 774). Dr. Thomas opined, inter alia, that Plaintiff can occasionally lift and/or carry up to 20 pounds, can frequently lift and/or carry 10 pounds, can stand and/or walk with two crutches about 6 hours, can sit about six hours, can push and/or pull unlimited "except for his lower extremities as noted above," and "has no other impairment-related physical limitations." (Id.).
In the Objection, Plaintiff cites to: (1) a note from Paul Hernandez of the California Department of Social Services - Division of Disability Evaluation to Dr. Thomas, dated December 13, 1990; and (2) a Report of Contact, undated. (See Objection at 9, citing AR 385-86). The December 13, 1990 note states (a checked box): "Please sign and return the enclosed report of information you provided by telephone. Regulations require your written confirmation." (AR 385). The undated Report of Contact, which is signed by a medical doctor whose signature is illegible, states that during a telephone conversation on December 6, 1990, Dr. Thomas stated the following: "The claimant does not need crutches or any other assistive devices to ambulate now. He could come off the crutches without any intermediate assistive devices and bear weight fully at this time. The fractures have healed radiographically and are clinically solid." (AR 386). Below Dr. Thomas's alleged statements is a blank, unsigned signature line. (Id.)
In the Report and Recommendation (Dkt. No. 38 at 33), the Court noted that Plaintiff had not cited the note that Plaintiff claimed was sent to Dr. Thomas a month after his November 13, 1990, consultative examination advising him to sign a pre-written statement about Plaintiff not having a need for the use of assistive devices for ambulation.
Contrary to Plaintiff's assertion, SSA staff, specifically, Paul Hernandez, did not direct Dr. Thomas to change his November 13, 1990 finding about Plaintiff's need for the use of an assistive device for ambulation. Rather, it appears that the report that Dr. Thomas apparently was asked to sign was based on Dr. Thomas's own statements to a medical doctor on December 6, 1990, that Plaintiff did not require the use of an assistive device for ambulation. (See AR 385-86; see AR 384 [the medical doctor, in an undated Consultation Request and Reply form, noted there was a "clarification of status with Dr. Thomas [on] 12/6/90"]). Moreover, it does not appear, and Plaintiff does not contend, that Dr. Thomas changed his opinion about Plaintiff's functional limitations. Accordingly, this claim is without merit.
Again, to the extent that Plaintiff's allegations are directed at his 1990 request for benefits, this claim is moot. There simply is no basis for the Court to conclude that the SSA attempted to change Dr. Thomas's opinion. In any event, substantial evidence in the record, including treatment records and the opinions of other consultative examiners, supports the ALJ's determination that Plaintiff did not need the use of an assistive device for ambulation. (See e.g., AR 871 [November 1, 2014 Progress Note: "Muscle bulk and tone are normal. Power is good in all four extremities."; "He walks easily with slight limp favoring the left ankle."]; 791-96 [November 3, 2012 Report of Orthopedic Consultation by Payam Moazzaz, M.D., an orthopedic surgeon: "The gait has a diminished cadence and velocity without signs of limp or antalgia."; "He does not require the use of any assistive device."]; 1106-11 [July 12, 2017 Report of Orthopedic Consultation by Juliane Tran, M.D., a physical medicine and rehabilitation specialist: "He does not require an assistive device to ambulate."]).
Plaintiff's third claim of error -- that the ALJ erred in finding that Plaintiff was not disabled since January 2013 (see Joint Stip. at 14-15) -- appears to be a repetition of Plaintiff's first and second claims of error which the Court has already rejected. To the extent that Plaintiff simply disagrees with the ALJ's interpretation of the evidence, that disagreement provides no basis for finding the ALJ's interpretation to be irrational. Molina, 674 F.3d at 1111 ("Even when the evidence is susceptible to more than one rational interpretation, we must uphold the ALJ's findings if they are supported by inferences reasonably drawn from the record."; citation omitted); Burch, 400 F.3d at 679 ("Where evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld."). --------
Plaintiff's claims regarding the absence of a comprehensive medical record are moot and without merit. C. Plaintiff Has Failed to Show the SSA Failed to Comply with the Appeals Council's March 10, 2016 Order
Plaintiff asserts that the SSA failed to comply with the Appeals Council's Order dated March 10, 2016, regarding payments to Plaintiff from January 2013 to the date of the new decision (April 4, 2018) (AR 168-69). (See Joint Stip. at 18). Respondent asserts that the SSA was not able to process payments "prior to the January 2013 determination" due to the lack of "payment information for Plaintiff," and that such payments will be processed "[o]nce Plaintiff provides payment information to SSA." (See Joint Stip. at 19).
Here, the SSA did not fail to comply with the Appeal's Council's Order regarding payments to Plaintiff. Contrary to Plaintiff's assertion, the Appeals Council did not order the SSA to pay Plaintiff benefits from January 2013 to the date of the new decision (April 4, 2018). Rather, that Order states in pertinent part: "The hearing officer will notify the claimant about the right to have monthly check[s] continued until a new decision is made. If the claimant is also eligible to receive checks for months since the prior dismissal order, the notice will also explain the claimant's right to receive them." (AR 169). While the Appeals Council's Order gave Plaintiff the right to receive payments for the period of January 1, 2013 to April 4, 2018, the Order did not require the SSA to send Plaintiff payments without the need for Plaintiff to take further action.
In any event, to the extent that Plaintiff is challenging his non-receipt of payments for the period of January 1, 2013 to April 4, 2018, any error by the SSA in not giving Plaintiff those payments is harmless, in light of the ALJ's determination that Plaintiff was not disabled from January 1, 2013 to April 4, 2018 (AR 28). See Burch, 400 F.3d at 679 ("A decision of the ALJ will not be reversed for errors that are harmless."); see also Carmichkle v. Commissioner, 533 F.3d 1155, 1162 (9th Cir. 2008)("[T]he relevant inquiry in this context is not whether the ALJ would have made a different decision absent any error . . ., it is whether the ALJ's decision remains legally valid, despite such error."). To the extent that Plaintiff is complaining about his non-receipt of payments for the period prior to January 2013, his claim is likely moot since, according to Defendant, all Plaintiff has to do to receive his payments is provide the SSA with his payment information (which he may already have done).
V. RECOMMENDATION
For the reasons discussed above, IT IS RECOMMENDED that the district court issue an Order: (1) accepting and adopting this Final Report and Recommendation; and (2) directing that Judgment be entered affirming the decision of the Commissioner and dismissing this action with prejudice. DATED: February 18, 2021.
/s/_________
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE