# Brickey Rushing v. Andrew M. Saul

> District Court, C.D. California · April 20, 2020

URL: https://www.frixlaw.com/law-library/cases/10037687

## Case

- **Court:** District Court, C.D. California
- **Decided:** April 20, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10037687

## How later opinions describe it (automated extraction)

- applying earlier 25 version of § 404.1529(c)(2)

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
BRICKEY R.,1 ) Case No. CV 19-4953-JPR
11
)
Plaintiff, )
12
) MEMORANDUM DECISION AND ORDER
v. )
13
)
ANDREW SAUL, Commissioner )
14
of Social Security, )
)
15
Defendant. )
)
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17 I. PROCEEDINGS
18 Plaintiff seeks review of the Commissioner’s final decision
19 denying his application for Social Security Disability Insurance
20 Benefits (“DIB”). The matter is before the Court on the parties’
21 Joint Stipulation, filed February 3, 2020, which the Court has
22 taken under submission without oral argument. For the reasons
23 stated below, the Commissioner’s decision is affirmed.
24
25
26
1 Plaintiff’s name is partially redacted in line with
27 Federal Rule of Civil Procedure 5.2(c)(2)(B) and the
recommendation of the Committee on Court Administration and Case
28 Management of the Judicial Conference of the United States.
1
1 II. BACKGROUND
2 Plaintiff was born in 1969. (Administrative Record (“AR”)
3 132.) He has a high-school education and worked for more than 17
4 years as a groundskeeper for the Los Angeles Unified School
5 District. (See AR 136; see also AR 37 (vocational expert
6 describing Plaintiff’s job as “hybrid” of groundskeeper and
7 commercial or institutional cleaner).) He applied for DIB on
8 April 1, 2016, alleging that he had been unable to work since
9 June 11, 2013, because of “[b]ack [s]train,” “[s]pinal [f]usion,”
10 and “[k]nee injury.” (AR 132, 135.) After his claim was denied
11 initially and on reconsideration, he requested a hearing. (AR
12 69.) A hearing was held on March 5, 2018, at which Plaintiff,
13 who was represented by counsel, testified (AR 31, 33-36), as did
14 a vocational expert (AR 36-41). In a written decision dated May
15 9, 2018, the ALJ found Plaintiff not disabled. (AR 25; see AR
16 18-25.) He requested review from the Appeals Council (AR 119),
17 but it denied his request (AR 1). This action followed.
18 III. STANDARD OF REVIEW
19 Under 42 U.S.C. § 405(g), a district court may review the
20 Commissioner’s decision to deny benefits. The ALJ’s findings and
21 decision should be upheld if they are free of legal error and
22 supported by substantial evidence based on the record as a whole.
23 See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v.
24 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence
25 means such evidence as a reasonable person might accept as
26 adequate to support a conclusion. Richardson, 402 U.S. at 401;
27 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It
28 is “more than a mere scintilla but less than a preponderance.”
2
1 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec.
2 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). “[W]hatever the
3 meaning of ‘substantial’ in other contexts, the threshold for
4 such evidentiary sufficiency is not high.” Biestek v. Berryhill,
5 139 S. Ct. 1148, 1154 (2019). To determine whether substantial
6 evidence supports a finding, the reviewing court “must review the
7 administrative record as a whole, weighing both the evidence that
8 supports and the evidence that detracts from the Commissioner’s
9 conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir.
10 1998). “If the evidence can reasonably support either affirming
11 or reversing,” the reviewing court “may not substitute its
12 judgment” for the Commissioner’s. Id. at 720-21.
13 IV. THE EVALUATION OF DISABILITY
14 People are “disabled” for purposes of Social Security if
15 they are unable to engage in any substantial gainful activity
16 owing to a physical or mental impairment that is expected to
17 result in death or has lasted, or is expected to last, for a
18 continuous period of at least 12 months. 42 U.S.C.
19 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir.
20 1992).
21 A. The Five-Step Evaluation Process
22 The ALJ follows a five-step sequential evaluation process in
23 assessing whether a claimant is disabled. 20 C.F.R.
24 § 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th
25 Cir. 1995) (as amended Apr. 9, 1996). In the first step, the
26 Commissioner must determine whether the claimant is currently
27 engaged in substantial gainful activity; if so, the claimant is
28 not disabled and the claim must be denied. § 404.1520(a)(4)(i).
3
1 If the claimant is not engaged in substantial gainful
2 activity, the second step requires the Commissioner to determine
3 whether the claimant has a “severe” impairment or combination of
4 impairments significantly limiting his ability to do basic work
5 activities; if not, a finding of not disabled is made and the
6 claim must be denied. § 404.1520(a)(4)(ii) & (c).
7 If the claimant has a “severe” impairment or combination of
8 impairments, the third step requires the Commissioner to
9 determine whether the impairment or combination of impairments
10 meets or equals an impairment in the Listing of Impairments
11 (“Listing”) set forth at 20 C.F.R. part 404, subpart P, appendix
12 1; if so, disability is conclusively presumed and benefits are
13 awarded. § 404.1520(a)(4)(iii) & (d).
14 If the claimant’s impairment or combination of impairments
15 does not meet or equal an impairment in the Listing, the fourth
16 step requires the Commissioner to determine whether the claimant
17 has sufficient residual functional capacity (“RFC”)2 to perform
18 his past work; if so, the claimant is not disabled and the claim
19 must be denied. § 404.1520(a)(4)(iv). The claimant has the
20 burden of proving he is unable to perform past relevant work.
21 Drouin, 966 F.2d at 1257. If the claimant meets that burden, a
22 prima facie case of disability is established. Id.
23 If that happens or if the claimant has no past relevant
24
25 2 RFC is what a claimant can do despite existing exertional
26 and nonexertional limitations. § 404.1545(a)(1); see Cooper v.
Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). The
27 Commissioner assesses the claimant’s RFC between steps three and
four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017)
28 (citing § 416.920(a)(4)).
4
1 work, the Commissioner then bears the burden of establishing that
2 the claimant is not disabled because he can perform other
3 substantial gainful work available in the national economy, the
4 fifth and final step of the sequential analysis.
5 §§ 404.1520(a)(4)(v), 404.1560(b).
6 B. The ALJ’s Application of the Five-Step Process
7 At step one, the ALJ found that Plaintiff had not engaged in
8 substantial gainful activity since June 11, 2013, the alleged
9 onset date. (AR 20.) His date last insured was December 31,
10 2019. (Id.) At step two, the ALJ determined that he had severe
11 impairments of “disorders of the back” and “arthritis.” (Id.)
12 At step three, he found that Plaintiff’s impairments did not meet
13 or equal a listing. (AR 21.) At step four, he concluded that
14 Plaintiff had the RFC to perform a limited range of light work:
15 [He] can lift and/or carry 20 pounds occasionally and 10
16 pounds frequently. He can stand and/or walk for six
17 hours of an eight-hour workday, and can sit for six hours
18 of an eight-hour workday, with normal breaks. He can
19 bend, stoop, crouch and crawl occasionally.
20 (Id. (citing § 404.1567(b)).) He could not perform his past
21 relevant work. (AR 23.) At step five, the ALJ found that
22 Plaintiff could perform jobs existing in significant numbers in
23 the national economy. (AR 24.) Accordingly, he found him not
24 disabled. (AR 25.)
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1 V. DISCUSSION3
2 Plaintiff contends that the ALJ “impermissibly rejected
3 [his] subjective symptom testimony.” (J. Stip. at 4.) For the
4 reasons discussed below, the ALJ did not err.
5 A. Applicable Law
6 An ALJ’s assessment of a claimant’s allegations concerning
7 the severity of his symptoms is entitled to “great weight.”
8 Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989) (as amended)
9 (citation omitted); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir.
10 1985) (as amended Feb. 24, 1986). “[T]he ALJ is not ‘required to
11 believe every allegation of disabling pain, or else disability
12 benefits would be available for the asking, a result plainly
13 contrary to 42 U.S.C. § 423(d)(5)(A).’” Molina v. Astrue, 674
14 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair v. Bowen, 885 F.2d
15 597, 603 (9th Cir. 1989)).
16 In evaluating a claimant’s subjective symptom testimony, the
17 ALJ engages in a two-step analysis. See Lingenfelter, 504 F.3d
18 at 1035-36; see also SSR 16-3p, 2016 WL 1119029, at *3 (Mar. 16,
19 2016). First, the ALJ must determine whether the claimant has
20 presented “objective medical evidence of an underlying impairment
21
22
3 In Lucia v. SEC, 138 S. Ct. 2044, 2055 (2018), the Supreme
Court held that ALJs of the Securities and Exchange Commission
23 are “Officers of the United States” and thus subject to the
Appointments Clause. To the extent Lucia applies to Social
24 Security ALJs, Plaintiff has forfeited the issue by failing to
raise it during his administrative proceedings. (See AR 31-42,
25
119-20, 182-83); Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir.
26 1999) (as amended) (plaintiff forfeits issues not raised before
ALJ or Appeals Council); see also Kabani & Co. v. SEC, 733 F.
27 App’x 918, 919 (9th Cir. 2018) (rejecting Lucia challenge because
plaintiff did not raise it during administrative proceedings),
28 cert. denied, 139 S. Ct. 2013 (2019).
6
1 [that] could reasonably be expected to produce the pain or other
2 symptoms alleged.” Lingenfelter, 504 F.3d at 1036 (citation
3 omitted). If such objective medical evidence exists, the ALJ may
4 not reject a claimant’s testimony “simply because there is no
5 showing that the impairment can reasonably produce the degree of
6 symptom alleged.” Id. (citation omitted; emphasis in original).
7 If the claimant meets the first test, the ALJ may discount
8 the claimant’s subjective symptom testimony only if he makes
9 specific findings that support the conclusion. See Berry v.
10 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). Absent a finding or
11 affirmative evidence of malingering, the ALJ must provide a
12 “clear and convincing” reason for rejecting the claimant’s
13 testimony. Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir.
14 2015) (as amended) (citing Lingenfelter, 504 F.3d at 1036);
15 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th
16 Cir. 2014). The ALJ may consider, among other factors, (1) the
17 claimant’s reputation for truthfulness, prior inconsistent
18 statements, and other testimony that appears less than candid;
19 (2) unexplained or inadequately explained failure to seek
20 treatment or to follow a prescribed course of treatment; (3) the
21 claimant’s daily activities; (4) the claimant’s work record; and
22 (5) testimony from physicians and third parties. See Rounds v.
23 Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (as
24 amended); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir.
25 2002). If the ALJ’s evaluation of a plaintiff’s alleged symptoms
26 is supported by substantial evidence in the record, the reviewing
27 court “may not engage in second-guessing.” Thomas, 278 F.3d at
28 959.
7
1 In evaluating a claimant’s subjective symptoms, the ALJ
2 considers “all of the available evidence” in the record,
3 § 404.1529(c)(1), including the “objective medical evidence,”
4 § 404.1529(c)(2), and “other evidence” from medical sources,
5 § 404.1529(c)(3). Objective medical evidence is obtained through
6 “medically acceptable clinical and laboratory diagnostic
7 techniques.” § 404.1529(c)(2) (listing as examples “evidence of
8 reduced joint motion, muscle spasm, sensory deficit or motor
9 disruption”). “[O]ther evidence” is everything else relevant to
10 evaluating pain, including, for example, “medical opinions about
11 the individual’s symptoms and their effects” and the
12 “longitudinal record of any treatment and its success or
13 failure.” SSR 16-3p, 2016 WL 1119029, at *6; see
14 § 404.1529(c)(3) (evidence from medical sources about what
15 precipitates or aggravates pain, medications or treatments
16 prescribed or used to alleviate it, and how it affects claimant’s
17 daily life are all “other evidence”).
18 Contradiction with the “objective medical evidence” is a
19 “specific and legitimate” basis for rejecting a claimant’s
20 subjective symptom testimony. Morgan v. Comm’r of Soc. Sec.
21 Admin., 169 F.3d 595, 600 (9th Cir. 1999); see § 404.1529(c)(2).
22 But it “cannot form the sole basis for discounting” it. Burch v.
23 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005); Rollins v.
24 Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (applying earlier
25 version of § 404.1529(c)(2)).
26 B. Applicable Background
27 1. Objective medical and other evidence
28 Plaintiff reportedly hurt his right knee in 1998, when he
8
1 “slipped and fell” while “walking down the stairs” at work,
2 “twist[ing]” it. (AR 353.) He underwent ACL and meniscal repair
3 shortly thereafter (see AR 196, 353) and reportedly had a third
4 right-knee surgery in 2001 “because he re-tore his medial
5 meniscus” (AR 353). While recovering from that operation, he
6 allegedly “heard a pop” in his left knee. (Id.) He has “worn
7 the knee sleeve ever since.”4 (Id.) His right-knee pain
8 allegedly “increased significantly” “[o]ver the years” and by
9 2013 he “could barely walk.” (Id.)
10 He also reportedly injured his back on March 31, 2009, when
11 he “lifted an over 50 pound bag to place in the dumpster,
12 twisted, and felt a burning pain and spasm in his low back.” (AR
13 1077; see AR 353.) A lumbar-spine MRI taken May 8, 2009, showed
14 “[m]inimal desiccation at the L3/L4 disc level,” “3mm broad-based
15 right lateral (foraminal/extraforaminal) disc protrusion,” and
16 “right foraminal radial annular tear.” (AR 192-93.)
17 “Otherwise,” the lumbar spine was “normal,” and there was “no
18 evidence of significant central canal spinal stenosis nor nerve
19 compression.” (AR 193.) By December 15, 2009, Plaintiff
20 reported to Nicole Minh-Nguyet Pham-Bailey,5 his treating doctor,
21 that he had no lower-back pain and “could tolerate hiking 5 miles
22
23 4 It is not clear on which knee Plaintiff wears the device.
In April 2016 he stated that he had worn it on the right “for 19
24 years” (AR 151) but apparently told the workers’-compensation
doctor that he wore it in response to a left-knee injury (see AR
25
353).
26
5 Dr. Pham-Bailey primarily practices occupational medicine.
27 See Cal. Dep’t Consumer Aff. License Search, https://
search.dca.ca.gov (search for “Pham-Bailey” under doctors’
28 licenses) (last visited Apr. 13, 2020).
9
1 on medium difficulty trail with no difficulty or pain.” (AR
2 1056.) Dr. Pham-Bailey concluded that his lumbar strain was
3 “resolved.” (Id.)
4 Plaintiff underwent a “routine physical examination” on
5 March 11, 2013, a few months before his alleged onset date. (AR
6 224.) He reported “just . . . his normal pains in the right side
7 of the body associated with the . . . shoulder, back and knee”
8 joints. (Id.) He had “normal” motor skills, sensation,
9 strength, and reflexes. (AR 226.)
10 Plaintiff’s “last day of work” was June 11, 2013, the
11 alleged onset date (AR 353, 996), shortly after he had reportedly
12 experienced “excruciating” pain and notified his supervisor that
13 he could no longer work (AR 369). He took “disability
14 retirement” on February 28, 2014. (AR 368; see also AR 129
15 (reporting earnings in 2014).)
16 On December 6, 2013, Plaintiff saw Andrew Miles, an
17 orthopedist, for right-knee pain that “increase[d] with walking
18 and prolonged standing,” among other things. (AR 483.) He did
19 not report back pain. (Id.) Dr. Miles diagnosed him with
20 “[r]ight knee internal derangement” and opined that he could
21 return to work immediately, provided he could “interchange
22 between standing and sitting positions as needed for comfort,”6
23 didn’t lift more than 15 pounds, and had “limited” posturals (AR
24 484), an assessment he extended a number of times (see, e.g., AR
25 490 (Jan. 10, 2014, increasing lifting to 20 pounds), 502 (Jan.
26
27 6 A patient-status-report form completed by Dr. Miles the
same day, listing his work limitations, did not include the sit-
28 stand-at-will requirement. (AR 482.)
10
1 24, 2014) (retaining 20-pound-lifting limitation)).
2 On July 8, 2014, John Beck, an orthopedic surgeon, evaluated
3 Plaintiff for his workers’-compensation claim; he complained of
4 “right knee pain that ha[d] been present since 1998,”
5 “intermittent pain” in his left knee, and “intermittent mid and
6 lower back pain and spasms.” (AR 352, 354.) He claimed to have
7 “difficulty dressing and bathing,” “riding and driving,” and
8 “standing[,] sitting, reclining, bending, pushing/pulling,
9 walking, and climbing stairs.” (AR 354-55.) He stated that he
10 had no difficulty lifting or carrying. (Id.) Examination of the
11 lumbar spine showed “normal” deep-tendon reflexes and “no
12 swelling or ecchymosis,”7 and he had somewhat diminished range of
13 motion; upper-extremity “[s]ensation to light touch” was
14 “normal,” but the straight-leg-raising test8 was “positive” on
15 both legs. (AR 360.) “Examination of the knees revealed left
16 knee swelling, effusion and crepitation.” (Id.; see id. (noting
17 that “[g]rinding was noted on the left knee”).) He had “normal”
18 range of motion in both knees. (Id.) Dr. Beck opined that he
19 could sit “constant[ly]” — “6-8+” hours in an eight-hour day —
20 and could stand or walk “1-3 hours” a day. (AR 426.)
21 Plaintiff saw Randy Rosen, a pain-management specialist (AR
22
23
7 “Ecchymosis is the medical term for the common bruise.”
24 Understanding Ecchymosis, Healthline, https://www.healthline.com/
health/ecchymosis (last visited Apr. 13, 2020).
25
26
8 A straight-leg-raise test involves mechanical manipulation
of the legs, stressing the neurological tissues in the spine;
27 specific symptoms reported at different degrees of flexion can
indicate nerve compression. See The Pain Clinic Manual 44-45
28 (Stephen E. Abram & J. David Haddox eds., 2d ed. 2000).
11
1 597), on July 10, 2014, for an “interventional pain management
2 follow up evaluation” (AR 591). He reported back pain — five to
3 eight on a scale of 10 — that had “decreased since” a visit the
4 previous month. (AR 592.) He had had a “bilateral L2 through L4
5 medial branch joint” injection9 on June 21, 2014, resulting in
6 “50% to 60% improvement” in his pain. (Id.) He also took
7 Vicodin, which he found “very helpful.” (Id.) On examination,
8 he had mostly normal range of motion in his lumbar spine and
9 fully intact sensation and lower-extremity muscle strength and
10 reflexes. (AR 594-95.) Dr. Rosen noted that Plaintiff was “able
11 to go into extension and lateral bending with greater ease and
12 able to walk longer periods without any aggravation of his low
13 back pain.” (AR 595.)
14 On August 24, 2014, Dr. Beck reviewed the May 2008 lumbar-
15 spine MRI, which “confirm[ed]” to him that the lumbar area was
16 “the source of [Plaintiff’s] back pain.” (AR 348.)
17 Walter Burnham, an orthopedic surgeon (AR 432), completed a
18 “secondary treating physician’s orthopedic followup with request
19 for authorization for lumbar spine surgery” on October 24, 2014
20 (AR 429). He “believe[d] that on each visit [Plaintiff’s]
21 complaints and physical examination [had] been consistent.”
22 (Id.) He noted “instability” and “limited range of motion” in
23 the lumbar spine (AR 430); Plaintiff had full motor strength and
24
9 A lumbar facet-joint injection “involves injecting a small
25
amount of local anesthetic (numbing agent) and/or steroid
26 medication, which can anesthetize the facet joints and block the
pain.” Ray Baker, Cervical, Thoracic and Lumbar Facet Joint
27 Injections, Spine-health, https://www.spine-health.com/treatment/
injections/cervical-thoracic-and-lumbar-facet-joint-injections
28 (last visited Apr. 13, 2020).
12
1 sensation in the lower extremities, however (see id.; see also AR
2 431 (noting that Plaintiff probably had not been authorized for
3 surgery in part because he had “no motor or sensory deficits of
4 lower extremity”)). Dr. Burnham ordered “some diagnostic
5 imaging” and stated his intention to “continue to support the
6 fact that he is disabled” by his L3-L4 lumbar degeneration. (AR
7 431.) He predicted with a “high degree of certainty” that
8 Plaintiff would “improve with operative intervention.” (Id.) A
9 November 4, 2014 lumbar-spine x-ray in flexion and extension
10 showed “Grade I” spondylolisthesis10 at L3-L4. (AR 614.)
11 Dr. Miles prescribed a knee brace on February 9, 2015. (AR
12 638.)
13 A May 12, 2015 preoperative lumbar-spine x-ray again showed
14 “[m]ild degenerative disc disease at L3-L4” with Grade I
15 spondylolisthesis. (AR 900.) Dr. Burnham performed spinal
16 fusion at L3-L4 on May 19, 2015. (AR 914-15.) There were no
17 complications. (AR 915.)
18 Dr. Beck conducted another workers’-compensation evaluation
19 on February 13, 2016. (AR 994.) Plaintiff reported “continued
20 low back pain,” although it had “improved” since the surgery; he
21 also had “right knee pain.” (AR 996.) On examination of the
22 lumbar spine, his deep-tendon reflexes were “normal” and there
23 was “no swelling or ecchymosis.” (AR 1000.) “[L]umbar spasms”
24
25 10 Spondylolisthesis is measured in five “grades,” based on
26 the amount of vertebral slippage; “grade I” denotes zero to 25
percent slippage. William C. Shiel Jr., Spondylolisthesis,
27 eMedicineHealth, https://www.emedicinehealth.com/
spondylolisthesis/article_em.htm#what_causes_spondylolisthesis
28 (last visited Apr. 13, 2020).
13
1 and “[g]ross tenderness” were noted. (Id.) The straight-leg-
2 raising test was “positive from a supine position at 65 degrees
3 in the left and 55 degree[s] on the right and from seated
4 bilaterally.” (Id.) Upper-extremity “[s]ensation to light
5 touch” was “normal.” (Id.) He had partially diminished range of
6 motion of the lumbar spine. (AR 1000.) Dr. Beck anticipated
7 that Plaintiff would “reach[] maximum medical improvement one
8 year following the spinal fusion at L3-L4, in May 2016.” (AR
9 1016.)
10 Richard Pollis, an orthopedic surgeon (AR 652), conducted a
11 “complete orthopaedic evaluation” at Defendant’s request on June
12 14, 2016 (AR 648). Plaintiff reported that he could walk for “30
13 minutes at a time,” must “change position after sitting for 1
14 hour,” could lift 20 pounds, and needed to “limit lifting,
15 carrying, pushing, [and] pulling.” (Id.) He wore a knee brace.
16 (Id.) On lumbar examination he had limited range of motion in
17 flexion, extension, and on lateral bending, and there was
18 “paravertebral muscle spasm and tenderness present.” (AR 650.)
19 The straight-leg-raising test was “[l]imited to 80 degrees with
20 hamstring spasms, bilaterally.” (Id.) The doctor noted
21 tenderness on the right knee and limited range of motion “with
22 pain and crepitations.” (AR 651.) Motor strength was “grossly
23 within normal limits,” and sensation was “[n]ormal in both upper
24 and lower extremities.” (Id.) Based on Plaintiff’s history and
25 the physical examination, Dr. Pollis concluded that he
26 can lift and carry 20 pounds occasionally and 10 pounds
27 frequently. He can stand and wa1k 6 hours in an 8-hour
28 workday with appropriate breaks, and sit 6 hours in an
14
1 8-hour workday with appropriate breaks. Pushing and
2 pulling with the lower extremities are limited to
3 occasional. Posturally, [he] is able to bend, stoop,
4 crouch and climb occasionally.
5 (AR 652.)
6 State-agency doctor H. Pham11 reviewed Plaintiff’s records
7 on June 23, 2016, and agreed that he could perform light work
8 with postural limitations. (AR 51-52.)
9 On April 27, 2017, Plaintiff was evaluated by Robert Horner,
10 an orthopedic surgeon, in connection with his workers’-
11 compensation claim. (AR 1019.) He complained of lower-back pain
12 that increased when he lifted, pushed, or pulled more than 20
13 pounds and with bending and stooping, “prolonged sitting and
14 standing,” or sitting “without the use of an armrest.” (AR
15 1023.) His symptoms were relieved by rest, heat application,
16 medication, and his TENS unit.12 (Id.) “Overall, his low back
17 symptoms [had] improved” since surgery (id.): examination of the
18 lumbar spine showed “no evidence of paravertebral muscle spasm”
19 or “tenderness along the spinous processes,” but there was
20
21
11 Dr. Pham’s electronic signature includes a medical-
22 specialty code of 19, indicating internal medicine. (AR 55); see
Soc. Sec. Admin., Program Operations Manual System (POMS) DI
23 24501.004 (May 5, 2015), http://policy.ssa.gov/poms.nsf/lnx/
0424501004.
24
12 “A transcutaneous electrical nerve stimulation (TENS)
25
unit is a battery-operated device” that treats pain “by
26 delivering small electrical impulses through electrodes that have
adhesive pads to attach them to a person’s skin.” What is a TENS
27 unit and does it work?, MedicalNewsToday, https://
www.medicalnewstoday.com/articles/323632 (last visited Apr. 13,
28 2020).
15
1 “slight tenderness to palpation over the bilateral paraspinal
2 muscles” (AR 1028). The straight-leg-raising test was “negative
3 at 65 degrees on the right and 70 degrees on the left,” and there
4 was “no evidence of decreased sens[itivity]” and “no gross
5 weakness.” (Id.)
6 Plaintiff also complained to Dr. Horner of “constant sharp
7 pain” in the right knee and “buckling and locking episodes,”
8 requiring the knee to be “popped back in place.” (AR 1023.) His
9 symptoms increased with “prolonged standing and walking,”
10 “bending,” “driving” for more than an hour, “lifting more than 25
11 pounds,” “navigating stairs and inclines,” and with cold weather.
12 (Id.) Rest, elevation, heat, pain medication, and the TENS unit
13 “help[ed] reduce his symptoms,” which he felt were “worse[ning].”
14 (Id.) He also complained of “sharp pain” in his left knee that
15 responded to rest and medication. (Id.) On examination, he had
16 full range of motion in both knees. (AR 1029.)
17 Overall, Dr. Horner concluded that Plaintiff should be
18 precluded from “heavy lifting, repetitive bending, stooping,
19 kneeling, squatting and stair climbing,” and “prolonged weight-
20 bearing” and “should be off his feet for 20 minutes once or twice
21 an hour.” (AR 1082.) With these restrictions, he could return
22 to work immediately “on a part-time basis and gradually return to
23 work full-time.” (Id.)
24 2. Plaintiff’s statements and testimony
25 In a questionnaire dated April 27, 2016, Plaintiff stated
26 that his “back and knee pain” prevented him from “sitting,
27 standing, or walking for long periods of time.” (AR 149.) He
28 experienced back pain when he “tr[ied] to do regular daily
16
1 activities” and when he “ben[t]” or “twist[ed]”; his right knee
2 hurt after “spend[ing] long periods of time on [his] feet and
3 when [he] squat[ted].” (Id.) Although he “tr[ied] to walk
4 whenever possible,” the more he did, “the greater the pain [was]
5 in [his] back and right knee.” (Id.) He could climb stairs
6 “hold[ing] the rail, if available,” although “slowly.” (AR 150.)
7 He had been wearing a brace on his right knee “for 19 years.”
8 (AR 151.) He reported “some improvement since spinal fusion
9 surgery.” (Id.)
10 At the March 5, 2018 hearing, Plaintiff testified that in
11 June 2013, while working for LAUSD, he “experienced severe pain
12 in [his] back” and knee. (AR 33.) He informed his supervisor,
13 who “sent [him] to the workers’ comp doctor” and “took [him] off
14 work.” (Id.) His workers’-compensation case was “still
15 pending.” (AR 34.) He testified that since the injury he had
16 “[l]imited strength” and “a lot of pain” when bending. (Id.) He
17 had problems “lift[ing] and carry[ing].” (Id.) His right knee
18 “bother[ed]” him when he used stairs, lifted, or reached. (Id.)
19 He estimated that he could lift “about 20, 25 pounds.” (Id.) He
20 could stand “one or two hours at a time” followed by “30 minutes”
21 or “an hour” of rest and “sit comfortabl[y]” for “maybe 30, 45
22 minutes” before needing to “[g]et up and walk around” for 10 or
23 15 minutes to “stretch out.” (AR 35.) He also had an “issue”
24 with his right shoulder, namely, “a lot of pain” and “limited
25 mobility,” although he “seem[ed] to manage” it. (Id.)
26 3. The ALJ’s decision
27 The ALJ found Plaintiff’s “statements about the intensity,
28 persistence, and limiting effects” of his symptoms “partially
17
1 consistent with the treatment records.” (AR 22.)
2 The ALJ first considered the objective medical evidence
3 supporting Plaintiff’s claims of lower-back pain, noting that
4 although Dr. Beck found degenerative changes to be the “source of
5 [his] back pain,” the 2015 lower-back x-ray showed only “mild
6 degenerative disc disease.” (Id.) Moreover, he “had not yet
7 been authorized for spinal surgery because he had no motor or
8 sensory deficits” in his lower extremities. (Id.) The ALJ also
9 considered the progress of Plaintiff’s conditions over time,
10 noting that Dr. Burnham had “anticipated ‘with a high degree of
11 certainty’ that [Plaintiff] would improve with surgery” and that
12 Plaintiff had had L3-L4 fusion in May 2015. (Id.) And although
13 Dr. Pollis had found some continuing symptoms in June 2016, the
14 straight-leg-raising test was negative to 80 degrees
15 bilaterally.13 (Id.) He accordingly concluded that although
16 Plaintiff’s lower-back impairment “produced symptoms even after
17 the 2015 surgery,” he was nonetheless capable of “less than the
18 full range of light work.” (Id.)
19 The ALJ considered the longitudinal treatment record for
20 Plaintiff’s knee pain, noting specifically that the knee
21 surgeries were “remote.” (Id.) He noted that in 2016,
22 approximately 15 years after the most recent such surgery, Dr.
23 Pollis had observed only a “well-healed scar” and some
24 tenderness. (Id.) Objectively, Plaintiff had “range of motion
25 to 130 degrees in the right knee, with pain and crepitations”;
26
27 13 The ALJ stated that there was “no positive straight leg
test in evidence” (AR 22), but there were two (AR 360 (July
28 2014), 1000 (Feb. 2016)).
18
1 “[t]he left knee was observed as normal.” (AR 23.) Overall, the
2 ALJ concluded that the “persistence of symptoms related to
3 degenerative changes in the knee support[ed] a finding of
4 limitations related to the performance of postural movements.”
5 (Id.)
6 The ALJ also discussed the medical-opinion evidence,
7 including the opinions of Dr. Pollis and Dr. Pham, who opined
8 that Plaintiff could perform light work with additional
9 limitations. (Id.) He gave those opinions “significant weight”
10 because they were “consistent with the totality” of the record
11 evidence. (Id.) Ultimately, he agreed with both doctors that
12 Plaintiff’s symptoms “would limit him to less than the full range
13 of light work.” (AR 22 (implicitly discounting Plaintiff’s
14 statements concerning his lower back); see AR 23 (finding
15 objective evidence and other medical evidence “consistent with”
16 light-work RFC and discounting statements concerning knee
17 accordingly).)
18 C. Analysis
19 As an initial matter, the ALJ largely accepted Plaintiff’s
20 self-reported limitations in finding that he was capable of less
21 than the full spectrum of light work. Indeed, Plaintiff’s
22 complaints mostly concerned increased pain when performing
23 posturals (see AR 34 (reporting “a lot of pain” when bending),
24 149 (reporting increasing pain with bending, twisting, and
25 squatting)), and the ALJ found limitations “relat[ing] to the
26 performance of postural movements” (AR 23), limiting him to only
27 “occasional[]” such activity (AR 21). Similarly, Plaintiff’s
28 testimony that he could lift “about 20, 25 pounds” (AR 34) is not
19
1 inconsistent with light work. See § 404.1567(b) (light work
2 requires “lifting no more than 20 pounds at a time”). In finding
3 his statements only “partially consistent” with the treatment
4 records (AR 22), the ALJ implicitly rejected only his allegations
5 that he needed “30 minutes” to “an hour” of rest after standing
6 for “one or two hours” and that he could sit for “maybe 30, 45
7 minutes” before he needed to “[g]et up and walk around.” (AR
8 35); cf. § 404.1567(b).
9 To the extent he discounted Plaintiff’s subjective symptoms,
10 he provided clear and convincing reasons supported by substantial
11 evidence for doing so. First, he properly concluded that
12 Plaintiff’s claims were inconsistent with the objective medical
13 evidence (see AR 22), which is a valid basis for discounting a
14 claimant’s subjective symptom testimony. Morgan, 169 F.3d at
15 600; § 404.1529(c)(2). Second, the ALJ considered “other
16 evidence” from Plaintiff’s medical sources, including evidence of
17 the “longitudinal record of any treatment and its success or
18 failure,” SSR 16-3p, 2016 WL 1119029, at *6 (Mar. 28, 2016);
19 § 404.1529(c)(3) (evidence from medical sources about treatments
20 prescribed or used to alleviate pain is not “objective medical
21 evidence”), and the doctors’ opinions.
22 For example, contrary to Plaintiff’s claims of disabling
23 back pain (see AR 34-35, 149-50), the objective medical evidence
24 indicated that his lumbar degeneration was mild, even before the
25 May 2015 surgery. The November 2014 and May 12, 2015 lumbar-
26 spine x-rays showed only “mild,” “Grade I” degeneration at L3-L4
27 (AR 614, 900), as the ALJ specifically observed (AR 22 (“A 2015
28 x-ray showed mild degenerative disc disease.”)). That level of
20
1 degeneration did not manifest severe symptoms: at the July 10,
2 2014 examination, Plaintiff had mostly normal range of motion in
3 his lumbar spine and retained full sensation, strength, and
4 reflexes in his lower extremities. (See AR 594-95; see also AR
5 360 (Dr. Beck finding “normal” upper-extremity sensation in July
6 2014), 431 (Dr. Burnham noting in Oct. 2014 that Plaintiff had
7 not been approved for surgery because he had “no motor or sensory
8 deficits” in lower extremities).)
9 As to the other evidence, the treatment records demonstrated
10 that Plaintiff’s pain was receptive to treatment. (See AR 592
11 (Plaintiff reporting in July 2014 that injection provided 50 to
12 60 percent improvement in pain and that pain medication for
13 residual pain was “very helpful”); see also AR 22 (ALJ finding
14 Plaintiff’s statements inconsistent with “treatment records”).)
15 Indeed, it substantially eliminated his pain-related limitations.
16 (See, e.g., AR 354 (Plaintiff reporting in July 2014 that he had
17 no difficulty lifting or carrying), 595 (Dr. Rosen observing in
18 July 2014 that Plaintiff was “able to go into extension and
19 lateral bending with greater ease and able to walk longer periods
20 without any aggravation of his low back pain”).) Notably, Dr.
21 Miles opined in July 2014 that Plaintiff could sit “constantly,”
22 for “6-8+” hours without interruption (AR 426), directly
23 contradicting Plaintiff’s claim that he couldn’t (see AR 355
24 (stating to Dr. Beck in July 2014 that he could sit “for 30
25 minutes to one hour”); cf. id. (claiming he could sit “for two
26 hours”); see also AR 35 (claiming at hearing that he could sit
27 comfortably for “maybe 30, 45 minutes”)).
28 And as the ALJ recounted (see AR 22), Dr. Burnham found in
21
1 2014 that Plaintiff’s pain and limitations were entirely
2 attributable to his L3-L4 degeneration and predicted — with a
3 “high degree of certainty” — that those symptoms would “improve”
4 with surgery (AR 431; see also AR 1016 (Dr. Beck anticipating in
5 Feb. 2016 that Plaintiff would “reach[] maximum medical
6 improvement . . . in May 2016”)). The ALJ then concluded that
7 Plaintiff’s mild limitations had been further, although not
8 entirely, alleviated by the May 2015 surgery. (See generally AR
9 22 (noting that Plaintiff continued to experience some pain “even
10 after the 2015 surgery” but was capable of “less than the full
11 range of light work” notwithstanding extant symptoms).)
12 That finding is supported by the record. Plaintiff himself
13 reported “some improvement since spinal fusion surgery.” (AR 151
14 (Apr. 2016 questionnaire); see AR 996 (Plaintiff reporting
15 “improved” back pain in Feb. 2016).) Similarly, the straight-
16 leg-raising test, “positive” in 2014 (AR 360), was “negative” in
17 2016 (AR 1028 (Apr. 2016 test negative to 65 degrees on right and
18 70 on left)), as the ALJ noted (AR 22).14 And as before the
19 surgery, Plaintiff exhibited few if any signs of severe
20 degeneration or nerve impingement (see, e.g., AR 651 (Dr. Pollis
21 finding motor strength “grossly within normal limits” and motor
22 sensation “[n]ormal in both upper and lower extremities” in June
23 2016), 1028 (Dr. Horner finding “no evidence of decreased
24 sens[itivity]” and “no gross weakness” in Apr. 2017)) and
25
26
14 Although Dr. Beck noted a positive straight-leg-raising
27 test in February 2016 (AR 1000), he also anticipated that
Plaintiff would not fully recover from surgery until May 2016
28 (see AR 1016).
22
1 continued to experience relief from his pain medication (see AR
2 1023 (reporting pain relief from “rest, heat application,
3 medication, and TENS unit” in Apr. 2017)).
4 Plaintiff’s claims of “severe” knee pain since approximately
5 2013 (AR 33) are similarly inconsistent with the treatment
6 records. The injuries and corrective procedures he reported were
7 “remote,” as the ALJ noted. (AR 22); see SSR 16-3p, 2016 WL
8 1119029, at *6 (information in medical records about onset of
9 symptoms, their change over time, and plaintiff’s self-reported
10 activities not objective medical evidence); § 404.1529(c)(3).
11 Apart from evidence that he was prescribed and wore a knee brace
12 (see AR 638 (Dr. Miles prescribing “knee brace” in Feb. 2015),
13 648 (Dr. Pollis noting in June 2015 that he wore right-knee brace
14 “[a]t the present time”); cf. AR 151 (claiming in April 2016 that
15 he had worn knee brace “for 19 years”)), there is no evidence he
16 required any specialized treatment on the knee after 2001,
17 including after he applied for workers’ compensation in July 2013
18 claiming suddenly “severe” knee pain (see AR 33, 353).15 In any
19 event, the ALJ apparently accepted Plaintiff’s claims regarding
20 his knee. (See AR 23 (noting certain “persisten[t]” symptoms
21 “related to degenerative changes in the knee” and adopting
22 certain “limitations related to the performance of postural
23 movements”).)16
24
15 Although he complained of “sharp pain” in the knee in
25
April 2017 (AR 1023), examination revealed no irregularities
26 apart from a surgery scar (see AR 1029).
27 16 Plaintiff also claimed that his knee caused him
difficulty when “lifting” but testified that he could lift 20 to
28 (continued...)
23
1 Finally, the ALJ considered the postoperative medical-
2 opinion evidence,17 which showed that Plaintiff was capable of
3 light work with additional limitations. (See AR 23; see also AR
4 51, 652.) In granting those opinions “significant weight” (AR
5 23) — a finding Plaintiff has not challenged — the ALJ implicitly
6 discounted Plaintiff’s subjective symptoms to the limited extent
7 they were inconsistent with them. (See AR 22); see also
8 Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989) (court may
9 draw “specific and legitimate inferences from the ALJ’s
10 opinion”). This, too, was proper. See Molina, 674 F.3d at 1113
11 (examining doctor’s opinion that condition “was not severe” and
12 could be “controlled” was “specific, clear, and convincing
13 reason[]” to reject subjective symptom testimony); Moncada v.
14 Chater, 60 F.3d 521, 524 (9th Cir. 1995) (per curiam) (examining
15 doctor’s assessment that plaintiff “could do sedentary work” was
16 “specific” and “valid” reason to reject his “claims of excessive
17 pain”).
18 Notably, Plaintiff does not identify any record evidence
19 undermining the ALJ’s discounting of his subjective symptom
20 statements as only “partially consistent” with the treatment
21 records. (AR 22; see generally J. Stip. at 4-10.) Instead, he
22 contends that the ALJ “did not articulate a single sufficient
23 rationale” for discounting them, arguing that his stated reasons
24
16 (...continued)
25
25 pounds (AR 34), not inconsistent with performing light work.
26 See § 404.1567(b).
27 17 As noted, medical-opinion evidence is not objective
medical evidence. See SSR 16-3p, 2016 WL 1119029, at *6;
28 § 404.1529(c)(3).
24
1 were insufficient under Bunnell v. Sullivan, 947 F.2d 341, 345
2 (9th Cir. 1991) (en banc). (J. Stip. at 6; see id. at 6-7.)
3 Although Plaintiff is correct that subjective pain testimony
4 cannot be rejected on the sole basis that it is not fully
5 corroborated by objective medical evidence, see Burch, 400 F.3d
6 at 680 (citing Bunnell, 947 F.2d at 345); § 404.1529(c)(2), the
7 ALJ did not discount his symptoms solely on that basis. He also
8 found them inconsistent with “other evidence” in the medical
9 records and with the medical-opinion evidence. (See, e.g., AR 22
10 (finding symptoms inconsistent with “treatment records”).) The
11 ALJ’s holistic consideration of the treatment records beyond
12 simply the “objective medical evidence” in them was proper. See
13 § 404.1529(c)(2) & (3); George v. Berryhill, No.
14 1:16-cv-00335-GSA, 2017 WL 3383117, at *11 (E.D. Cal. Aug. 7,
15 2017) (ALJ properly discounted symptoms given lack of “objective”
16 medical evidence under § 404.1529(c)(2) and inconsistences with
17 other medical “opinions and observations” about plaintiff’s
18 symptoms under § 404.1529(c)(3)). And although Plaintiff claims
19 that the ALJ made “no attempt to provide specific, clear, and
20 convincing reasons for his credibility determination beyond the
21 routine language” (J. Stip. at 6), his decision, as discussed,
22 reflects a careful reading of all of the evidence, including the
23 trajectory of Plaintiff’s symptoms before and after his surgeries
24 (see AR 22-23).
25 Plaintiff cites “the fact [he] underwent” back surgery as
26 evidence “that he has sought out and underwent non-conservative
27 modes of treatment.” (J. Stip. at 8.) But the ALJ did not
28 discount his allegations on that basis (see AR 22), as Plaintiff
25
1 || concedes (see J. Stip. at 7), and his willingness to have back
surgery therefore does not undermine the ALJ’s reasoning. See
3 || Arlene R.M. v. Comm’r of Soc. Sec., No. 17-CV-370-FVS, 2019 WL
267912, at *5 (E.D. Wash. Jan. 18, 2019) (rejecting plaintiff’s
5 || argument that her credibility was “bolstered” by other evidence
6 || when she “failfed] to address the reasons cited by the ALJ or
7 || demonstrate any error”). Plaintiff also discusses his daily
8 | activities at length (see J. Stip. at 8-10) even though he
9 || concedes that the ALJ did not discount his testimony as
10 |} inconsistent with them (see id. at 9 (acknowledging that ALJ did
not “articulate [his] daily activities . . .as rationale to
12 }}reject his testimony”)). Because the ALJ indeed did not discount
13 |} Plaintiff’s testimony on that basis, the Court declines to
14 || address those arguments.
15 The ALJ stated clear and convincing reasons, supported by
16 || substantial evidence, to partially discount Plaintiff's
17 |} subjective symptom testimony. Reversal is not warranted.
18 || VI. CONCLUSION
19 Consistent with the foregoing and under sentence four of 42
20 |}U.S.Cc. § 405(g),7*® IT IS ORDERED that judgment be entered
21 || AFFIRMING the Commissioner’s decision, DENYING Plaintiff's
22 |} request for remand, and DISMISSING this action with prejudice.
23 || DATED: April 20,2020 fo boltate-
JEAN ROSENBLUTH
24 U.S. MAGISTRATE JUDGE
25 | -—
26 18 That sentence provides: “The [district] court shall have
power to enter, upon the pleadings and transcript of the record,
27 || a judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
28 || cause for a rehearing.”
26

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10037687. Public record. Not legal advice.