Opinion
Case No. 1:17-cv-02020-SB
12-07-2020
STEPHEN N., Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security, Defendant.
FINDINGS AND RECOMMENDATION
BECKERMAN, U.S. Magistrate Judge.
Stephen N. ("Plaintiff") brings this appeal challenging the Commissioner of the Social Security Administration's ("Commissioner") denial of his application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. The Court has jurisdiction to hear this appeal pursuant to 42 U.S.C. § 405(g). For the reasons explained below, the Court recommends that the district judge affirm the Commissioner's decision.
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
Plaintiff protectively filed a DIB application on June 22, 2016, alleging disability as of March 1, 2013. (Tr. 141-42, 158-67.) He alleged disability due to bilateral plantar fasciitis with sinus tarsal tunnel syndrome, lower and upper back pain, chronic muscular strain left and right hip, peripheral neuropathy (right and left lower extremity), degenerative spinal instability, bipolar disorder, and PTSD. (Tr. 159.) He completed his GED and has past work experience as a radioman for the U.S. Navy, an investment portfolio analyst, and an insurance agent. (Tr. 160.)
To be eligible for DIB, "a worker must have earned a sufficient number of [quarters of coverage] within a rolling forty quarter period." Herbert v. Astrue, No. 07-cv-01016, 2008 WL 4490024, at *4 n.3 (E.D. Cal. Sept. 30, 2008). Workers accumulate quarters of coverage based on their earnings. Id. Typically, "the claimant must have a minimum of twenty quarters of coverage [during the rolling forty quarter period to maintain insured status]. . . . The termination of a claimant's insured status is frequently referred to as the 'date last insured' or 'DLI.'" Id. (citations omitted). Thus, Plaintiff's date last insured of March 31, 2013 (see Tr. 18) reflects the date on which his insured status terminated based on the prior accumulation of quarters of coverage. If Plaintiff established that he was disabled on or before March 31, 2013, he is entitled to DIB. See Truelsen v. Comm'r Soc. Sec., No. 2:15-cv-02386, 2016 WL 4494471, at *1 n.4 (E.D. Cal. Aug. 26, 2016) ("To be entitled to DIB, plaintiff must establish that he was disabled . . . on or before his date last insured." (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999))). Here Plaintiff alleges a disability onset date of March 1, 2013, and therefore the relevant period of disability spans only the month of March 2013. --------
The Commissioner denied Plaintiff's DIB application initially and upon reconsideration. (Tr. 89-93, 95-97.) Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), and appeared for a hearing on July 26, 2017. (Tr. 35-67.) On September 26, 2017, the ALJ issued a written decision denying Plaintiff's DIB application. (Tr. 12-34.) The Appeals Council declined review on October 19, 2017, and the ALJ's decision became the final decision of the Commissioner. (Tr. 1-6.) 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. 18-30.) At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity during the relevant period. (Tr. 18.) At step two, the ALJ determined that Plaintiff suffered from the severe impairments of PTSD, bipolar disorder, alcohol abuse disorder, and early lumbar degenerative disc disease. (Id.)
At step three, the ALJ concluded that Plaintiff did not have an impairment that meets or equals a listed impairment. (Tr. 19.) The ALJ then concluded that Plaintiff had the residual functional capacity ("RFC") to perform light work with the following limitations:
[Plaintiff] can stand and/or walk, and sit for approximately six hours in an eight hour day, with normal breaks. He can lift 20 pounds occasionally and 10 pounds frequently. He can climb no ladders, ropes, and scaffolds, but can occasionally
stoop, kneel, crouch, and crawl. He can occasionally climb stairs and ramps, and can understand, remember, and carry out uncomplicated and routine instructions that can be learned in 30 days or less. He can have no public contact, occasional direct contact with co-workers and no group tasks (no limitations on indirect contact); and occasional supervisor contact. He is limited to low stress work, defined as requiring only occasional changes in work settings and work duties, with no conveyor-belt paced work. He can have no exposure to moving mechanical parts and unprotected heights or hazards as defined by the [DOT].(Tr. 20.) At step four, the ALJ concluded that Plaintiff was unable to perform any of his past relevant work. (Tr. 28.) At step five, the ALJ determined that Plaintiff could perform a significant number of jobs in the national economy, including marking clerk, garment sorter, and electronics worker. (Tr. 30.) The ALJ therefore concluded that Plaintiff was not disabled within the meaning of the Social Security Act. (Id.)
DISCUSSION
The only issue in dispute on appeal is whether the ALJ properly considered and discounted Plaintiff's symptom testimony. As explained below, the Court concludes that the Commissioner's decision is free of harmful legal error and supported by substantial evidence, and therefore recommends that the district judge affirm the Commissioner's decision.
I. APPLICABLE LAW
The Ninth Circuit has "established a two-step analysis for determining the extent to which a claimant's symptom testimony must be credited[.]" Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). "First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment 'which could reasonably be expected to produce the pain or other symptoms alleged.'" Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014) (quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)). Second, "[i]f the claimant meets the first test and there is no evidence of malingering, the ALJ can only reject the claimant's testimony about the severity of the symptoms if she gives specific, clear and convincing reasons for the rejection." Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citation and quotation marks omitted).
The Ninth Circuit has recognized that clear and convincing reasons for rejecting a claimant's subjective symptom testimony "include conflicting medical evidence, effective medical treatment, medical noncompliance, inconsistencies in the claimant's testimony or between her testimony and her conduct, daily activities inconsistent with the alleged symptoms, and testimony from physicians and third parties about the nature, severity and effect of the symptoms complained of." Bowers v. Astrue, No. 11-cv-583-SI, 2012 WL 2401642, at *9 (D. Or. June 25, 2012) (citing Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008), Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007), and Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997)).
II. ANALYSIS
At the administrative hearing, Plaintiff testified that he was unable to work during the relevant time period (i.e., March 1-31, 2013), primarily due to his mental health symptoms. (Tr. 45-57.) With respect to this time period, Plaintiff testified at the hearing only that he was not taking his medication and was "spinning and spinning." (Tr. 21, 25-26, 46; see also Tr. 146, Plaintiff stated in his function report that he handles stress "poorly" because "I spin out of control"). There is no evidence of malingering here, and the ALJ determined that Plaintiff provided objective medical evidence of underlying impairments which might reasonably produce the symptoms alleged. (Tr. 26.) The ALJ was therefore required to provide clear and convincing reasons for discrediting Plaintiff's testimony. The ALJ met that standard here.
The ALJ correctly noted that "[t]here is no evidence available from the period at issue, which is only the month of March 2013, and no evidence for several months before and after that period." (Tr. 20; see also Tr. 26, "[T]here is no evidence specifically regarding the claimant's status in March 2013, while the record prior to that point, and subsequent to that point through September 2013, also fails to show any significant functional limitations[.]"). Indeed, the only testimony Plaintiff provided with respect to the mental health symptoms he was experiencing during March 2013 (as opposed to a later time period after his father passed away) was that he was not taking his medication and was "spinning and spinning." (Tr. 46.) The ALJ directly addressed Plaintiff's "spinning" testimony, noting that Plaintiff "could give no more specific description of mood or PTSD symptoms." (Tr. 25.) The ALJ may discount testimony that is too vague to support a finding of disability. See, e,g., Tommasetti, 533 F.3d at 1040 (finding that it was appropriate for the ALJ to discount the claimant's "vague" testimony). Although Plaintiff takes issue with the ALJ's "paraphrasing" of his testimony, notably he does not point to any specific testimony that the ALJ failed to address here.
In the absence of relevant symptom testimony (or medical evidence) about the March 2013 time period, the ALJ addressed Plaintiff's "implication that he was significantly symptomatic in March 2013," concluding that his implication was "not supported by the evidence." (Tr. 21) (emphasis added). The ALJ then provided clear and convincing reasons, supported by substantial evidence, for discounting the implication that Plaintiff's disabling symptoms prevented him from maintaining full-time employment during March 2013.
The ALJ discounted Plaintiff's alleged disabling symptoms as inconsistent with normal examination findings, failure to seek treatment, and improvement with medication. (Tr. 20-28.) All are valid reasons to discount a claimant's subjective symptom allegations. See Romo v. Berryhill, 731 F. App'x 574, 577-78 (9th Cir. 2018) (holding that "'[i]mpairments that can be controlled effectively with [treatment] are not disabling'" (quoting Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006))); Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) ("Contradiction with the medical record is a sufficient basis for rejecting the claimant's subjective testimony.") (citation omitted); Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) (holding that "evidence of 'conservative treatment' is sufficient to discount a claimant's testimony regarding severity of an impairment").
Specifically, the ALJ noted that the medical evidence of record immediately prior to or during the relevant time period (i.e., March 2013) includes normal examination findings. (Tr. 20-21.) The ALJ noted that Plaintiff's medical records reveal no hospitalizations between 2006 and September 2013 (Tr. 19), and that leading up to March 2013, Plaintiff's most recent mental health care records include mostly benign examination findings, reflecting only mild mental health symptoms. (Tr. 22, 235.) The ALJ acknowledged that the medical evidence reflects a deterioration in Plaintiff's mental health beginning in September 2013 when his father passed away, but that occurred six months after the disability period at issue. (Tr. 20, 286-87.) The conflict between the medical records and Plaintiff's symptom testimony is a clear and convincing reason to discount the testimony, and substantial evidence supported that conclusion here.
The ALJ also discounted Plaintiff's symptom testimony due to Plaintiff's failure to seek medical treatment during the relevant time period, noting that he missed a January 2013 appointment and did not see a provider again until June 2013, at which time he complained only of knee pain. (Tr. 21, 297.) Plaintiff claims that his failure to seek treatment during the relevant period was due to the side effects of medication, but the ALJ accurately noted that Plaintiff had previously reported no side effects with medication in March 2011, reported after September 2013 that he "did quite well on risperidone and mirtazapine," and was able to remain compliant with his medications from 2011-2013. (Tr. 23, 291.) Plaintiff objects to the ALJ's consideration of medical records from 2011 (Pl.'s Reply Br. at 2-3), but fails to acknowledge that those were the most recent relevant medical records he submitted. A claimant's failure to seek treatment is a clear and convincing reason to discount testimony regarding the severity of disabling symptoms, and was supported by substantial evidence here.
Finally, the ALJ discounted Plaintiff's testimony because the record reflected that his mental health symptoms were controllable by medication, noting both his own statements to that effect as well as medical records from 2011 and September 2013 reflecting that Plaintiff's bipolar disorder was stable when he was compliant with his medications. (Tr. 23, 25.) Impairments that can be controlled by medication are not disabling, and the ALJ's discounting of Plaintiff's testimony on that ground was supported by substantial evidence here.
Plaintiff argues that the ALJ failed specifically to identify Plaintiff's testimony that she discounted, and therefore erred under the holding in Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). The Court disagrees. As noted above, Plaintiff did not provide any specific testimony about the symptoms he was experiencing during March 2013, other than that he was "spinning and spinning," which the ALJ directly addressed and appropriately discounted. Although Plaintiff challenges what he views as the ALJ's attack on his general credibility, the record reflects that the ALJ did not opine on his general truthfulness, but rather appropriately discounted the limited testimony he provided (and the implications therefrom) on the grounds that any allegations of total disability in March 2013 were contradicted by normal examination findings, a failure to seek treatment, and an ability to control symptoms with medication. For these reasons, the Court concludes that the Commissioner's decision is free of harmful legal error and supported by substantial evidence, and therefore recommends that the district judge affirm the Commissioner's decision.
CONCLUSION
For the reasons stated above, the Court recommends that the district judge AFFIRM the Commissioner's decision.
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 7th day of December, 2020.
/s/_________
HON. STACIE F. BECKERMAN
United States Magistrate Judge