as 27 amended Apr. 9, 1996
How later courts described this case
- as 27 amended Apr. 9, 1996
- upholding “conflict between [plaintiff’s] testimony of 22 subjective complaints and the objective medical evidence in the 23 record” as “specific and substantial” reason undermining 24 statements
- ALJ assesses claimant’s RFC between steps three 20 and four
- rejecting claim of disability when plaintiff 10 failed to meet burden to prove impairment was disabling
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
ROLAND P.,1 ) Case No. EDCV 19-1216-JPR
11
)
Plaintiff, )
12
) MEMORANDUM DECISION AND ORDER
v. ) AFFIRMING COMMISSIONER
13
)
ANDREW M. SAUL, )
14
Commissioner of Social )
Security, )
15
)
Defendant. )
16
)
17
18 I. PROCEEDINGS
19 Plaintiff seeks review of the Commissioner’s final decision
20 denying his application for Social Security supplemental security
21 income benefits (“SSI”). The parties consented to the
22 jurisdiction of the undersigned under 28 U.S.C. § 636(c). The
23 matter is before the Court on the parties’ Joint Submission,
24
1 Plaintiff’s name is partially redacted in line with
25
Federal Rule of Civil Procedure 5.2(c)(2)(B) and the
26 recommendation of the Committee on Court Administration and Case
Management of the Judicial Conference of the United States.
27 Although his first name sometimes appears in the record as
“Ronald,” it is in fact Roland. (See, e.g., AR 194 (Plaintiff or
28 his wife writing his name as “Roland”).)
1
1 filed February 24, 2020, which the Court has taken under
2 submission without oral argument. For the reasons stated below,
3 the Commissioner’s decision is affirmed.
4 II. BACKGROUND
5 Plaintiff was born in 1968. (Administrative Record (“AR”)
6 173.) He completed sixth grade (AR 47), having attended special-
7 education classes since first grade (AR 184). He worked “odd
8 jobs” from 1997 to 2008. (AR 175, 191.) On June 18, 2015, he
9 applied for SSI, alleging disability since January 1, 2008,
10 because of chronic obstructive pulmonary disease, brain tumor,
11 asthma, seizures, and “rage and depression.” (AR 61, 183-84.)
12 After his application and reconsideration of it were denied (AR
13 79-80, 106-11), he requested a hearing before an Administrative
14 Law Judge (AR 113). A hearing was held on May 17, 2018, at which
15 Plaintiff, represented by counsel, testified, as did a vocational
16 expert. (AR 42-60.) In a written decision issued August 21,
17 2018, the ALJ found him not disabled. (AR 26-36.) On May 17,
18 2019, the Appeals Council denied his request for review. (AR 1-
19 3.) This action followed.
20 III. STANDARD OF REVIEW
21 Under 42 U.S.C. § 405(g), a district court may review the
22 Commissioner’s decision to deny benefits. The ALJ’s findings and
23 decision should be upheld if they are free of legal error and
24 supported by substantial evidence based on the record as a whole.
25 See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v.
26 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence
27 means such evidence as a reasonable person might accept as
28 adequate to support a conclusion. Richardson, 402 U.S. at 401;
2
1 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It
2 is “more than a mere scintilla but less than a preponderance.”
3 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec.
4 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). “[W]hatever the
5 meaning of ‘substantial’ in other contexts, the threshold for
6 such evidentiary sufficiency is not high.” Biestek v. Berryhill,
7 139 S. Ct. 1148, 1154 (2019). To determine whether substantial
8 evidence supports a finding, the reviewing court “must review the
9 administrative record as a whole, weighing both the evidence that
10 supports and the evidence that detracts from the Commissioner’s
11 conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir.
12 1998). “If the evidence can reasonably support either affirming
13 or reversing,” the reviewing court “may not substitute its
14 judgment” for the Commissioner’s. Id. at 720-21.
15 IV. THE EVALUATION OF DISABILITY
16 People are “disabled” for purposes of receiving Social
17 Security benefits if they are unable to engage in any substantial
18 gainful activity owing to a physical or mental impairment that is
19 expected to result in death or has lasted, or is expected to
20 last, for a continuous period of at least 12 months. 42 U.S.C.
21 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir.
22 1992).
23 A. The Five-Step Evaluation Process
24 An ALJ follows a five-step sequential evaluation process to
25 assess whether someone is disabled. 20 C.F.R. § 416.920(a)(4);
26 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as
27 amended Apr. 9, 1996). In the first step, the Commissioner must
28 determine whether the claimant is currently engaged in
3
1 substantial gainful activity; if so, the claimant is not disabled
2 and the claim must be denied. § 416.920(a)(4)(i).
3 If the claimant is not engaged in substantial gainful
4 activity, the second step requires the Commissioner to determine
5 whether the claimant has a “severe” impairment or combination of
6 impairments significantly limiting his ability to do basic work
7 activities; if not, a finding of not disabled is made and the
8 claim must be denied. § 416.920(a)(4)(ii) & (c).
9 If the claimant has a “severe” impairment or combination of
10 impairments, the third step requires the Commissioner to
11 determine whether the impairment or combination of impairments
12 meets or equals an impairment in the Listing of Impairments
13 (“Listing”) set forth at 20 C.F.R., part 404, subpart P, appendix
14 1; if so, disability is conclusively presumed and benefits are
15 awarded. § 416.920(a)(4)(iii) & (d).
16 Before proceeding to step four, the ALJ must determine the
17 claimant’s residual functional capacity (“RFC”).2
18 § 416.920(e); see also Laborin v. Berryhill, 867 F.3d 1151, 1153
19 (9th Cir. 2017) (ALJ assesses claimant’s RFC between steps three
20 and four). The fourth step requires that the ALJ determine
21 whether the claimant’s RFC is sufficient to perform past relevant
22 work. § 416.920(a)(4)(iv). When the claimant has no past
23 relevant work, the Commissioner then bears the burden of
24 establishing that he is not disabled because he can perform other
25 substantial gainful work in the national economy, the fifth and
26
27 2 RFC is what a claimant can do despite existing exertional
and nonexertional limitations. § 416.945(a)(1); see Cooper v.
28 Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989).
4
1 final step of the analysis. §§ 416.920(a)(4)(v), 416.960(c)(2);
2 Drouin, 966 F.2d at 1257.
3 B. The ALJ’s Application of the Five-Step Process
4 At step one, the ALJ found that Plaintiff had not engaged in
5 substantial gainful activity since June 18, 2015, the application
6 date. (AR 28.) At step two, he determined that he had the
7 severe impairments of “schizoid personality disorder, bipolar
8 disorder, history of a seizure disorder, chronic obstructive
9 pulmonary disease (COPD), and obstructive sleep apnea.” (Id.)
10 At step three, he concluded that Plaintiff’s impairments did
11 not meet or equal any of the impairments in the Listing. (AR 29-
12 30.) At step four, he found that Plaintiff had the RFC to
13 perform light work with additional limitations:
14 Can sit about six hours total and can stand and/or walk
15 about six hours total in an eight-hour workday with
16 normal breaks. Can never climb ladders, ropes, or
17 scaffolds, but can frequently climb ramps and stairs.
18 Can frequently balance, kneel, stoop, crouch, and crawl.
19 Can never be exposed to concentrated levels of pulmonary
20 irritants. Can never operate a motor vehicle as a work
21 requirement. Can not [sic] work around unprotected
22 heights, moving machinery, or large bodies of water. Can
23 perform simple, routine tasks that can be learned in 30
24 days or less with an SVP of 1 or 2, requiring visual
25 demonstration learning. Can tolerate occasional changes
26 to work place setting or procedures. Can have only
27 occasional interaction with coworkers, supervisors, and
28 the public.
5
1 (AR at 30-31.) Because Plaintiff had no past relevant work, the
2 ALJ continued to step five. (AR 34.)
3 At that step, considering Plaintiff’s age, education, work
4 experience, and RFC and the VE’s testimony, he found that
5 Plaintiff could perform several jobs existing in significant
6 numbers in the national economy. (AR 34-35.) Accordingly, he
7 found him not disabled. (AR 35.)
8 V. DISCUSSION3
9 Plaintiff contends that the ALJ improperly rejected his
10 “testimony concerning his subjective symptoms by failing to offer
11 any specific, clear and convincing reasons supported by
12 substantial evidence in the record.” (J. Stip. at 3.) He
13 specifically challenges only the ALJ’s assessment of his
14 statements concerning his respiratory ailments. (See id. at 4-6,
15 12-13.) For the reasons discussed below, the ALJ did not err.
16
17
18
19
20
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 43-60,
25
248-50); Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (as
26 amended) (plaintiff forfeits issues not raised before ALJ or
Appeals Council); see also Kabani & Co. v. SEC, 733 F. App’x 918,
27 919 (9th Cir. 2018) (rejecting Lucia challenge because plaintiff
did not raise it during administrative proceedings), cert.
28 denied, 139 S. Ct. 2013 (2019).
6
1 The ALJ Gave Clear and Convincing Reasons to Partially
2 Discount Plaintiff’s Subjective Symptom Statements
3 A. Relevant background4
4 1. Plaintiff’s treating doctors
5 Plaintiff was treated from June 23, 2014, through November
6 20, 2017, by primary-care physician Vivek Gill. (AR 251-60, 373-
7 414.) Progress notes are mostly illegible but indicate that Dr.
8 Gill prescribed Depakote ER5 on June 23, 2014 (AR 255), examined
9 Plaintiff prehydrocelectomy6 on February 16, 2015 (AR 253, 295-
10 96), noted complaints of breathing problems on June 30, 2015 (AR
11 377), and referred him for a CT scan on January 25, 2017, after
12 finding a “slightly enlarged lymph node in [his] che[s]t” (AR
13 400; see also id. at 412-14). On November 21, 2017, Plaintiff’s
14 chief complaint was “[c]heck blood pressure,” and Dr. Gill
15 reported a history of “[grand mal] seizures; [m]ild compression T
16 7, 9, 10; COPD; 6 MM Frontoparietal Meningioma;7 COPD with
17
18 4 Because Plaintiff challenges only the ALJ’s findings
concerning his respiratory-impairment symptoms, the Court limits
19 its discussion primarily to those facts.
20 5 “Depakote ER . . . is indicated for the treatment of acute
manic or mixed episodes associated with bipolar disorder, with or
21
without psychotic features.” Depakote ER, U.S. Nat’l Libr. of
22 Med., https://dailymed.nlm.nih.gov/dailymed/drugInfo (type
“Depakote ER”; then follow first Depakote ER hyperlink) (last
23 visited May 18, 2020).
24 6 “A hydrocelectomy is a surgical procedure to repair a
hydrocele, which is a buildup of fluid around a testicle.”
25
Hydrocelectomy: What You Need to Know, Healthline, https://
26 www.healthline.com/health/hydrocelectomy (last visited May 18,
2020).
27
7 “A meningioma is a tumor that arises from a layer of
28 (continued...)
7
1 Asthma; [and] L. Hilar L. nodes.”8 (AR 374.)
2 Plaintiff’s CT scan indicated “[e]nlarged adenoids, evaluate
3 for lymphoproliferative disease.”9 (AR 389.) The scan found
4 “[n]o pathologically enlarged lymph nodes,” and as to Plaintiff’s
5 lungs, airways, and pleura, the “trachea and central airways
6 [were] . . . clear,” and there was “approved scarring” in the
7 left upper and lower lobes, “stable linear . . . scarring/
8 nodularity” in the lateral right lower and left upper lobes,
9 “[n]o new or suspicious pulmonary nodules,” “mild emphysema,” and
10 “bullous disease10 . . . similar to the prior exam.” (Id.) The
11
12 7 (...continued)
13 tissue (the meninges) that covers the brain and spine. . . .
Most are considered ‘benign’ because they are slow-growing with
14 low potential to spread.” Meningioma Brain Tumor, UCLA Health,
https://www.uclahealth.org/neurosurgery/meningioma-brain-tumor
15 (last visited May 18, 2020).
16 8 “Hilar lymph nodes are those that are immediately adjacent
to the main-stem bronchus and hilar vessels, including the
17
proximal portions of the pulmonary veins and main pulmonary
18 artery.” Ahmed H. El-Sherief et al., Lymph Node Map: Radiologic
Review with CT Illustration, 6 RadioGraphics 1680, 1684 (Oct.
19 2014), available at https://pubs.rsna.org/doi/pdf/10.1148/
rg.346130097.
20
9 In lymphoproliferative disease, “cells of the lymphatic
21
system grow excessively”; it is often treated like cancer.
22 Lymphoproliferative Disorder, Nat’l Cancer Inst., https://
www.cancer.gov/publications/dictionaries/cancer-terms/def/
23 lymphoproliferative-disorder (last visited May 18, 2020).
24 10 “[A] bulla is an air-filled space of > 1 cm in diameter
within the lung which has developed because of emphysematous
25
destruction of the lung parenchyma. . . . Eighty percent of
26 patients presenting with bullae have associated pulmonary
emphysema, [which] is referred to as bullous emphysema. It is a
27 subset of chronic obstructive pulmonary disease.” Bullous
Emphysema, Nat’l Ctr. for Biotechnology Info., https://
28 (continued...)
8
1 radiologist found the “newly prominent . . . lymph nodes . . .
2 indeterminate” and recommended a “[s]hort-term follow-up CT chest
3 . . . in 3 months.” (AR 391.) That follow-up scan found
4 Plaintiff’s lung changes “stable” and “benign.” (AR 387.)
5 Dr. Gill referred Plaintiff for a neurology history and
6 physical, which was performed by neurologist Raj Karnani on June
7 10, 2014. (AR 342.) Dr. Karnani found Plaintiff normal in all
8 areas and described him as “[a]lert and oriented.” (Id.)
9 Plaintiff was admitted to the hospital on August 29, 2014,
10 with “flu-like symptoms,” then discharged the next day; his
11 diagnosis was acute bronchitis. (AR 267-76.) On October 7,
12 2014, he saw neurologist Purnima Thakran for his seizures. (AR
13 327-29.) They had begun approximately four years prior and were
14 “mild,” with a “duration [of] 3-4 minutes.” (AR 327.) They were
15 aggravated by a “brain tumor,” and associated symptoms were “an
16 aura preceeding [sic] the seizure, lightheadedness, confusion,
17 [and] nausea.” (Id.) Dr. Thakran noted that Plaintiff’s
18 [o]verall condition is variable. The patient was on
19 Dilantin initially which worked well for seizure control
20 but caused gum hyperplasia and patient lost all his
21 teeth. Now on Depakote but tolerating poorly due to
22 extreme mood swings, anger.
23 (Id.) She assessed him with “[l]ocalization-related epilepsy
24 with complex partial seizures with intractable epilepsy” and
25
26
27 10 (...continued)
www.ncbi.nlm.nih.gov/books/NBK537243/ (last visited May 18,
28 2020).
9
1 meningioma and prescribed oxcarbazepine,11 continued Depakote,
2 ordered an EEG, and planned to “taper Depakote next visit.” (AR
3 328.) She continued him on Ventolin HFA Aerosol Solution12 and
4 Qvar Aerosol Solution13 daily. (Id.) As to injury prevention,
5 Dr. Thakran recommended “no driving, climbing to heights,
6 operating machinery, swimming alone or other hazardous activity.”
7 (AR 329.)
8 The EEG was performed on October 31, 2014, and showed
9 “[n]ormal awake/asleep.” (AR 339.) Because “a routine normal
10 EEG does not preclude a diagnosis of epilepsy,” “[c]linical
11 correlation [was] recommended.” (Id.) On August 25, 2015,
12 another EEG was recorded, with a clinical impression of “[n]ormal
13 72 hour ambulatory EEG.” (AR 337.) At Plaintiff’s EEG follow-up
14 appointment, Dr. Thakran noted, “[i]mproving seizures.” (AR
15 335.)
16 At her recommendation, Plaintiff had a brain MRI on August
17
18
11 Oxcarbazepine tablets are “indicated for use as
19 monotherapy or adjunctive therapy in the treatment of partial-
onset seizures in adults.” Oxcarbazepine, U.S. Nat’l Libr. of
20 Med., https://dailymed.nlm.nih.gov/dailymed/drugInfo (type
“Oxcarbazepine”; then follow first hyperlink for Oxcarbazepine)
21
(last visited May 18, 2020).
22
12 “Ventolin HFA Inhalation Aerosol is indicated for the
23 treatment or prevention of bronchospasm in patients aged 4 years
and older with reversible obstructive airway disease.” Ventolin
24 HFA, U.S. Nat’l Libr. of Med., https://dailymed.nlm.nih.gov/
dailymed/drugInfo (type “Ventolin HFA”; then follow first
25
hyperlink for Ventolin HFA (albuterol sulfate) aerosol, metered)
26 (last visited May 18, 2020).
27 13 “Qvar is used to prevent asthma attacks in adults and
children who are at least 5 years old.” Qvar, Drugs.com,
28 https://www.drugs.com/mtm/qvar.html (last visited May 18, 2020).
10
1 31, 2016. (AR 357, 365-66.) It found a “[v]ery mild interval
2 increase in size of a small . . . mass which likely represents a
3 meningioma.” (AR 366.) It “[a]gain identified extensive
4 bilateral mastoid air cell disease” and “[e]nlarged adenoids with
5 mild cystic changes . . . likely secondary to reactive lymphoid
6 hypertrophy,”14 but clinical correlation was suggested because
7 “lymphoma cannot be entirely excluded.” (Id.) At Plaintiff’s
8 next three appointments, in 2017, he reported no further
9 seizures, and Dr. Thakran recommended continued observation,
10 “serial MRI” for the brain tumor, and refill of medication for
11 seizures. (AR 344-51.)
12 Dr. Robert Tsou, an ear, nose, and throat specialist,
13 treated Plaintiff for “bilateral nasal airway obstruction” and
14 “hearing loss” throughout 2017 and into 2018. (AR 427-43.) He
15 excised a nasal mass and inserted tubes in his ears. (AR 435-
16 37.) His condition improved but congestion persisted, “likely
17 . . . due to allergies.” (AR 439.) Attempts to remove the tubes
18 resulted “in violent reaction of discomfort,” so Dr. Tsou allowed
19 “time for the PE tube[s] to extrude on their own.” (AR 441.)
20 Four months later, Plaintiff was “having difficulty hearing
21 again” and had “recurrent atrial congestion.” (AR 442.)
22 On February 28, March 21, and April 12, 2018, pulmonologist
23 Anurag Sahai examined Plaintiff and tested his lung capacity,
24
14 Lymphoid hypertrophy “is an increase in the number of
25
normal cells (called lymphocytes) that are contained in lymph
26 nodes,” most often occurring “when there is an infection with
bacteria, viruses, or other types of germs and is part of the
27 body’s reaction to the infection.” Lymphoid hyperplasia, U.S.
Nat’l Libr. of Med., https://medlineplus.gov/ency/article/
28 001320.htm (last visited May 18, 2020).
11
1 spirometry, and diffusing capacity. (AR 452-59.) Plaintiff’s
2 reasons for seeing him were COPD, obstructive sleep apnea, and
3 mediastinal adenopathy.15 (AR 452, 455.) As to chest and lungs
4 and cardiovascular exams, Dr. Sahai found Plaintiff “normal” but
5 with “prolonged expiration — both lung fields.” (AR 453, 456.)
6 These results were interpreted as a “severe obstructive lung
7 defect”:
8 The airway obstruction is confirmed by the decrease in
9 flow rate at peak flow and flow at 50% and 75% of the
10 flow volume curve. EVC changed by 8%, FEV1 changed by
11 8%. This is interpreted as an insignificant response to
12 bronchodilator.
13 (AR 458.) Dr. Sahai performed a spirometry on March 21, 2018,
14 indicating a FEV1 of 2.29 before bronchodilation and 2.48 after,
15 and an FVC of 5.74 before bronchodilation and 6.17 after.16
16 (AR 459.) Handwritten notes reflect “moderate obstruction
17 defect,” and “diffusion capacity normal.” (AR 458-59.)
18
19
15 Adenopathy means “[l]arge or swollen lymph nodes.” Med.
20 Definition of Adenopathy, MedicineNet, https://
www.medicinenet.com/script/main/art.asp?articlekey=22429 (last
21
visited May 18, 2020).
22
16 The pulmonary function test, most commonly spirometry,
23 measures ventilation of the lungs. See 20 C.F.R. pt. 404, subpt.
P, app. 1, § 3.00(D)(4) (2020). Normal results vary from person
24 to person based on age, race, height, and gender. Spirometry
Normal Values and How to Read Your Results, Healthline, https://
25
www.healthline.com/health/spirometry#results (last visited May
26 18, 2020). For Caucasian men aged 50 and 68 inches tall, like
Plaintiff, the “lower limit of normal” for FVC is 3.85 and for
27 FEV1 2.93. Spirometry Reference Value Calculator, Nat’l Inst.
for Occupational Safety & Health, https://www.cdc.gov/niosh/
28 topics/spirometry/refcalculator.html (last visited May 18, 2020).
12
1 2. Examiners and reviewers
2 Dr. Seung Ha Lim, an internist, examined Plaintiff on
3 November 24, 2015, at Defendant’s request. (AR 317-20.) He
4 described Plaintiff’s chief complaints as “[h]istory of seizures
5 and asthma.” (AR 317.) Dr. Lim performed a pulmonary function
6 test documenting FEV1 of 2.32 before bronchodilation and 2.50
7 after, and an FVC of 4.56 before bronchodilation and 4.27 after.
8 (AR 312.) Dr. Lim interpreted these findings as “severe
9 obstructive lung disease,” noting that it “improved [with]
10 bronchodilation.” (Id.) After conducting a full examination of
11 Plaintiff, he provided the following functional assessment:
12 Based on available medical information, the patient, in
13 my opinion, is restricted to standing and/or walking
14 about 6 hours in an eight-hour workday with appropriate
15 breaks. The patient would be able to sit for 6 hours in
16 an eight-hour day with appropriate breaks. The patient
17 would be able to lift and/or carry 20 pounds occasionally
18 and 10 pounds frequently. The patient should avoid
19 unprotected heights and handling of dangerous machinery.
20 The patient has environmental limitations due to a
21 history of asthma.
22 (AR 320.)
23 A pulmonary function test was performed again on June 2,
24 2018, reflecting an FEV1 of 1.61 before bronchodilation and 1.51
25 after. (AR 446.) It showed an FVC of 3.43 before
26 bronchodilation and 3.36 after. (Id.) Interpretation notes
27 indicate “severe obstruction.” (Id.)
28 Dr. Gideon Lowe, III, an ophthalmologist (see AR 81 (showing
13
1 signature code of 28)); Soc. Sec. Admin., Program Operations
2 Manual System (POMS) DI 24501.004 (May 5, 2015), https://
3 secure.ssa.gov/apps10/poms.nsf/lnx/0424501004 (signature code 28
4 indicates ophthalmology), reviewed the files on February 18,
5 2016, and rated Plaintiff’s exertional limitations similarly to
6 Dr. Lim. (AR 74-76.) He further noted that Plaintiff had
7 unlimited ability to “push and/or pull (including operation of
8 hand and/or foot controls)” and was limited to occasionally
9 “climbing ramps/stairs,” “stooping,” “kneeling,” “crouching,” and
10 “crawling.” (AR 75.) He found limitations in exposure to
11 unprotected heights and environmental factors because of
12 Plaintiff’s seizure disorder and asthma. (AR 75-76.) On
13 reconsideration, Dr. E. Cooper concurred with the limitations
14 identified by Dr. Lowe.17 (AR 91-93.)
15 Psychiatrist R. Singh reviewed Dr. Thakran’s opinion on
16 reconsideration and gave it “great weight.”18 (AR 90.) As for
17 Plaintiff’s subjective symptoms, he opined that
18 [b]ased on the statements of allegations compared to the
19 enclosed objective evidence, the statements appear
20 partially credible. The impairments could be expected to
21 produce some of the claimant’s stated symptoms but MER
22 and ADLs do[] not support the level of severity of the
23 claimant’s stated limitations.
24
17 Dr. Cooper’s area of specialty is not apparent from the
25
record.
26
18 Dr. Singh used a signature code of 37 (see AR 98),
27 indicating a psychiatry specialty, see Soc. Sec. Admin., Program
Operations Manual System (POMS) DI 24501.004 (May 5, 2015),
28 https://secure.ssa.gov/apps10/poms.nsf/lnx/0424501004.
14
1 (Id.)
2 3. Plaintiff’s statements
3 Plaintiff described in his function report how his
4 “illnesses, injuries, or conditions” limited his ability to work:
5 Seizures, confusion, rage, cannot go into sun or white
6 light for extended time without throwing up, no control
7 over function[.] Difficulty seeing, dehydration,
8 fainting[.] Cannot work with people getting violent,
9 upset, anxiety, panic attacks[.]
10 (AR 199.) On a typical day he had coffee, watched television,
11 and tried to work in the yard if he could. (AR 200.) His sleep
12 was affected because he could not “stop thoughts and voices.”
13 (Id.) His ability to perform personal care was not limited; he
14 prepared “tv dinners” daily and mowed a small yard, with stops
15 for dizziness. (AR 200-01.) He needed reminders to take
16 medicines and do chores. (AR 201.) He argued and fought with
17 others and had “no social life.” (AR 204.)
18 At Plaintiff’s hearing, he described why he believed he was
19 unable to work:
20 I can’t breathe at all. And I have a hard time being
21 around people. That’s pretty much it. My hands are on
22 fire all the time, the medicine. I don’t sleep much at
23 all. And the little bit I do sleep, when I wake up from
24 it, I can’t breathe. It takes me an hour, hour and a
25 half of choking and puking to get my lungs back to
26 breathing. That’s pretty much it.
27 (AR 49-50.) He couldn’t do much housework because dust bothered
28 him, and he had to take breaks when showering or shaving because
15
1 he couldn’t breathe. (AR 50-51.) He left the house only to go
2 to doctor’s appointments because “[o]ther people are safer.” (AR
3 51.)
4 4. The ALJ’s decision
5 The ALJ found that Plaintiff’s “medically determinable
6 impairments could reasonably be expected to cause the alleged
7 symptoms; however, [his] statements concerning the intensity,
8 persistence, and limiting effects of these symptoms are not
9 entirely consistent with the medical evidence and other evidence
10 in the record.” (AR 31.) Despite a history of respiratory
11 difficulties, he noted, “x-rays of his chest and lungs were
12 essentially normal.” (Id.) While treatment records documented
13 diagnoses of “asthma, COPD, as well as a newly-diagnosed brain
14 tumor,” “physical examinations were within normal limits, with no
15 documented abnormalities.” (Id.) He noted Plaintiff’s history
16 of seizures but observed that the condition appeared “to be
17 manageable with medications.” (Id.)
18 Relying on Dr. Lim’s November 2015 consulting opinion, to
19 which he gave “great weight” (AR 33), the ALJ recognized
20 documented complaints of “seizure disorder and asthma” but noted
21 that overall Plaintiff had an “unremarkable objective
22 presentation.” (AR 32.) After a change in medication, he had
23 not had any seizures for several months. (Id.) He “reported
24 daily asthma attacks” and an “increased expiratory phase of
25 breathing on auscultation,” “consistent with COPD,” but Dr. Lim
26 nonetheless opined that he could “stand or walk for six hours
27 total and sit for six hours total in an eight-hour workday,”
28 “lift 20 pounds occasionally and 10 pounds frequently,” and
16
1 should “avoid unprotected heights and handling of dangerous
2 machinery, as well as respiratory irritants due to his asthma,”
3 which was inconsistent with Plaintiff’s claimed limitations.
4 (Id.)
5 The ALJ noted the results of pulmonary function tests in
6 November 2015 and March and June 2018, showing FEVI and FVC
7 levels before and after bronchodilation. (Id.) A CT of
8 Plaintiff’s chest in December 2017 “showed stable lung findings
9 consistent with COPD,” and a CT of his sinuses “showed no
10 evidence of sinusitis, but did note a septal deviation.” (Id.)
11 He had a “normal awake/sleep EEG.” (Id.)
12 The ALJ found Plaintiff’s allegations “somewhat out-of-
13 proportion to the medical findings.” (AR 33.) They were “not
14 fully consistent” with the “objective medical evidence and the
15 record as a whole.” (Id.) Although the medical records
16 documented asthma and COPD, they reflected “only mild objective
17 findings.” (Id.) Plaintiff had “a normal ambulatory EEG, he
18 could manage his asthma with medications, and consistently
19 exhibited respiratory test values within the mild to moderate
20 range.” (Id.) Construing the evidence in the light most
21 favorable to him, the ALJ found Plaintiff capable of “light
22 exertion” with postural and environmental limitations. (Id.)
23 B. Applicable law
24 An ALJ’s assessment of a claimant’s allegations concerning
25 the severity of his symptoms is entitled to “great weight.”
26 Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989) (as amended)
27 (citation omitted); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir.
28 1985) (as amended Feb. 24, 1986). “[T]he ALJ is not ‘required to
17
1 believe every allegation of disabling pain, or else disability
2 benefits would be available for the asking, a result plainly
3 contrary to 42 U.S.C. § 423(d)(5)(A).’” Molina v. Astrue, 674
4 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair v. Bowen, 885 F.2d
5 597, 603 (9th Cir. 1989)).
6 In evaluating a claimant’s subjective symptom testimony, the
7 ALJ engages in a two-step analysis. See Lingenfelter, 504 F.3d
8 at 1035-36; see also SSR 16-3p, 2016 WL 1119029, at *3 (Mar. 16,
9 2016). “First, the ALJ must determine whether the claimant has
10 presented objective medical evidence of an underlying impairment
11 [that] could reasonably be expected to produce the pain or other
12 symptoms alleged.” Lingenfelter, 504 F.3d at 1036 (citation
13 omitted). If such objective medical evidence exists, the ALJ may
14 not reject a claimant’s testimony “simply because there is no
15 showing that the impairment can reasonably produce the degree of
16 symptom alleged.” Id. (citation omitted and emphasis in
17 original).
18 If the claimant meets the first test, the ALJ may discount
19 the claimant’s subjective symptom testimony only if he makes
20 specific findings that support the conclusion. See Berry v.
21 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). Absent a finding or
22 affirmative evidence of malingering, the ALJ must provide a
23 “clear and convincing” reason for rejecting the claimant’s
24 testimony. Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir.
25 2015) (as amended) (citing Lingenfelter, 504 F.3d at 1036);
26 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th
27 Cir. 2014). The ALJ may consider, among other factors, the
28 claimant’s (1) reputation for truthfulness, prior inconsistent
18
1 statements, and other testimony that appears less than candid;
2 (2) unexplained or inadequately explained failure to seek
3 treatment or to follow a prescribed course of treatment; (3)
4 daily activities; (4) work record; and (5) physicians’ and third
5 parties’ statements. Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d
6 996, 1006 (9th Cir. 2015) (as amended); Thomas v. Barnhart, 278
7 F.3d 947, 958-59 (9th Cir. 2002). If the ALJ’s evaluation of a
8 plaintiff’s alleged symptoms is supported by substantial evidence
9 in the record, the reviewing court “may not engage in second-
10 guessing.” Thomas, 278 F.3d at 959.
11 C. Analysis
12 The ALJ provided clear and convincing reasons supported by
13 substantial evidence for partially discounting Plaintiff’s
14 subjective symptom statements. Initially, the ALJ properly
15 concluded that Plaintiff’s subjective complaints were
16 inconsistent with the objective medical evidence (AR 31), which
17 is a “sufficient basis” for rejecting a claimant’s subjective
18 symptom testimony. Carmickle v. Comm’r., Soc. Sec. Admin., 533
19 F.3d 1155, 1161 (9th Cir. 2008) (citation omitted); see also
20 Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir.
21 1999) (upholding “conflict between [plaintiff’s] testimony of
22 subjective complaints and the objective medical evidence in the
23 record” as “specific and substantial” reason undermining
24 statements). Specifically, the ALJ cited to “essentially normal”
25 x-rays of his chest and lungs, physical examinations “within
26 normal limits, with no documented abnormalities,” inconsistent
27 reporting of seizures, and “normal awake/sleep EEG.” (AR 31-32.)
28 Plaintiff challenges the ALJ’s evaluation of the medical
19
1 evidence, arguing that three pulmonary tests indicated “severe
2 obstructive lung disease” and supported his symptom statements.
3 (J. Stip. at 4; see also id. at 13 (noting doctors’ notations of
4 obstructive lung defect).) But as the ALJ recognized and
5 Plaintiff has not challenged, Plaintiff’s respiratory ailments
6 were not restrictive enough to meet a Listing (see AR 29), and a
7 “severe” impairment does not necessarily imply a disabling
8 functional limitation. See Matthews v. Shalala, 10 F.3d 678, 680
9 (9th Cir. 1993) (rejecting claim of disability when plaintiff
10 failed to meet burden to prove impairment was disabling). The
11 ALJ acknowledged that treatment records showed a “history of
12 respiratory difficulties,” asthma, and COPD but nevertheless
13 recognized that objective medical tests and findings indicated
14 “normal” chest and lung x-rays, physical examinations, and
15 “awake/sleep EEG.” See Stoffan v. Berryhill, No. 16-CV-1654-SKO,
16 2018 WL 1335392, at *10 (E.D. Cal. Mar. 15, 2018) (no disability
17 when plaintiff with syncope, COPD, depression, and chronic pain
18 “was in no acute distress, appeared healthy, had good air
19 movement, and ambulated normally”). As the ALJ noted (AR 29, 31-
20 32), Plaintiff’s mild to moderate FVC and FEV1 test results were
21 inconsistent with his claim that he couldn’t “breathe at all”
22 (AR 49, 51). And his normal sleep EEG contradicted his assertion
23 that he couldn’t sleep “much at all.” (AR 49-50.)
24 Second, medical records showed that Plaintiff’s seizures,
25 COPD, and asthma were “manageable,” “stable,” and controlled with
26 medications, as the ALJ found. (AR 31, 33.) “Impairments that
27 can be controlled effectively with medication are not disabling
28 for the purpose of determining eligibility for SSI benefits.”
20
1 Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th
2 Cir. 2006); see also Danny L. R. II v. Saul, No. SA CV 19-498-
3 PLA, 2020 WL 264583, at *10 (C.D. Cal. Jan. 17, 2020) (ALJ’s
4 finding that pain medication provided relief from chronic pain
5 syndrome and mental-health medications controlled anxiety and
6 depression was clear and convincing reason to discount
7 plaintiff’s subjective symptom testimony). Indeed, Plaintiff’s
8 “auras” lessened after starting seizure medication in October
9 2014 (see AR 327-36), and he was seizure free at all three
10 appointments in 2017 (AR 344-51), with normal awake/asleep and
11 ambulatory EEGs (AR 337, 339). And his COPD while on medication
12 was “mild,” and he had “normal” lung diffusion capacity. (AR
13 455, 458.) Contrary to Plaintiff’s contention raised for the
14 first time in his reply (see J. Stip. at 13), the ALJ’s finding
15 that many of his conditions were manageable with medication was
16 amply supported by the record.
17 Finally, the ALJ relied on examining and reviewing doctors’
18 opinions that Plaintiff could work with appropriate limitations
19 to discount his statements to the contrary. (See AR 32-34.)
20 This is a separate, independent reason from inconsistency with
21 the objective medical evidence, see § 416.929(c)(4); Molina, 674
22 F.3d at 1113 (examining doctor’s opinion that condition “was not
23 severe” and could be “control[led]” was “specific, clear, and
24 convincing reason[]” to reject subjective symptom testimony);
25 Moncada v. Chater, 60 F.3d 521, 524 (9th Cir. 1995) (per curiam)
26 (examining doctor’s assessment that plaintiff “could do sedentary
27 work” was “specific” and “valid” reason to reject his “claims of
28 excessive pain”), contrary to Plaintiff’s implication (see J.
21
1 Stip. at 5-6). The ALJ gave “great weight” to the opinions of
2 Dr. Lim and the “State agency doctors and psychologists.” (AR
3 33-34.) And he cited specific portions of treatment notes and
4 data from treating physicians Gill’s and Thakran’s records to
5 support his findings and to partially discount Plaintiff’s
6 statements. (See AR 29, 31-32.) Further, Dr. Lim’s opinion was
7 consistent with the RFC. Plaintiff never addresses the ALJ’s
8 reliance on the doctors’ opinions as a separate reason to
9 discount his statements.
10 The ALJ properly considered the objective medical evidence,
11 the doctors’ opinions, and Plaintiff’s ability to control his
12 symptoms with treatment in partially discounting his statements
13 about them. (AR 32.) In doing so, he provided clear and
14 convincing reasons and did “not arbitrarily discredit”
15 Plaintiff’s testimony. Orteza v. Shalala, 50 F.3d 748, 750 (9th
16 Cir. 1995).
17 The ALJ did not err, and remand is not warranted.
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CONCLUSION
2 Consistent with the foregoing and pursuant to sentence four
3 |/of 42 U.S.C. § 405(g),1? IT IS ORDERED that judgment be entered
4 || DENYING Plaintiff’s request for remand, AFFIRMING the
5 | Commissioner’s decision, and DISMISSING this action with
6 || prejudice.
7
8 || DATED: May 20, 2020 fo brobate-
JE ROSENBLUTH
9 U.S. Magistrate Judge
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25 | -—
26 19 This 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.”
23