(SS) Valadez v. Commissioner of Social Security

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8 IN THE UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 RICHARD VALADEZ, No. 2:19-CV-0614-DMC

12 Plaintiff,

13 v. MEMORANDUM OPINION AND ORDER

14 COMMISSIONER OF SOCIAL

SECURITY,

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Defendant.

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18 Plaintiff, who is proceeding with retained counsel, brings this action for judicial

19 review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g).

20 Pursuant to the written consent of all parties, see ECF Nos. 8 and 20, this case is before the

21 undersigned as the presiding judge for all purposes, including entry of final judgment, see 28

22 U.S.C. § 636(c). Pending before the Court are the parties’ briefs on the merits. See ECF Nos. 17

23 and 18.

24 The Court reviews the Commissioner’s final decision to determine whether it is:

25 (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a

26 whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is

27 more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521

28 (9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to support

1 a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole,

2 including both the evidence that supports and detracts from the Commissioner’s conclusion, must

3 be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones

4 v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The Court may not affirm the Commissioner’s

5 decision simply by isolating a specific quantum of supporting evidence. See Hammock v.

6 Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative

7 findings, or if there is conflicting evidence supporting a particular finding, the finding of the

8 Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).

9 Therefore, where the evidence is susceptible to more than one rational interpretation, one of

10 which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v.

11 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal

12 standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th

13 Cir. 1988).

14 For the reasons discussed below, the Commissioner’s final decision is affirmed.

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16 I. THE DISABILITY EVALUATION PROCESS

17 To achieve uniformity of decisions, the Commissioner employs a five-step

18 sequential evaluation process to determine whether a claimant is disabled. See 20 C.F.R.

19 §§ 404.1520 (a)-(f) and 416.920(a)-(f). The sequential evaluation proceeds as follows:

20 Step 1 Determination whether the claimant is engaged in

substantial gainful activity; if so, the claimant is presumed

21 not disabled and the claim is denied;

22 Step 2 If the claimant is not engaged in substantial gainful activity,

determination whether the claimant has a severe

23 impairment; if not, the claimant is presumed not disabled

and the claim is denied;

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Step 3 If the claimant has one or more severe impairments,

25 determination whether any such severe impairment meets

or medically equals an impairment listed in the regulations;

26 if the claimant has such an impairment, the claimant is

presumed disabled and the claim is granted;

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1 Step 4 If the claimant’s impairment is not listed in the regulations,

determination whether the impairment prevents the

2 claimant from performing past work in light of the

claimant’s residual functional capacity; if not, the claimant

3 is presumed not disabled and the claim is denied;

4 Step 5 If the impairment prevents the claimant from performing

past work, determination whether, in light of the claimant’s

5 residual functional capacity, the claimant can engage in

other types of substantial gainful work that exist in the

6 national economy; if so, the claimant is not disabled and

the claim is denied.

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See 20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f).

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9 To qualify for benefits, the claimant must establish the inability to engage in

10 substantial gainful activity due to a medically determinable physical or mental impairment which

11 has lasted, or can be expected to last, a continuous period of not less than 12 months. See 42

12 U.S.C. § 1382c(a)(3)(A). The claimant must provide evidence of a physical or mental

13 impairment of such severity the claimant is unable to engage in previous work and cannot,

14 considering the claimant’s age, education, and work experience, engage in any other kind of

15 substantial gainful work which exists in the national economy. See Quang Van Han v. Bower,

16 882 F.2d 1453, 1456 (9th Cir. 1989). The claimant has the initial burden of proving the existence

17 of a disability. See Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).

18 The claimant establishes a prima facie case by showing that a physical or mental

19 impairment prevents the claimant from engaging in previous work. See Gallant v. Heckler, 753

20 F.2d 1450, 1452 (9th Cir. 1984); 20 C.F.R. §§ 404.1520(f) and 416.920(f). If the claimant

21 establishes a prima facie case, the burden then shifts to the Commissioner to show the claimant

22 can perform other work existing in the national economy. See Burkhart v. Bowen, 856 F.2d

23 1335, 1340 (9th Cir. 1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); Hammock

24 v. Bowen, 867 F.2d 1209, 1212-1213 (9th Cir. 1989).

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1 II. THE COMMISSIONER’S FINDINGS

2 Plaintiff applied for social security benefits on June 20, 2016. See CAR 19.1 In

3 the application, plaintiff claims disability began on December 13, 2015. See id. Plaintiff’s claim

4 was initially denied. Following denial of reconsideration, plaintiff requested an administrative

5 hearing, which was held on February 15, 2018, before Administrative Law Judge (ALJ) Vincent

6 A. Misenti. In a July 25, 2018, decision, the ALJ concluded plaintiff is not disabled based on the

7 following relevant findings:

8 1. The claimant has the following severe impairment(s): lumbar

degenerative disc disease, lumbar spine dextroscoliosis, a left

9 biceps tendon tear, and a contracture of the left bicep;

10 2. The claimant does not have an impairment or combination of

impairments that meets or medically equals an impairment listed in

11 the regulations;

12 3. The claimant has the following residual functional capacity: the

claimant can perform light work; he can occasionally perform left

13 non-dominant hand overhead reaching, and can frequently perform

all other reaching with the left upper extremity; the claimant can

14 frequently climb ramps and stairs, frequently balance, stoop, kneel,

crouch, and crawl, and occasionally climb ladders and scaffolds;

15 the claimant must avoid concentrated exposure to fumes, dust,

odors, gases, poorly ventilated areas, and chemicals;

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4. Considering the claimant’s age, education, work experience,

17 residual functional capacity, and vocational expert testimony, there

are jobs that exist in significant numbers in the national economy

18 that the claimant can perform.

19 See id. at 21-27.

20 After the Appeals Council declined review on February 8, 2019, this appeal followed.

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1 Citations are the to the Certified Administrative Record (CAR) lodged on

28 September 18, 2019. See ECF No. 13.

1 III. DISCUSSION

2 In his motion for summary judgment, plaintiff argues the ALJ failed to provide

3 sufficient reasons to find his testimony and statements not credible.2

4 The Commissioner determines whether a disability applicant is credible, and the

5 court defers to the Commissioner’s discretion if the Commissioner used the proper process and

6 provided proper reasons. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996). An explicit

7 credibility finding must be supported by specific, cogent reasons. See Rashad v. Sullivan, 903

8 F.2d 1229, 1231 (9th Cir. 1990). General findings are insufficient. See Lester v. Chater, 81 F.3d

9 821, 834 (9th Cir. 1995). Rather, the Commissioner must identify what testimony is not credible

10 and what evidence undermines the testimony. See id. Moreover, unless there is affirmative

11 evidence in the record of malingering, the Commissioner’s reasons for rejecting testimony as not

12 credible must be “clear and convincing.” See id.; see also Carmickle v. Commissioner, 533 F.3d

13 1155, 1160 (9th Cir. 2008) (citing Lingenfelter v Astrue, 504 F.3d 1028, 1936 (9th Cir. 2007),

14 and Gregor v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006)).

15 If there is objective medical evidence of an underlying impairment, the

16 Commissioner may not discredit a claimant’s testimony as to the severity of symptoms merely

17 because they are unsupported by objective medical evidence. See Bunnell v. Sullivan, 947 F.2d

18 341, 347-48 (9th Cir. 1991) (en banc). As the Ninth Circuit explained in Smolen v. Chater:

19 The claimant need not produce objective medical evidence of the

[symptom] itself, or the severity thereof. Nor must the claimant produce

20 objective medical evidence of the causal relationship between the

medically determinable impairment and the symptom. By requiring that

21 the medical impairment “could reasonably be expected to produce” pain or

another symptom, the Cotton test requires only that the causal relationship

22 be a reasonable inference, not a medically proven phenomenon.

23 80 F.3d 1273, 1282 (9th Cir. 1996) (referring to the test established in

Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986)).

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27 2 Plaintiff does not challenge the ALJ’s evaluation of the medical opinion evidence.

As to this evidence, the court notes the ALJ accepted the opinions of agency consultative

28 physician, Dr. Arnold, which formed the basis of the ALJ’s residual functional capacity finding.

1 The Commissioner may, however, consider the nature of the symptoms alleged,

2 including aggravating factors, medication, treatment, and functional restrictions. See Bunnell,

3 947 F.2d at 345-47. In weighing credibility, the Commissioner may also consider: (1) the

4 claimant’s reputation for truthfulness, prior inconsistent statements, or other inconsistent

5 testimony; (2) unexplained or inadequately explained failure to seek treatment or to follow a

6 prescribed course of treatment; (3) the claimant’s daily activities; (4) work records; and (5)

7 physician and third-party testimony about the nature, severity, and effect of symptoms. See

8 Smolen, 80 F.3d at 1284 (citations omitted). It is also appropriate to consider whether the

9 claimant cooperated during physical examinations or provided conflicting statements concerning

10 drug and/or alcohol use. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). If the

11 claimant testifies as to symptoms greater than would normally be produced by a given

12 impairment, the ALJ may disbelieve that testimony provided specific findings are made. See

13 Carmickle, 533 F.3d at 1161 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)).

14 As to plaintiff’s credibility, the ALJ first summarized plaintiff’s statements and

15 testimony:

16 The claimant alleged that he had severe back pain, scoliosis, locking in his

legs, numbness in his feet, pain in his neck, difficulty picking up items,

17 and bone pain in his arm and shoulder (Exhibit 3E/2). He testified that his

back and his left arm prohibited him from working, and that he had

18 chronic pain extending from his lower back to his neck and radiating down

to through both legs (Testimony). He also testified to instances of falling

19 such that he now required a cane (Id.). In addition, he stated that he also

had a left arm impairment from his construction job and had developed

20 tendinitis, which caused daily pain and swelling (Id.). Functionally, he

testified that he was able to reach his arm overhead, could lift ten pounds,

21 walk for five minutes, and sit for twenty minutes (Id.).

22 CAR 23-24.

23 The ALJ next discussed the credibility of plaintiff’s statements regarding specific

24 limitations:

25 As for the claimant’s statements about the intensity, persistence, and

limiting effects of his spinal symptoms, they are inconsistent with the

26 medical evidence. He underwent a number of objective medical tests on

his spine, which evidence degenerative changes in his lumbar spine. His

27 September 2014 lumbar spine x-ray indicated lumbar spine dextroscoliosis

(Exhibit 3F/23) and his June 2015 lumbar spine MRI showed multilevel

28 degenerative disc disease, a protruding disc at the L4-5 level, and

1 narrowing of the neural foramen at the L5 nerve root (Exhibit 1F/4, 17).

A subsequent August 2016 lumbar spine MRI indicated foraminal

2 herniation at the L1-2, L4-5, L3-4, and L5-S1 vertebral discs, and mild

generalized facet arthropathy (Exhibit 1F/13). He also has limitations

3 noted by his treating physician, F. Karl Gregorius, M.D., of radicular pain

in his right leg and numbness in his toes (Exhibit 1F/4). The claimant also

4 has one instance where he used a cane in November 2016 (Exhibit

15F/145). However, while the claimant has alleged significant limitations

5 associated with his spinal impairments, including instances of falling,

lifting only ten pounds, and walking for five minutes, his statements are

6 not corroborated by objective physical examinations throughout the record

(Testimony). The undersigned notes that from July through September

7 2015, January through August 2016, and January through May 2017, the

claimant exhibited normal gait and extremities, and normal motor strength

8 and sensation in his upper and lower extremities bilaterally (Exhibits 2F/2,

11, 15, 20, 25, 32; 10F/14-15, 19). During recent examinations in

9 November 2016 and November 2017, he continued to exhibit normal gait

(Exhibits 4F/1, 8F/7, 10F/14). These examinations do not indicate that the

10 use of a cane is medically necessary. To minimize aggravation to the

claimant’s herniated discs and radicular pain, the residual functional

11 capacity restricts the claimant to light work with frequent climbing of

ramps and stairs; frequent balancing, stooping, kneeling, crouching, and

12 crawling; and occasional climbing of ladders and scaffolds.

13 With regard to his left upper extremity, in August 2016 the claimant was

diagnosed with a biceps tendon tear (Exhibit 2F/3) and a contracture of the

14 left bicep (Exhibit 3F/5). His April 2016 left humerous MRI showed a

partial tear of the distal biceps tendon (Exhibit 4F/31-32). However, as

15 discussed above, musculoskeletal examinations from July 2015 through

May 2017 show no abnormalities in the claimant’s extremities, and

16 normal motor strength and sensation in his upper extremities (Exhibits

2F/2, 11, 15, 20, 25, 32; 10F/14-15, 19). Given evidence of a biceps tear

17 and reduced range of motion in the claimant’s left upper extremity, the

residual function capacity restricts the claimant to light work and provides

18 that he can occasionally perform left non-dominant hand overhead

reaching, and can frequently perform all other reaching with his left upper

19 extremity.

20 CAR 24-25.

21 Plaintiff argues:

22 In this case, the ALJ made no specific findings regarding

Plaintiff’s credibility. See Tr. 26. The only findings made by the ALJ was

23 the general finding that “the claimant’s statements about the intensity,

persistence and limiting effects of his spinal symptoms, they are

24 inconsistent with the medical evidence”. Tr. 24. No further reasoning was

given by the ALJ. The ALJ failed to provide more than general findings in

25 contravention of the law. Orn v Astrue, 495 F.3d 625, 636 (9th Cir 2007)

(“it is not sufficient for the adjudicator to make a single, conclusory

26 statement that `the individual's allegations have been considered' or that

`the allegations are [not] credible.’”).

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1 The 9th circuit has addressed this issue specifically in the case of

Brown-Hunter v. Colvin. Brown-Hunter v. Colvin, 806 F.3d 487 (9th Cir.

2 2015). The ALJ made a general finding that the “functional limitations

from the claimant impairments were less serious than alleged”. Id. at 493

3 (9th Cir. 2015). The court concluded that they could not. This was not the

kind of specific reasons sufficient to determine that the Plaintiff’s

4 “testimony was not arbitrarily discredited”. Id. at 494. The court further

found that “Because the ALJ failed to identify the testimony she found not

5 credible, she did not link that testimony to the particular parts of the record

supporting her noncredibility determination” the ALJ had created legal

6 error. Id.

In the present case, the ALJ committed the same legal error by

7 failing to provide any reasons beyond a general finding and then

summarizing the medical evidence. Id.; see also Henshaw v. Colvin, No.

8 1: 14-cv-01788-SKO (E.D. Cal. Feb. 11, 2016) (The court found that the

ALJ erred by providing only general findings followed by a summary of

9 medical evidence); Powers v. Colvin, No. 1: 15-cv-00077-EPG (E.D. Cal.

June 20, 2016) (The ALJ erred by providing no specific findings regarding

10 the Plaintiff’s credibility); Reali v. Berryhill, No. 2: 17-cv-422-EFB (E.D.

Cal. Sept. 13, 2018). “Although the ALJ summarized a significant portion

11 of the administrative record in support of her RFC determination,

providing a summary of medical evidence in support of a residual

12 functional capacity finding is not the same as providing clear and

convincing reasons for finding the claimant's symptom testimony not

13 credible”. Brown-Hunter, 806 F.3d at 494 (emphasis in original).

“Likewise, here, the ALJ offered no more than a summary of the medical

14 evidence, and she did not identify the testimony she did not find credible.”

Hernandez v. Berryhill, No. 1: 16-cv-01228-JLT (E.D. Cal. Feb. 21,

15 2017). “The Ninth Circuit's holding Brown-Hunter must be taken to mean

what it says. The circuit has spoken directly to the circumstances in this

16 case and made clear that, when they arise, reversal is mandated”. Reali,

supra.

17 The ALJ specifically mentioned rejecting Plaintiff’s complaints

regarding his spinal problems, but no findings regarding Plaintiff’s other

18 complaints regarding his arm and legs. Tr. 24, 60. Plaintiff testified to pain

and numbness in his legs, which required a cane to ambulate despite

19 frequent injections. Tr. 60-61. The ALJ did not take this testimony into

account. The ALJ further failed to take into account testimony regarding

20 Plaintiff limited vision and flares of arm pain due to overuse, which

despite not working occurred with regularity. Tr. 63, 71. The ALJ

21 failed to provide any specific reasoning for rejecting the testimony of the

Plaintiff, causing harmful error. Burch, 400 F.3d at 680.

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ECF No. 9-10.

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24 Plaintiff concedes the ALJ properly considered his testimony concerning spinal

25 problems. The gravamen of plaintiff’s argument is that the ALJ failed to provide credibility

26 findings specific to his other impairments to his arm and legs.

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wOADe 2 LDV EIT IVINS OUI DOI ee PAY VI

1 As to limitations associated with plaintiff's arms, the Court finds plaintiff's

2 || argument unpersuasive. The hearing decision reflects a detailed discussion of the evidence

3 | concerning plaintiff's arms, in particular his biceps muscles. The ALJ noted that the, while

4 | objective testing data showed a partial biceps tear, examinations in 2015 through 2017 showed

5 | normal motor strength and sensation in plaintiffs upper extremities. This evidence undermines

6 | plaintiff's specific allegations of functional limitations associated with his upper extremities.

7 The Court also finds plaintiff's argument concerning his legs unpersuasive. As

8 | with plaintiff's arms, the ALJ also discussed the objective evidence undermining plaintiff's

9 | subjective statements concerning his legs. Plaintiff stated he experienced swelling in his legs.

10 | Objective evidence, however, shows that from July through September 2015, January through

11 | August 2016, and January through May 2017, examinations revealed normal gait and normal

12 | motor strength in the lower extremities bilaterally. The ALJ also noted that recent examinations

13 | in November 2016 and November 2017 continued to reveal normal gait. Despite plaintiffs

14 | complaints of disabling limitations associated with his legs, the ALJ noted that examining

15 || professionals have not recommended the use of a cane.

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17 IV. CONCLUSION

18 Based on the foregoing, the Court concludes that the Commissioner’s final

19 || decision is based on substantial evidence and proper legal analysis. Accordingly, IT IS HEREBY

20 | ORDERED that:

21 1. Plaintiff's motion for summary judgment, ECF No. 17, is denied;

22 2. Defendant’s motion for summary judgment, ECF No. 18, is granted;

23 3. The Commissioner’s final decision is affirmed; and

24 4. The Clerk of the Court is directed to enter judgment and close this file.

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26 | Dated: September 25, 2020 Sx<o_-

27 DENNIS M. COTA

28 UNITED STATES MAGISTRATE JUDGE