Robert Larry Snook v. Nancy A. Berryhill

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 ROBERT LARRY S.,1 Case No. 2:19-cv-05178-AFM

12 Plaintiff,

MEMORANDUM OPINION AND

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ORDER AFFIRMING DECISION

14 ANDREW M. SAUL, OF THE COMMISSIONER

15 Commissioner of Social Security,

16 Defendant.

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Plaintiff filed this action seeking review of the Commissioner’s final decision

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denying his application for disability insurance benefits. In accordance with the

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Court’s case management order, the parties have filed memorandum briefs

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addressing the merits of the disputed issues. The matter is now ready for decision.

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BACKGROUND

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In November 2012, Plaintiff applied for disability insurance benefits, alleging

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disability beginning March 3, 2009. Plaintiff’s application was denied initially and

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upon reconsideration. (Administrative Record [“AR”] 82-87, 89-98.) A hearing took

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1 Plaintiff’s name has been partially redacted in accordance with Federal Ruleof Civil Procedure

27 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case

Management of the Judicial Conference of the United States.

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1 place on November 23, 2015 before an Administrative Law Judge (“ALJ”). On

2 December 16, 2015, the ALJ issued a decision finding Plaintiff not disabled. (AR

3 103-111.) Subsequently, the Appeals Council remanded the case for further

4 proceedingsbased upon new information about Plaintiff’s date last insured. (AR 116-

5 120.) A second hearing was held before the ALJ on April 24, 2018. Plaintiff and a

6 vocational expert (“VE”) testified at the hearing. (AR 17-40.)

7 In a decision dated August 31, 2018, the ALJ found that Plaintiff suffered from

8 the severe impairments of multi-level mild to moderate degenerative changes in

9 thoracic and lumbar spines; obstructive sleep apnea; subtle meniscus and cartilage

10 abnormalities of the left knee status post remote repair; and obesity. (AR 47.) The

11 ALJ determined that Plaintiff retained the residual functional capacity (“RFC”) to

12 perform light work with limitations to frequent stooping, kneeling, crouching,

13 crawling, and bending and to occasional climbing ladders, working at unprotected

14 heights, and walking on uneven terrain. The ALJ also restricted Plaintiff to unskilled

15 work at the SVP 2 level. (AR 47.) Relying on the testimony of the VE, the ALJ

16 concluded that through the date last insured, Plaintiff was unable to perform his past

17 relevant work but could perform other jobs existing in significant numbers in the

18 national economy. (AR 54-55.)

19 The Appeals Council subsequently denied Plaintiff’s request for review (AR

20 1-6), rendering the ALJ’s decision the final decision of the Commissioner.

21 DISPUTED ISSUE

22 Whether the ALJ properly rejected Plaintiff’s subjective complaints.

23 STANDARD OF REVIEW

24 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to

25 determine whether the Commissioner’s findings are supported by substantial

26 evidence and whether the proper legal standards were applied. See Treichler v.

27 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Substantial

28 evidence means “more than a mere scintilla” but less than a preponderance. See

1 Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d

2 1028, 1035 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a

3 reasonable mind might accept as adequate to support a conclusion.” Richardson, 402

4 U.S. at 401. This Court must review the record as a whole, weighing both the

5 evidence that supports and the evidence that detracts from the Commissioner’s

6 conclusion. Lingenfelter, 504 F.3d at 1035. Where evidence is susceptible of more

7 than one rational interpretation, the Commissioner’s decision must be upheld. See

8 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).

9 DISCUSSION

10 A. Plaintiff’s Subjective Complaints

11 At the hearing in 2015, Plaintiff testified that he had difficulty lifting more

12 than five pounds due to back pain. Plaintiff described shooting pain down the back

13 of his legs. Plaintiff received “Pain Management” for his back and was prescribed

14 Percocet, Lyrica, and Diazepam. On a scale of zero to ten, Plaintiff said the pain was

15 a ten. Medication reduced the pain only to a nine. He received two epidural shots but

16 did not obtain lasting relief. Plaintiff also received neurolysis every six months. (AR

17 69-72, 75.)

18 Plaintiff estimated that he was able to stand for about 15 to 20 minutes before

19 his back began hurting. He could not sit for long periods without getting up and

20 moving around. According to Plaintiff, he had to lie flat on his back anywhere from

21 four to eight hours a day. (AR 74-75.)

22 Plaintiff also testified that he suffers from knee pain, primarily in his left knee,

23 but he had not obtained treatment at that time. (AR 70-71.)

24 Plaintiff used a CPAP to treat his sleep apnea. Even with the machine, he

25 sleeps only three to four hours a night. During the day, he sometimes naps. (AR 73-

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27 With regard to daily activities, Plaintiff testified that he was unable to carry

28 water or milk. He could carry very light groceries, such as bread. He had difficulty

1 bending down to put on his socks and shoes and required help doing so three to five

2 times a week. Plaintiff was able to shower on his own. He was unable to mow the

3 lawn, ride a bike or golf. Nevertheless, he testified that he did “try to exercise” to

4 maintain health. He was able to “pull the trash cans out.” (AR 77.) Essentially,

5 Plaintiff spent most of his day lying on his back. (AR 76.)

6 At the 2018 hearing, Plaintiff testified that he had suffered from neuropathy in

7 his feet for the prior two to three years. He also experienced cramping in his legs and

8 feet. Plaintiff described his feet as feeling like “they’re on fire” and very tender,

9 burning. According to Plaintiff, he took medication for these problems. He had been

10 trying different shoes and intended to inquire with his pain management nurse or

11 doctor. He began using knee wraps and a cane two months prior to the hearing. (AR

12 22-23, 27.)

13 Plaintiff said that his back had not improved since the prior hearing. Although

14 he still received neurolysis, the pain relief lasted only a few days. (AR 28-30.)

15 Plaintiff had received four to six injections for his left knee pain. Otherwise, his

16 medication remained the same. He explained that he had not seen an orthopedic

17 surgeon for his back because he cannot drive on his medication. (AR 31.)

18 Finally, Plaintiff reiterated that he was able to walk only 15 to 20 minutes. He

19 continued to lie on his back, which helped relieve pain and stress. (AR 28, 31-32.)

20 B. Relevant Law

21 Where, as here, a claimant has presented objective medical evidence of an

22 underlying impairment that could reasonably be expected to produce pain or other

23 symptoms and the ALJ has not made an affirmative finding of malingering, an ALJ

24 must provide specific, clear and convincing reasons before rejecting a claimant’s

25 testimony about the severity of his symptoms. Trevizov. Berryhill, 871 F.3d 664, 678

26 (9th Cir. 2017) (citing Garrison v. Colvin, 759 F.3d 995, 1014-1015 (9th Cir. 2014)).

27 “General findings [regarding a claimant’s credibility] are insufficient; rather, the ALJ

28 must identify what testimony is not credible and what evidence undermines the

1 claimant’s complaints.” Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014)

2 (quoting Lester v. Chater, 81 F.3d 821, 834) (9th Cir. 1995)). The ALJ’s findings

3 “must be sufficiently specific to allow a reviewing court to conclude the adjudicator

4 rejected the claimant’s testimony on permissible grounds and did not arbitrarily

5 discredit a claimant’s testimony regarding pain.” Brown-Hunter v. Colvin, 806 F.3d

6 487, 493 (9th Cir. 2015) (quoting Bunnell v. Sullivan, 947 F.2d 341, 345-346 (9th

7 Cir. 1991) (en banc)).

8 Factors an ALJ may consider include conflicts between the claimant’s

9 testimony and the claimant’s conduct – such as daily activities, work record, or an

10 unexplained failure to pursue or follow treatment – as well as ordinary techniques of

11 credibility evaluation, such as internal contradictions in the claimant’s statements and

12 testimony. See Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014). In addition,

13 although an ALJ may not disregard a claimant’s testimony solely because it is not

14 substantiated by objective medical evidence, the lack of medical evidence is a factor

15 that the ALJ can consider in making a credibility assessment. Burch v. Barnhart, 400

16 F.3d 676, 680-681 (9th Cir. 2005).

17 C. Analysis

18 The ALJ found Plaintiff’s subjective complaints of disabling pain and

19 limitations to be less than fully credible. As discussed below, the ALJ’s decision set

20 out several reasons for that determination. (AR 48-49.)

21 1. Lack of Objective Medical Evidence

22 So long as it is not the only reason for doing so, an ALJ permissibly may rely

23 on a lack of objective medical evidence to discount a claimant’s allegations of

24 disabling pain or symptoms. See Burch, 400 F.3d at 681 (“Although lack of medical

25 evidence cannot form the sole basis for discounting pain testimony, it is a factor the

26 ALJ can consider in his [or her] credibility analysis.”); Rollins v. Massanari, 261

27 F.3d 853, 857 (9th Cir. 2001) (same).

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1 The ALJ summarized Plaintiff’s subjective complaints and concluded that

2 although Plaintiff’s impairments resulted in some functional limitations, the medical

3 evidence did not support the severity of Plaintiff’s allegations. (AR 48.) Indiscussing

4 the medical record, the ALJ began by pointing out Plaintiff’s history of back pain

5 beginning in 2009. Physical examination regularly revealed tenderness and limited

6 range of motion of the thoracic and lumbar spines. While the record included some

7 notations of spasms, a positive straight leg raise test, and abnormal gait (see e.g., 495,

8 550, 775, 788), the ALJ noted that “overall” the treatment records reveal Plaintiff’s

9 gait was mildly abnormal to normal; his straight leg raise test was negative

10 bilaterally; and his strength, sensation and tone were unremarkable or normal. (AR

11 49, see, e.g. AR 396-403, 409, 413, 542-546, 549-550, 555, 560, 567, 572, 577, 582,

12 587, 599, 691-692, 704, 709, 714, 733, 742-743, 738, 764, 768, 785, 1074, 1079.)

13 Treatment for Plaintiff’s back pain included injections, neurolysis, physical therapy,

14 and medication. (AR 396-403, 409, 413, 497, 521, 523, 531, 540, 551, 563-564, 590,

15 629, 695-696, 759, 781.) A 2013 MRI of Plaintiff’s lumbar spine revealed mild

16 scoliosis and mild to moderate degenerative changes. There was no significant

17 central canal or neural foraminal narrowing. A “chain” of small contiguous cysts –

18 probably synovial or ganglion cysts – measuring up to 6mm were found extending

19 along the soft tissues adjacent to the right lateral margin of the right facet at the L4

20 to L5 level. They did not clearly impinge upon the nerve; rather extended posteriorly

21 in the paraspinal musculature. (AR 388-389.)

22 After a sleep study in 2012, Plaintiff was diagnosed with sleep apnea and

23 obstructive sleep apnea syndrome. (AR 348-356.) He was provided with a CPAP

24 machine. In follow-up appointments, Plaintiff reported improved sleep. Plaintiff’s

25 medical providers regularly observed that he presented for his appointments alert,

26 oriented, and in no distress. (AR 50, see AR 395-416, 476, 479, 485, 487.)

27 Next, the ALJ noted Plaintiff’s history of left knee surgery in 1998 and 1999.

28 Since March 2009, Plaintiff had complained of persistent left knee pain, swelling,

1 and popping. Physical examinations revealed tenderness and limited range of motion

2 in the left knee. Plaintiff’s gait was observed to be mildly antalgic. Plaintiff

3 underwent physical therapy and took medication. (AR 50, citing 395-416, 494-688.)

4 A 2012 MRI of Plaintiff’s knee revealed minimal joint effusion and a subtle

5 irregularity in the inferior articular surface of the posterior horn of the medial

6 meniscus; the articular cartilage in the medial compartment was very minimally

7 thinned and irregular; there was slight truncation at the apex of the posterior horn of

8 the lateral meniscus; some thinning and irregularity of the adjacent cartilage along

9 the weight bearing aspect of the lateral tibial plateau with subcortical degenerative

10 reactive/cystic marrow changes. (AR 390-391.) The ALJ noted that Plaintiff has been

11 diagnosed with obesity (having a Body Mass Index above 30) and that Plaintiff’s

12 treating sources regularly advised him to make dietary and lifestyle changes to

13 encourage weight loss. (AR 398, 413, 492, 766, 923-925, 1066.)

14 One of Plaintiff’s treating sources, Beth Brown, PAC, diagnosed him with

15 lumbar spondylosis, chronic pain, and neuropathy. She provided a medical source

16 statement in which she opined that Plaintiff could stand/walk about fifteen to twenty

17 minutes at one time for a total of less than two hour in an eight-hour workday; sit for

18 one to two hours at a time for a total of at least six hours in an eight-hour workday;

19 he was able to lift/carry 10 pounds occasionally and 20 pounds rarely. (AR 1501-

20 1503.)

21 In November 2013, Sohail K. Afra, M.D., performed a consultative evaluation

22 of Plaintiff. Examination revealed tenderness to palpation over the paraspinal areas

23 with limited range of motion. Straight leg raise testing was negative bilaterally.

24 Plaintiff’s knees had normal range of motion of the knees and no edema, but Dr. Afra

25 reported there was pain with full range of motion. Other than the above, Dr. Afra

26 found no joint deformities, crepitus, effusion, tender or trigger points. Plaintiff’s

27 motor strength was normal in all extremities; his muscle bulk and tone were normal;

28 his handgrip strength was normal; his sensation was intact; he was able to walk

1 without difficulties and without an assistive device; and was able to walk on his toes

2 and heels. Dr. Afra diagnosed Plaintiff with sleep apnea, knee pain post-surgery, mild

3 scoliosis, and mild to moderate degenerative changes with no significant central

4 canal or neural foraminal narrowing. Dr. Afra opined that Plaintiff could lift/carry 50

5 pounds occasionally and 25 pounds frequently; stand/walk for six hours in an eight-

6 hour workday; and sit for six hours in an eight-hour workday; frequently bend, kneel,

7 stoop, crawl, crouch, climb ladders, walk on uneven terrain, and work with heights.

8 (AR 418-423.)

9 Beginning in October 2011, Plaintiff received treatment from Amy Jones,

10 M.D. In a letter dated October 13, 2015, Dr. Jones indicated that Plaintiff had a

11 history of chronic low back pain and degenerative disc disease. She noted that images

12 revealed mild scoliosis and degenerative changes in the thoracic and lumbar spine.

13 She further noted that after Plaintiff was evaluated by neurosurgery, it was

14 determined that surgery was not indicated. Plaintiff had received pain management

15 treatment for several years. He was advised not to drive while taking his medication.

16 (AR 756; see also AR 401, 597.)

17 Finally, the ALJ stated that State Agency physician B. Vaghaiwalla, M.D.,

18 reviewed the medical record. Among other things, Dr. Vaghaiwalla opined that

19 Plaintiff could lift and/or carry 50 pounds occasionally and 25 pounds frequently;

20 stand and/or walk for a total of six hours in an eight-hour workday; and sit for a total

21 of six hours in an eight-hour workday. (AR 89-99.)

22 Based upon the foregoing record, the ALJ limited Plaintiff to light work with

23 additional restrictions in stooping, kneeling, crouching, crawling, bending, climbing

24 ladders, working at unprotected heights, and walking on uneven terrain. As set forth

25 above, the medical record reveals minimal findings of significant impairments. With

26 respect to Plaintiff’s back impairment, the ALJ noted that the objective medical

27 evidence regarding Plaintiff’s back revealed mild to moderate degenerative changes

28 with no significant central canal or neural foraminal narrowing. (AR 389.) Most of

1 the treatment notes reveal modest positive findings such as tenderness and limited

2 range of motion. The physical examination by Dr. Afra was essentially

3 unremarkable. Likewise, the MRI of Plaintiff’s knee showed minimal joint effusion,

4 minimal thinning of cartilage, and other irregularities described as slight or subtle.

5 (AR 390-391.) While Plaintiff was diagnosed with sleep apnea, the record does not

6 contain evidence indicating that the condition caused additional symptoms or

7 limitations. Similarly, the record does not include evidence that Plaintiff’s obesity

8 caused any symptoms that resulted in functional limitations.

9 In sum, the ALJ’s characterization of the medical evidence is supported by

10 substantial evidence. It was reasonable to conclude that the minimal findings did not

11 support Plaintiff’s allegations of disabling pain and symptoms, including his

12 assertion that he needed to lie down four to eight hours a day, was unable to lift five

13 pounds, and could only walk or stand for 15 to 20 minutes. Accordingly, the ALJ

14 properly relied upon the medical evidence this as one of several factors in her

15 decision to discount Plaintiff’s subjective complaints. See Batson v. Comm’r of Soc.

16 Sec. Admin., 359 F.3d 1190,1197 (9thCir. 2004) (lack of objective medical evidence

17 to support claimant’s subjective complaints constitutes substantial evidence in

18 support of an ALJ’s adverse credibility determination).

19 2. Symptoms Improved with Treatment

20 Generally, the effectiveness of treatment is a relevant factor in determining the

21 severity of a claimant’s symptoms. 20 C.F.R. § 404.1529(c)(3); see also Tommasetti

22 v. Astrue, 533 F.3d 1035, 1039-1040 (9th Cir. 2008). Accordingly, substantial

23 evidence of effective treatment provides a specific, clear, and convincing reason to

24 discount a claimant’s subjective symptom testimony. See Youngblood v. Berryhill,

25 734 F. App’x 496, 499 (9th Cir. 2018); Tommasetti, 533 F.3d at 1039-1040.

26 Here, the ALJ found that the record revealed Plaintiff’s pain medications had

27 improved his pain and functioning and noted that Plaintiff regularly reported

28 improvement to providers during his pain medication management visits. The ALJ

1 also pointed out that over the course of his treatment, Plaintiff’s gait was generally

2 mildly antalgic to normal, and he was able to walk without the use of an assistive

3 device. In addition, the ALJ stated that Plaintiff’s sleep improved with the use of a

4 CPAP machine. (AR 49.)

5 The ALJ’s findings are supported by substantial evidence. For example,

6 treatment notes consistently reflect that his prescription pain medication reduced

7 Plaintiff’s pain by “> 50%, and is enough to make a real difference,” relief lasted for

8 four to six hours, and the medication caused no side effects. (See AR 548, 570, 575,

9 690, 724, 727.) Treatment notes also reflect that Plaintiff obtained “excellent” relief

10 of his back pain from neurolysis. (AR 494, 497, 551, 626, 695-696.) In October and

11 November 2014, Plaintiff reported excellent (80%) relief from neurolysis, and the

12 relief lasted six months. (AR 537, 540.) In February 2016, Plaintiff again reported

13 excellent relief from neurolysis lasting six months. (AR 766.) With respect to his left

14 knee, Plaintiff received an injection in his left knee in April 2016. (AR 766-767.) In

15 July 2016, he reported “good relief” from the injection, and per his request, received

16 a second injection. (AR 1072.) Finally, the record indicates that the CPAP machine

17 helped Plaintiff’s sleep apnea. (AR 1498.)

18 Accordingly, the ALJ properly relied upon the effectiveness of treatment and

19 medications in controlling symptoms as a reason for discrediting Plaintiff’s

20 testimony regarding the disabling effects of his impairments. See, e.g., Tommasetti,

21 533 F.3d at 1040 (ALJ properly rejected claimant’s subjective complaints where

22 medical records showed that she responded favorably to physical therapy and

23 medication); Abreu v. Astrue, 303 F. App’x 556, 558 (9th Cir. 2008) (ALJ provided

24 legally sufficient reason to reject claimant’s testimony where ALJ observed that,

25 “[f]or the most part, medication regimens appear to be effective in pain control”);

26 Harris v. Berryhill, 2017 WL 5634107, at *3 (C.D. Cal. Nov. 22, 2017) (evidence

27 that plaintiff’s pain and symptoms improved with epidural steroid injections

28 constituted clear and convincing reason to discount plaintiff’s credibility), appeal

1 dismissed, 2018 WL 3391608 (9th Cir. May 11, 2018); Herrera v. Colvin, 2014 WL

2 3572227, at *7 (C.D. Cal. July 21, 2014) (evidence that plaintiff’s pain improved

3 with medication and exercise was clear and convincing reason to discount subjective

4 complaints).

5 3. Daily Activities

6 The ALJ found that Plaintiff had engaged in “a somewhat normal level of daily

7 activity and interaction.” (AR 48.) The ALJ pointed out that Plaintiff’sdaily activities

8 included “dress, bathe, prepare food, clean the house, manage treatment and

9 appointments, travel, and engage in regular exercise.” It was also noted that Plaintiff

10 had recently attended a Cajun festival and stayed at a casino. (AR 49; see also AR

11 592, 597, 1020, 1154, 1196.)

12 Generally, “[e]ngaging in daily activities that are incompatible with the

13 severity of symptoms alleged can support an adverse credibility determination.”

14 Ghanim, 763 F.3d at 1165. Plaintiff contends that his ability to attend appointments,

15 bathe, dress, and go to a casino for some unknown length of time do not reflect an

16 ability to work. (ECF No. 23 at 10-11.) The Commissioner counters that the activities

17 need not be commensurate with full-time work to support the conclusion that his

18 subjective complaints were not credible. Rather, Plaintiff’s activities need only show

19 that he exaggerated his symptoms or limitations. (ECF No. 26 at 8.) The Court agrees

20 and finds that substantial evidence supports the ALJ’s conclusion in this regard –

21 which is another valid reason for discounting Plaintiff’s credibility.

22 Moreover, even assuming that the ALJ erred in relying on Plaintiff’s daily

23 activities, any error was harmless in light of the other legally sufficient reason

24 provided by the ALJ. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)

25 (where one or more reasons supporting ALJ’s credibility analysis are invalid, error

26 is harmless if ALJ provided other valid reasons supported by the record); Carmickle

27 v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162-1163 (9th Cir. 2008) (despite the

28 invalidity of one or more of an ALJ’s stated reasons for discounting a claimant’s

1 || credibility, the court properly may uphold the ALJ’s decision where the ALJ stated

2 || sufficient valid reasons).”

3 ORDER

4 IT IS THEREFORE ORDERED that Judgment be entered affirming the

5 || decision of the Commissioner and dismissing this action with prejudice.

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7 || DATED: 4/30/2020

as,

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10 ALEXANDER F. MacKINNON

UNITED STATES MAGISTRATE JUDGE

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The ALJ also found that Plaintiff’ s subjective complaints were inconsistent with his level of care,

which remained essentially unchanged and was “primarily conservative pain management

25 || treatment.” (AR 48-49.) Plaintiff argues that the ALJ mischaracterized his treatment. (ECF No. 23

at 12-13.) The Commissioner argues that the ALJ properly relied upon the nature of □□□□□□□□□□□

26 || treatment and points to evidence that more aggressive treatment — namely, surgery — was not

indicated. (ECF No. 26 at 6-7.) The Court need not resolve this issue because any error in

27 characterizing Plaintiff’s treatment was harmless in light of the other valid reasons for the decision

2g || to discount Plaintiff's allegations of disabling pain and symptoms.

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