Opinion
Case No. 3:19-cv-01837-AC
12-22-2020
JAMES B., Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security, Defendant.
FINDINGS AND RECOMMENDATION
ACOSTA, U.S. Magistrate Judge.
James B. ("Plaintiff") brings this appeal challenging the Commissioner of the Social Security Administration's ("Commissioner") denial of his applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act. The Court has jurisdiction to hear this appeal pursuant to 42 U.S.C. § 1383(c)(3), which incorporates the review provisions of 42 U.S.C. § 405(g). For the reasons explained below, the Commissioner's decision should be affirmed.
STANDARD OF REVIEW
The district court may set aside a denial of benefits only if the Commissioner's findings are "'not supported by substantial evidence or [are] based on legal error.'" Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). Substantial evidence is defined as "'more than a mere scintilla [of evidence] but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)).
The district court "cannot affirm the Commissioner's decision 'simply by isolating a specific quantum of supporting evidence.'" Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)). Instead, the district court must consider the entire record, weighing the evidence that both supports and detracts from the Commissioner's conclusions. Id. Where the record as a whole can support either a grant or a denial of Social Security benefits, the district court "'may not substitute [its] judgment for the [Commissioner's].'" Bray, 554 F.3d at 1222 (quoting Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)).
BACKGROUND
I. PLAINTIFF'S APPLICATION
Born in 1965, Plaintiff was 42 years old on his alleged disability onset date of June 10, 2007. (Tr. 117-18, 124-26.) Plaintiff has a GED. (Tr. 146.) He has past relevant work experience in construction, most recently as a drywall applicator. (Tr. 24, 130-34, 177.) Plaintiff alleges disability due to degenerative disc disease, anxiety, and depression. (Tr. 236-40, 890, 892.)
Plaintiff filed an application for DIB on July 29, 2015 and his SSI application on November 6, 2015. (Tr. 117-18, 124-26.) The Commissioner denied Plaintiff's applications initially and upon reconsideration and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. 50-51, 64-66, 68.) Plaintiff and a vocational expert ("VE") appeared and testified at a hearing held on May 7, 2018. (Tr. 961-87.) After the hearing, the ALJ issued a written decision dated July 5, 2018 denying Plaintiff's applications for SSI and DIB. (Tr. 13-26.) The Appeals Council denied review on September 23, 2019, making the ALJ's decision the final decision of the Commissioner. (Tr. 6.) Plaintiff now seeks judicial review of that decision.
II. THE SEQUENTIAL ANALYSIS
A claimant is considered disabled if he or she is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C. § 423(d)(1)(A). "Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act." Keyser v. Comm'r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Those five steps are: (1) whether the claimant is currently engaged in any substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the impairment meets or equals a listed impairment; (4) whether the claimant can return to any past relevant work; and (5) whether the claimant is capable of performing other work that exists in significant numbers in the national economy. Id. at 724-25. The claimant bears the burden of proof for the first four steps. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). If the claimant fails to meet the burden at any of those steps, the claimant is not disabled. Id.; Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987).
The Commissioner bears the burden of proof at step five of the sequential analysis, where the Commissioner must show the claimant can perform other work that exists in significant numbers in the national economy, "taking into consideration the claimant's residual functional capacity, age, education, and work experience." Tackett, 180 F.3d at 1100. If the Commissioner fails to meet this burden, the claimant is disabled. Bustamante, 262 F.3d at 954 (citations omitted).
III. THE ALJ'S DECISION
The ALJ applied the five-step sequential evaluation process to determine if Plaintiff is disabled. (Tr. 18-26.) At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since June 10, 2007, his alleged onset date. (Id.) At step two, the ALJ determined that Plaintiff suffered from the following severe impairments: degenerative disc disease of the cervical, thoracic, and lumbar spine, status/post cervical laminectomy in 2012 and lumbar laminectomy and fusion in 2015. (Tr. 19.)
At step three, the ALJ concluded that Plaintiff did not have an impairment that meets or equals a listed impairment. (Tr. 20.) The ALJ then concluded that Plaintiff had the residual functional capacity ("RFC") to perform work with the following limitations:
[Plaintiff can] lift and/or carry 10 pounds frequently and 20 pounds occasionally. He can sit up to six hours of an eight-hour workday. He can stand and/or walk up to six hours total of an eight-hour workday. He can push and pull as much as lifting and carrying. However, he is limited to frequent pushing and/or pulling. He is limited to frequent climbing of ramps and stairs. He can occasionally stoop, crouch, crawl, and climb ladders and scaffolds.(Tr. 20.)
At step four, the ALJ concluded that Plaintiff was unable to perform his past work as a drywall applicator. (Tr. 24.) At step five, the ALJ concluded that Plaintiff was not disabled because a significant number of jobs existed in the national economy that he could perform, including hand packager, mail clerk, and production assembler. (Tr. 25.) \ \ \ \ \ \ \ \ \ \ \ \ \ \ \
DISCUSSION
The only dispute here is whether the ALJ properly rejected Plaintiff's subjective symptom testimony regarding the severity of his symptoms and limitations. The ALJ is required to provide specific, clear and convincing reasons for rejecting a claimant's testimony. Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014).
Plaintiff also challenges the ALJ's acceptance of the medical opinion of Linda Jensen, M.D., but provides no legal argument for this point. --------
Plaintiff testified he was unable to work due to severe, chronic pain in his neck and lower back that make it difficult for him to sit, stand or walk for significant periods of time. Plaintiff also alleged numbness in his extremities that further limit his ability to stand and walk, as well as his ability to handle objects. (Tr. 169, 171-74.)
The ALJ rejected Plaintiff's testimony regarding his symptoms and limitations to the extent they conflicted with the RFC. First, the ALJ noted that Plaintiff did not stop working due to his alleged physical symptoms and limitations. (Tr. 22.) A claimant's impairment "must be the primary reason for his or her inability to engage in substantial gainful work" SSR 82-61, available at 1982 WL 31387, at *1, but an ALJ may disregard pain testimony where a claimant stopped work for reasons other than his impairments. Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001). Plaintiff alleged a disability onset date of June 10, 2007, and he testified that he stopped working in 2007 when he moved from Kansas to Oregon, but he also testified that at the time he moved to Oregon, he was not experiencing any physical problems that would have prevented him from continuing his drywall work. (Tr. 22, 966.) The ALJ provided a specific, clear and convincing reason to reject Plaintiff's pain testimony. Bruton, 268 F.3d at 828.
As a second reason for rejecting Plaintiff's testimony, the ALJ noted that Plaintiff's work activity after the alleged onset date contradicted his statements regarding disabling pain and limitations. A claimant's work activities can provide a clear and convincing reason to reject the claimant's testimony. Ford v. Saul, 950 F.3d 1141, 1156 (9th Cir. 2020). Here, a Plaintiff testified that he performed part-time, under-the-table work after 2007. (Tr. 967.) Plaintiff also stated that he tried to keep active and works on projects, including helping friends with painting and light construction work. (Tr. 914, 933, 967, 974.) While Plaintiff testified that he last worked for pay in 2010, he reported to medical providers in April 2017 that he was still working part-time odd jobs. (Tr. 23, 933.) Because Plaintiff's work activities contradict his testimony that he experienced completely disabling physical symptoms beginning in 2007, the ALJ provided a second clear and convincing reason to reject Plaintiff's subjective symptom testimony. Ford, 950 F.3d at 1156.
The ALJ next noted that Plaintiff's non-work activities also contradicted his testimony. The ALJ may consider a claimant's daily activities in assessing his symptom testimony. 20 C.F.R. §§ 404.1529(c)(3)(i), 416.929(c)(3)(i). Activities that are incompatible with the severity of alleged symptoms can support an ALJ's rejection of a claimant's testimony. Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014). Here, for example, the ALJ noted that Plaintiff was playing tackle football in late 2010, despite his allegation that he became completely disabled in 2007. (Tr. 22, 293). The record also indicates that Plaintiff engaged in activities such as "socializing, making bracelets, and walking on the beach," and reported to a treatment provider in 2014 that he was doing "a lot of hiking." (Tr. 12, 23.) On this record, it was reasonable for the ALJ to conclude that Plaintiff was not as disabled as alleged in his testimony.
As a fourth reason for rejecting Plaintiff's testimony, the ALJ noted that Plaintiff did not comply with treatment recommendations for his degenerative disc disease and associated symptoms. The unexplained failure to seek and follow through with treatment is a legally sufficient reason to reject a claimant's testimony. Molina v. Astrue, 674 F.3d 1104, 1113-14 (9th Cir. 2012). Here, Plaintiff declined multiple recommended treatments for his back pain, including surgery, spinal injections, and pain medications. (Tr. 21-24.) Although Plaintiff argues that he declined surgery and injections for good reasons - his previous surgeries had failed, on the one hand, and his insurance would not cover some recommended injections, on the other - it remains unexplained why he declined to try gabapentin after trying several other pain management medications. (Tr. 895, 900, 902, 904, 930-31, 939, 942, 947.)
The ALJ is entitled to assign less weight to a claimant's testimony if the frequency and extent of treatment sought by the claimant is incompatible with the alleged degree of limitations. See SSR 16-3p, 2017 WL 5180304, at *4. On this record, Plaintiff's refusal to try Gabapentin despite complaints of disabling back pain adds further support to the ALJ's rejection of his testimony. Id.; Molina, 674 F.3d at 1113-14. The ALJ's decision was supported by substantial evidence and should be affirmed.
RECOMMENDATION
For the reasons stated, the Commissioner's decision should be AFFIRMED.
SCHEDULING ORDER
The court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ within fourteen (14) days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
DATED this 22nd day of December, 2020.
/s/_________
JOHN ACOSTA
United States Magistrate Judge