ALJ properly 26 relied on past frequency of treatment in assessing symptoms’ 27 effect on ability to work
How later courts described this case
- ALJ properly 26 relied on past frequency of treatment in assessing symptoms’ 27 effect on ability to work
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
NATOSHA S.,1 ) Case No. CV 19-5134-JPR
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)
Plaintiff, )
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) MEMORANDUM DECISION AND ORDER
v. ) AFFIRMING COMMISSIONER
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ANDREW M. SAUL, )
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Commissioner of Social )
Security, )
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Defendant. )
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17 I. PROCEEDINGS
18 Plaintiff seeks review of the Commissioner’s final decision
19 denying her applications for Social Security disability insurance
20 benefits (“DIB”) and supplemental security income benefits
21 (“SSI”). The parties consented to the jurisdiction of the
22 undersigned under 28 U.S.C. § 636(c). The matter is before the
23 Court on the parties’ Joint Stipulation, filed July 30, 2020,
24 which the Court has taken under submission without oral argument.
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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 For the reasons discussed below, the Commissioner’s decision is
2 affirmed.
3 II. BACKGROUND
4 Plaintiff was born in 1975. (Administrative Record (“AR”)
5 54, 66, 157, 161.) She completed 12th grade (AR 188) and worked
6 as a court clerk, in-home caregiver, and bookkeeper (AR 177,
7 189).
8 On November 5 and 19, 2013, Plaintiff applied for DIB and
9 SSI, respectively, alleging that she had been unable to work
10 since March 6, 2013, because of lower-back pain, arthritis,
11 depression, anxiety, and a spinal tear. (AR 54-55, 66-67, 157-
12 66, 187.) After her applications were denied (AR 78-79, 82-85,
13 87-90), she requested a hearing before an Administrative Law
14 Judge (AR 92-94). A hearing was held on March 12, 2015, at which
15 Plaintiff testified, as did a vocational expert and two medical
16 experts. (See AR 29-53.) In a written decision issued April 23,
17 2015, the ALJ found Plaintiff not disabled. (AR 15-25.) She
18 sought Appeals Council review (AR 9-10), which was denied on
19 November 15, 2016 (AR 1-6).
20 Plaintiff appealed (AR 1578-80), and on May 22, 2018, this
21 Court reversed and remanded for further administrative
22 proceedings (AR 1603-16). On January 22, 2019, an ALJ conducted
23 another hearing, at which Plaintiff, who was again represented by
24 counsel, and a VE and an ME again testified. (See AR 1530-53.)
25 In a written decision dated April 4, 2019, the ALJ again found
26 Plaintiff not disabled. (AR 1373.) This action followed.
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1 III. STANDARD OF REVIEW
2 Under 42 U.S.C. § 405(g), a district court may review the
3 Commissioner’s decision to deny benefits. The ALJ’s findings and
4 decision should be upheld if they are free of legal error and
5 supported by substantial evidence based on the record as a whole.
6 See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v.
7 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence
8 means such evidence as a reasonable person might accept as
9 adequate to support a conclusion. Richardson, 402 U.S. at 401;
10 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It
11 is “more than a mere scintilla, but less than a preponderance.”
12 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec.
13 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). “[W]hatever the
14 meaning of ‘substantial’ in other contexts, the threshold for
15 such evidentiary sufficiency is not high.” Biestek v. Berryhill,
16 139 S. Ct. 1148, 1154 (2019). To determine whether substantial
17 evidence supports a finding, the reviewing court “must review the
18 administrative record as a whole, weighing both the evidence that
19 supports and the evidence that detracts from the Commissioner’s
20 conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir.
21 1998). “If the evidence can reasonably support either affirming
22 or reversing,” the reviewing court “may not substitute its
23 judgment” for the Commissioner’s. Id. at 720-21.
24 IV. THE EVALUATION OF DISABILITY
25 People are “disabled” for purposes of receiving Social
26 Security benefits if they are unable to engage in any substantial
27 gainful activity owing to a physical or mental impairment that is
28 expected to result in death or has lasted, or is expected to
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1 last, for a continuous period of at least 12 months. 42 U.S.C.
2 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir.
3 1992).
4 A. The Five-Step Evaluation Process
5 An ALJ follows a five-step sequential evaluation process to
6 assess whether someone is disabled. 20 C.F.R. §§ 404.1520(a)(4),
7 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir.
8 1995) (as amended Apr. 9, 1996). In the first step, the
9 Commissioner must determine whether the claimant is currently
10 engaged in substantial gainful activity; if so, the claimant is
11 not disabled and the claim must be denied. §§ 404.1520(a)(4)(i),
12 416.920(a)(4)(i).
13 If the claimant is not engaged in substantial gainful
14 activity, the second step requires the Commissioner to determine
15 whether the claimant has a “severe” impairment or combination of
16 impairments significantly limiting her ability to do basic work
17 activities; if not, a finding of not disabled is made and the
18 claim must be denied. §§ 404.1520(a)(4)(ii) & (c),
19 416.920(a)(4)(ii) & (c).
20 If the claimant has a “severe” impairment or combination of
21 impairments, the third step requires the Commissioner to
22 determine whether the impairment or combination of impairments
23 meets or equals an impairment in the Listing of Impairments
24 (“Listing”) set forth at 20 C.F.R., part 404, subpart P, appendix
25 1; if so, disability is conclusively presumed and benefits are
26 awarded. §§ 404.1520(a)(4)(iii) & (d), 416.920(a)(4)(iii) & (d).
27 If the claimant’s impairment or combination of impairments
28 does not meet or equal one in the Listing, the fourth step
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1 requires the Commissioner to determine whether the claimant has
2 sufficient residual functional capacity (“RFC”)2 to perform her
3 past work; if so, she is not disabled and the claim must be
4 denied. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). The claimant
5 has the burden of proving she is unable to perform past relevant
6 work. Drouin, 966 F.2d at 1257. If the claimant meets that
7 burden, a prima facie case of disability is established. Id.
8 If that happens or if the claimant has no past relevant
9 work, the Commissioner bears the burden of establishing that the
10 claimant is not disabled because she can perform other
11 substantial gainful work available in the national economy, the
12 fifth and final step of the sequential analysis.
13 §§ 404.1520(a)(4)(v), 404.1560(b), 416.920(a)(4)(v), 416.960(b).
14 B. The ALJ’s Application of the Five-Step Process
15 At step one, the ALJ found that Plaintiff had not engaged in
16 substantial gainful activity since March 6, 2013, the alleged
17 onset date. (AR 1356.) At step two, he determined that she had
18 severe impairments of “degenerative disc disease of the lumbar
19 spine,” “asthma,” “shoulder impingement,” and “morbid obesity.”
20 (Id.)
21 At step three, he found that Plaintiff’s impairments did not
22 meet or equal any of the impairments in the Listing. (AR 1359.)
23 At step four, he determined that she had the RFC to perform less
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25 2 RFC is what a claimant can do despite existing exertional
26 and nonexertional limitations. §§ 404.1545(a)(1), 416.945(a)(1);
see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989).
27 The Commissioner assesses the claimant’s RFC between steps three
and four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir.
28 2017) (citing § 416.920(a)(4)).
5
1 than the full range of sedentary work: she could “lift, carry,
2 push, and pull 10 pounds occasionally and less than 10 pounds
3 frequently”; “stand/walk a total of 2 hours in an 8-hour
4 workday”; “sit 8 hours in an 8-hour workday, with normal breaks”;
5 “occasionally climb ramps and stairs, but . . . never climb
6 ladders, ropes or scaffolds”; “engage in occasional overhead
7 reaching”; and “occasionally stoop, kneel, crouch and crawl.”
8 (AR 1360.) She could not work around “unprotected heights,”
9 “dangerous machinery,” or “dusts, fumes or gases,” and she “would
10 miss two consecutive days of work” “every 4 months,” “up to 8
11 days a year.” (Id.)
12 The ALJ found that Plaintiff was unable to perform any past
13 relevant work (AR 1365), but she could work as an inspector,
14 assembler, or polisher, positions that “exist[ed] in significant
15 numbers in the national economy” (AR 1366). Accordingly, he
16 found her not disabled. (AR 1366-67.)
17 V. DISCUSSION3
18 Plaintiff alleges that the ALJ improperly rejected a portion
19 of the opinion of internist Harvey Alpern, a consulting medical
20 expert. (See J. Stip. at 6-13.) For the reasons discussed
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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 her administrative proceedings. (See AR 8-11,
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29-53, 1530-53, 1625-49, 1651-54, 1656-57); Meanel v. Apfel, 172
26 F.3d 1111, 1115 (9th Cir. 1999) (as amended); see also Kabani &
Co. v. SEC, 733 F. App’x 918, 919 (9th Cir. 2018) (rejecting
27 Lucia challenge because plaintiff did not raise it during
administrative proceedings), cert. denied, 139 S. Ct. 2013
28 (2019).
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1 below, remand is not warranted.
2 The ALJ Properly Evaluated Dr. Alpern’s Opinion
3 A. Applicable law
4 Three types of physicians may offer opinions in Social
5 Security cases: those who directly treated the plaintiff, those
6 who examined but did not treat the plaintiff, and those who did
7 neither. See Lester, 81 F.3d at 830. A treating physician’s
8 opinion is generally entitled to more weight than an examining
9 physician’s, and an examining physician’s opinion is generally
10 entitled to more weight than a nonexamining physician’s. Id.;
11 see §§ 404.1527(c)(1)-(2), 416.927(c)(1)-(2).4 But even “the
12 findings of a nontreating, nonexamining physician can amount to
13 substantial evidence, so long as other evidence in the record
14 supports those findings.” Saelee v. Chater, 94 F.3d 520, 522
15 (9th Cir. 1996) (per curiam) (as amended). Moreover, because a
16 testifying medical expert is subject to cross-examination, his
17 opinion may be given greater weight even if he did not examine
18 the claimant. Andrews v. Shalala, 53 F.3d 1035, 1042 (9th Cir.
19 1995).
20 B. Relevant background
21 Dr. Alpern reviewed Plaintiff’s medical record and testified
22 at the March 12, 2015 hearing that she had a history of “distant”
23 asthma, obesity, and degenerative disc disease. (AR 44.) He
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25 4 For claims filed on or after March 27, 2017, the rules in
26 §§ 404.1520c and 416.920c (not §§ 404.1527 and 416.927) apply.
See §§ 404.1520c, 416.920c (evaluating opinion evidence for
27 claims filed on or after Mar. 27, 2017). Plaintiff’s claims were
filed before March 27, 2017, however, and the Court therefore
28 analyzes them under former §§ 404.1527 and 416.927.
7
1 noted that although her degenerative disc disease did not “show
2 classic impingement,” “atrophy,” or “associated findings of
3 ambulation problems,” “she would have restrictions.” (Id.) He
4 limited her to what was essentially a sedentary RFC. (AR 45.)
5 She also would be absent from work “[e]very three months when she
6 has her [epidural] procedure.” (Id.) When the ALJ asked how
7 much time Plaintiff would need off for the procedure, he answered
8 “[a] week,” “maybe less.” (Id.) The ALJ further inquired
9 whether there was a “reasonable likelihood that [Plaintiff’s
10 doctors] would continue [her] epidurals every three months on a
11 sustained basis.” (AR 51.) He testified that if the epidurals
12 “demonstrate[d] true effectiveness[,] they may” continue
13 administering them, but “[o]therwise they would recommend
14 surgery.” (Id.)
15 At the January 22, 2019 hearing, Dr. Alpern clarified how
16 much time Plaintiff would need off for the epidural injections,
17 testifying that she was getting them “about every three months”5
18 and that they “involve[d] being off work for probably two to
19 three days.” (AR 1536.) He explained that his time estimate had
20 changed since the first hearing because once the epidurals became
21 routine, the preoperative portion of the procedure was not always
22 necessary. (AR 1540-41, 1550-51.)
23 The ALJ gave “great weight” to Dr. Alpern’s testimony and
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5 Plaintiff points to no treating doctor who opined that she
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needed injections every three months. And her own testimony on
26 this point was far from clear. She testified at the 2019 hearing
that the time between them was “four months” (AR 1536-37), but
27 she also agreed that she “g[o]t them quarterly” (id.), which
would be every three months. At the 2015 hearing she testified
28 that she received them “every three to four months.” (AR 33.)
8
1 opinion because they were “consistent with the overall medical
2 evidence” and he was “a board certified internist” who “was at
3 the first hearing” and had “had the opportunity to review all the
4 medical records in [their] entirety, consider the longitudinal
5 treatment records from the alleged onset date to the [date of the
6 hearing], as well as question [Plaintiff] at the [January 2019]
7 hearing.” (AR 1363.)
8 The ALJ gave only partial weight to Dr. Alpern’s testimony
9 that Plaintiff would miss two or three days of work every three
10 months, however, because he found that “[i]t d[id] not appear
11 that [Plaintiff] receive[d] injections that frequently,” noting
12 that she had had only five injections from April 2016 through
13 September 2018. (Id.; see AR 1851, 1891-92, 2025-26, 2197-98,
14 2388-91.) Moreover, the ALJ noted, although Plaintiff testified
15 that she stayed in bed after an injection anywhere from two to
16 seven days, Dr. Alpern opined that six or seven days was
17 uncharacteristically long. (AR 1363; see AR 1542.) Indeed,
18 “records show[ed] that [Plaintiff] was walking soon after her
19 injections without difficulty.” (AR 1363; see AR 1891-92, 2198,
20 2392.) The ALJ rejected Plaintiff’s symptom testimony as
21 inconsistent with the objective medical evidence, her
22 conservative treatment, her daily activities, and her collecting
23 unemployment benefits in 2017 (AR 1360-62, 1364-65), a finding
24 she has not challenged on appeal. Based on the evidence, the ALJ
25 found that “every 4 months, [Plaintiff] would miss two
26 consecutive days of work in that month, up to 8 days a year.”
27 (AR 1363.)
28 At the hearing, the ALJ presented hypotheticals to the VE
9
1 limiting Plaintiff to “miss[ing] one day per month,” “two days
2 per month,” “two days” “every four months,” and “three days”
3 “every four months.” (AR 1545-46.) The VE testified that the
4 inspector, assembler, and polisher positions would still be
5 available in significant numbers in the national economy for
6 someone missing one day of work a month, two days every four
7 months, or “eight days a year.” (Id.) But no jobs would be
8 available for someone who missed either two days a month or three
9 days every four months. (AR 1546-47.)
10 C. Analysis
11 Plaintiff argues that in finding that she would receive
12 injections only every four months, the ALJ improperly “focused on
13 th[e] 29-month period [between April 2016 and September 2018]
14 without looking at the entire medical record.” (J. Stip. at 8.)
15 But as previously noted, apparently no treating doctor ever
16 opined that she needed injections every three months.
17 Regardless, the ALJ would not have found that she received
18 injections more often than every four months even if he had
19 considered all the epidural injections referenced in the record.
20 The record indicates that Plaintiff had a total of 15 epidural
21 injections — an average of one every four and four-fifths months
22 — between March 13, 2013, and the ALJ’s April 4, 2019 decision.
23 (AR 403-05 (Mar. 13, 2013), 419 (Apr. 4, 2013), 440 (June 11,
24 2013), 530 (Aug. 31, 2013), 661 (Jan. 16, 2014), 950, 964-65 (May
25 6, 2014), 750 (Sept. 3, 2014), 1208-09 (Feb. 7, 2015), 1427-28
26 (May 30, 2015), 1514 (Oct. 17, 2015 (Sept. 10, 2015 progress note
27 indicating that injection was scheduled)), 1891-92 (Apr. 7,
28 2016), 1851 (Feb. 2, 2017), 2025-26 (Nov. 14, 2017), 2197-98 (May
10
1 3, 2018), 2388-91 (Sept. 1, 2018); see also AR 1536-37 (Plaintiff
2 testifying on January 22, 2019, that she had not had injection
3 since September or October 2018 and not mentioning any upcoming
4 scheduled injections).)
5 Plaintiff correctly notes that she received more than three
6 injections in 2013, and if the ALJ had focused solely on the
7 period between March 13, 2013, and January 16, 2014, the average
8 time between Plaintiff’s injections was less than four months.
9 (AR 403-05, 419, 454, 530, 661.) But focusing only on that time
10 period would have been improper. As Plaintiff concedes, the ALJ
11 was required to review the record as a whole and “is not free to
12 ignore relevant, competent evidence.” Kelly v. Berryhill, 732 F.
13 App’x 558, 562 (9th Cir. 2018) (citing Gallant v. Heckler, 753
14 F.2d 1450, 1455-56 (9th Cir. 1984)). Viewing the record as a
15 whole, the ALJ’s finding that Plaintiff had injections no more
16 than once every four months was supported by substantial evidence
17 — indeed, for most of the relevant period it was generous.
18 Plaintiff provides a litany of reasons why she did not have
19 the injections every three months, as she claimed she needed.
20 (See J. Stip. at 8-10 (attributing delays at various times to
21 rash and excision of neck mass, among other things).) But the
22 ALJ was entitled to extrapolate from a years-long course of
23 conduct covering nearly the entire relevant period that
24 Plaintiff’s schedule was unlikely to change. Cf. Molina v.
25 Astrue, 674 F.3d 1104, 1113-14 (9th Cir. 2012) (ALJ properly
26 relied on past frequency of treatment in assessing symptoms’
27 effect on ability to work), superseded by regulation on other
28 grounds as recognized in Schuyler v. Saul, 813 F. App’x 341, 342
11
(9th Cir. 2020); Luevano v. Berryhill, No. ED CV 16-0380-DFM,
WL 2413686, at *6 (C.D. Cal. June 2, 2017) (ALJ entitled to
3 rely on history of infrequent treatment in assessing frequency
4]/ and severity of symptoms).
5 Plaintiff’s RFC would allow her to be absent from work up to
6 || eight days a year for the epidural injections (AR 1360), which
7 || translates into three days for two of the three sets of
8 || injections a year and two for the other. This is fully
9 || consistent with Dr. Alpern’s statement that she would need “two
10 |} to three days” for each injection. (AR 1536.) Moreover,
11 Plaintiff testified that she “tr[ied] to get [the injections]
12 | during the week,” while her son was at school. (AR 1550.) At
13 || least on occasion, Plaintiff would presumably be able to schedule
14 || her injections for a Friday, thereby requiring her to miss only
15 || one day of work and making the ALJ’s eight-day yearly allowance
16 even more reasonable. Remand is not warranted on this issue.
17 |} VI. CONCLUSION
18 Consistent with the foregoing and under sentence four of 42
19f}U.S.Cc. § 405(g),° IT IS ORDERED that judgment be entered
20 |] AFFIRMING the Commissioner’s decision, DENYING Plaintiff's
21 || request for remand, and DISMISSING this action with prejudice.
22
23 || patrp: September 11, 2020 Prcadlat~
JEAN ROSENBLUTH
24 U.S. Magistrate Judge
25 |
26 ° That sentence provides: “The [district] court shall have
power to enter, upon the pleadings and transcript of the record,
27 judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
28 ll cause for a rehearing.”
12