# Bert Hicks v. Andrew Saul

> District Court, C.D. California · July 6, 2021

URL: https://www.frixlaw.com/law-library/cases/10041268

## Case

- **Court:** District Court, C.D. California
- **Decided:** July 6, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10

11 BERT H.,1 Case No. 2:20-cv-04922-GJS

12 Plaintiff

13 v. MEMORANDUM OPINION AND
ORDER
14 ANDREW M. SAUL, Commissioner
of Social Security,
15
Defendant.
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18 I. PROCEDURAL HISTORY
19 Plaintiff Bert H. (“Plaintiff”) filed a complaint seeking review of the decision
20 of the Commissioner of Social Security denying his applications for Disability
21 Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). The parties
22 filed consents to proceed before the undersigned United States Magistrate Judge
23 [Dkts. 5 and 11] and briefs addressing disputed issues in the case [Dkt. 18 (“Pl.
24 Br.”) and Dkt. 21 (“Def. Br.”).] The matter is now ready for decision. For the
25 reasons discussed below, the Court finds that this matter should be affirmed.
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27 1 In the interest of privacy, this Order uses only the first name and the initial of
the last name of the non-governmental party.
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1 II. ADMINISTRATIVE DECISION UNDER REVIEW
2 On April 19, 2016, Plaintiff filed his applications for SSI and DIB alleging
3 disability based on a variety of issues including a history of above-knee left leg
4 amputation stemming from a motorcycle accident in 2000 and a total right knee
5 replacement in 2016. [Dkt. 15, Administrative Record (“AR”).] Plaintiff’s
6 applications were denied initially, on reconsideration, and after a hearing before
7 Administrative Law Judge (“ALJ”) Ben Willner. [AR 1-6, 15-29.]
8 Applying the five-step sequential evaluation process, the ALJ found that
9 Plaintiff was not disabled. See 20 C.F.R. §§ 416.920(b)-(g)(1). At step one, the
10 ALJ found that Plaintiff had not engaged in substantial gainful activity since March
11 31, 2017, the alleged onset date. [AR 18.] At step two, the ALJ found that Plaintiff
12 had the following severe impairments: lower extremity amputation of the leg above
13 the knee; residual effects status-post surgery of a right knee replacement;
14 degenerative joint disease of the right knee; diabetes mellitus, Type II; and obesity.
15 [AR 18.] The ALJ determined at step three that Plaintiff did not have an impairment
16 or combination of impairments that meets or medically equals the severity of one of
17 the listed impairments. [AR 20-23.]
18 Next, the ALJ found that Plaintiff had the residual functional capacity
19 (“RFC”) to perform a limited range of sedentary work. [AR 23.] Applying this
20 RFC, the ALJ found at step four that Plaintiff could perform his past relevant work
21 as a telephone solicitor and thus he is not disabled. [AR 27.] Plaintiff sought
22 review of the ALJ’s decision, which the Appeals Council denied, making the ALJ’s
23 decision the Commissioner’s final decision. [AR 1-6.] This appeal followed.
24 III. GOVERNING STANDARD
25 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to
26 determine if: (1) the Commissioner’s findings are supported by substantial evidence;
27 and (2) the Commissioner used correct legal standards. See Carmickle v. Comm’r
28 Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Brewes v. Comm’r Soc. Sec.
1 Admin., 682 F.3d 1157, 1161 (9th Cir. 2012) (internal citation omitted).
2 “Substantial evidence is more than a mere scintilla but less than a preponderance; it
3 is such relevant evidence as a reasonable mind might accept as adequate to support a
4 conclusion.” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir.
5 2014) (internal citations omitted).
6 The Court will uphold the Commissioner’s decision when the evidence is
7 susceptible to more than one rational interpretation. See Molina v. Astrue, 674 F.3d
8 1104, 1110 (9th Cir. 2012). However, the Court may review only the reasons stated
9 by the ALJ in his decision “and may not affirm the ALJ on a ground upon which he
10 did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court will not
11 reverse the Commissioner’s decision if it is based on harmless error, which exists if
12 the error is “inconsequential to the ultimate nondisability determination, or if despite
13 the legal error, the agency’s path may reasonably be discerned.” Brown-Hunter v.
14 Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations
15 omitted).
IV. DISCUSSION
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17 Plaintiff raises the following arguments: (1) the ALJ erred in failing to find he
18 met or equaled Listings 1.02, 1.03 or 1.05 (ambulatory joint disorders); and (2) the
19 ALJ’s finding that he could perform his past relevant work is not supported by
20 substantial evidence. [Pl. Br. at 4-8.] The Commissioner asserts that the ALJ’s
21 decision should be affirmed. [Def. Br. at 1-15.]
22 A. The ALJ Did Not Err at Step Three
23 Plaintiff first contends the ALJ erred at Step Three in failing to find he met
24 Listings 1.02, 1.03, or 1.05 alone or in combination which generally covers
25 disabilities based on major dysfunction of a joint and the inability to ambulate
26 effectively. Plaintiff argues that there is sufficient evidence to show that he meets
27 the requirements of either of these Listings because “the record as a whole
28 demonstrates that [he] had an inability to ambulate effectively before and after his
1 total right knee replacement in November 11, 2016.” (Pl. Br at 5.) According to
2 Plaintiff, the medical evidence as a whole demonstrates that (1) he requires a
3 wheelchair which undermines the ALJ’s findings that he can ambulate effectively
4 and (2) the orthopedic Consultative Examiner found that he required a wheelchair to
5 ambulate and that he cannot stand and walk. Plaintiff further alleges that even if he
6 can ambulate with a prosthetic on his left leg the record establishes that he cannot
7 ambulate effectively when considering his left-leg amputation in combination with
8 his total right-knee replacement, which amounts to two lower extremity
9 impairments. (Pl. Br. at 5.)
10 In response, Defendant argues the medical evidence supported the ALJ’s step
11 three finding because Plaintiff did not satisfy the regulatory definition of “inability
12 to ambulate effectively.” (Def.’s Br. at 4-10.) Specifically, Defendant argues that
13 the record fails to establish that Plaintiff was unable to ambulate effectively for a
14 medical reason for a 12-month period, two requirements needed to establish that
15 Plaintiff meets the purported Listings.
16 1. Legal Standard
17 At step three in the sequential process, an ALJ must consider whether a
18 claimant’s conditions meet or equal any of the impairments outlined in the Listing
19 of Impairments. 20 C.F.R. § 404.1520(a)(4)(iii). The listings describe impairments
20 that “would prevent an adult, regardless of his age, education, or work experience,
21 from performing any gainful activity.” Sullivan v. Zebley, 493 U.S. 521, 530, 110 S.
22 Ct. 885, 107 L. Ed. 2d 967 (1990). If a claimant’s “impairment meets or equals one
23 of the listed impairments, the claimant is conclusively presumed to be disabled.”
24 Bowen v. Yuckert, 482 U.S. 137, 141, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987); see
25 also 20 C.F.R. § 404.1520(d). The claimant bears the burden of establishing a
26 prima facie case of disability under the listings. See Thomas v. Barnhart, 278 F.3d
27 947, 955 (9th Cir. 2002); see also 20 C.F.R. § 404.1520(a)(4)(iii).
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1 An impairment meets a listing when all the medical criteria required of that
2 listing is satisfied. 20 C.F.R. § 404.1525(c)(3); Tackett v. Apfel, 180 F.3d 1094,
3 1099 (9th Cir. 1999) (“To meet a listed impairment, a claimant must establish that
4 he or she meets each characteristic of a listed impairment relevant to his or her
5 claim.’). “To equal a listed impairment, a claimant must establish symptoms, signs
6 and laboratory findings “at least equal in severity and duration” to the characteristics
7 of a relevant listed impairment. . . .” Id. at 1099 (quoting 20 C.F.R. § 404.1526(a)).
8 “If a claimant suffers from multiple impairments and none of them
9 individually meets or equals a listed impairment, the collective symptoms, signs and
10 laboratory findings of all of the claimant’s impairments will be evaluated to
11 determine whether they meet or equal the characteristics of any relevant listed
12 impairment.” Id. (citing 20 C.F.R. § 404.1526(a)). However, “[m]edical
13 equivalence must be based on medical findings,” and “[a] generalized assertion of
14 functional problems is not enough to establish disability at step three.’” Id. at 1100
15 (quoting 20 C.F.R. § 404.1526(a))
16 2. Listings 1.02, 1.03 and 1.05
17 The relevant portions of Listings 1.02, 1.03 and 1.05 provide as follows:

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1.02 Major dysfunction of a joint(s) (due to any cause): Characterized
19 by gross anatomical deformity (e.g., subluxation, contracture, bony or
fibrous ankylosis, instability) and chronic joint pain and stiffness with
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signs of limitation of motion or other abnormal motion of the affected
21 joint(s), and findings on appropriate medically acceptable imaging of
joint space narrowing, bony destruction, or ankylosis of the affected
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joint(s). With:
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A. Involvement of one major peripheral weight-bearing joint (i.e., hip,
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knee, or ankle), resulting in inability to ambulate effectively, as defined
25 in 1.00B2b;
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. . . .
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28 1.03 Reconstructive surgery or surgical arthrodesis of a major weight-
1 1.00B2b, and return to effective ambulation did not occur, or is not
2 expected to occur, within 12 months of onset.
. . . .
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4 1.05 Amputation (due to any cause) of (B) One or both lower
extremities at or above the tarsal region, with stump complications
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resulting in medical inability to use a prosthetic device to ambulate
6 effectively, as defined in 1.00B2b, which have lasted or are expected to
last for at least 12 months.
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8 Listings 1.02, 1.03, 1.05.
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Section 1.00(B)(2)(b), a necessary finding common to Listings 1.02, 1.03, and
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1.05, defines “inability to ambulate effectively as follows:
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12 (1) Definition. Inability to ambulate effectively means an extreme
13 limitation of the ability to walk; i.e., an impairment(s) that interferes
very seriously with the individual’s ability to independently initiate,
14 sustain, or complete activities. Ineffective ambulation is defined
15 generally as having insufficient lower extremity functioning (see 1.00J)
to permit independent ambulation without the use of a hand-held
16 assistive device(s) that limits the functioning of both upper extremities.
17 (Listing 1.05C is an exception to this general definition because the
individual has the use of only one upper extremity due to amputation of
18 a hand.)
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(2) To ambulate effectively, individuals must be capable of sustaining a
20 reasonable walking pace over a sufficient distance to be able to carry
21 out activities of daily living. They must have the ability to travel
without companion assistance to and from a place of employment or
22 school. Therefore, examples of ineffective ambulation include, but are
23 not limited to, the inability to walk without the use of a walker, two
crutches or two canes, the inability to walk a block at a reasonable pace
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on rough or uneven surfaces, the inability to use standard public
25 transportation, the inability to carry out routine ambulatory activities,
such as shopping and banking, and the inability to climb a few steps at
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a reasonable pace with the use of a single hand rail. The ability to walk
27 independently about one’s home without the use of assistive devices
does not, in and of itself, constitute effective ambulation.
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1 Listing 1.00(B)(2)(b).
2 3. Analysis
3 Here, the ALJ considered whether Plaintiff’s amputation and total knee
4 replacement met or equaled several Listings including those under 1.02, 1.03 and
5 1.05. [AR 20.] The ALJ concluded that they did not, citing reasons including that
6 Plaintiff “demonstrated the ability to ambulate effectively with the use of a
7 prosthetic device.” [AR 22.] In reaching this conclusion, the ALJ discussed the
8 inconsistencies between Plaintiff’s testimony stating that he was constricted to the
9 use of a wheelchair and essentially unable to use a prosthetic device with the record
10 evidence demonstrating that Plaintiff used a prosthetic device to ambulate. [AR 22.]
11 At the outset, the ALJ acknowledged that throughout the record Plaintiff used
12 both a wheelchair and a prosthetic device. The ALJ, however, noted that Plaintiff’s
13 intermittent use of a wheelchair was not for a medically necessary reason, but was a
14 result of Plaintiff’s incarceration. [AR 21.] The record indicates that from February
15 2014 through November 2015, Plaintiff used a wheelchair at times while he was
16 housed at Corcoran State Prison because the prison took away his prosthesis. [AR
17 24, 312.] In further considering Plaintiff’s use of a prosthesis, or lack thereof, the
18 ALJ also considered the statements of Vincente Bernabe, M.D. who performed an
19 orthopedic consultative examination in July 2016 and stated that Plaintiff “is
20 confined to a wheelchair” and “he cannot stand and walk.” [AR 366.] The ALJ
21 however discounted Dr. Bernabe’s opinion, in part, because he based his opinion on
22 Plaintiff’s statement that he did not have any prosthesis. [See AR 360 (“he does not
23 have any prosthesis”) and 366 (“does not have an above knee amputation prosthesis
24 and is confined to a wheelchair.”) The ALJ found that the subjective statement
25 provided to Dr. Bernabe by Plaintiff contradicted ample other evidence in the record
26 that Plaintiff both has and uses a prosthesis. [AR 24.] The ALJ noted that despite
27 Plaintiff’s statement to Dr. Bernabe and at the administrative hearing that he was
28 confined to a wheelchair, “the record indicates that [Plaintiff] was not medically
1 constricted to a wheelchair, and it was only upon [Plaintiff’s] request that his
2 physician ordered him a wheelchair. Similarly, by Plaintiff’s own account, he only
3 began the use of a wheelchair because his prosthetic device was stolen, and he only
4 remained in the wheelchair because he failed to have it replaced due to alleged
5 insurance issues.” [AR 24.] The ALJ also concluded that more recent evidence in
6 the record demonstrated that shortly before the administrative hearing “Dynamics
7 Orthotics & Prosthetics, Inc. fit [Plaintiff] for a customized transfermoral
8 prosthesis” and Plaintiff “reported upon his fitting that the socket fit well.” [AR 24.]
9 While Plaintiff challenges the above findings, Plaintiff’s arguments fail for
10 several reasons. First, Plaintiff points to a 2016 medical record to argue that he was
11 unable to ambulate effectively using his left-leg prosthesis once he had surgery on
12 his right knee. Specifically, Plaintiff contends that the record demonstrates that
13 “one month after his right knee replacement” he fell while trying to pull on his left-
14 leg prosthesis. [AR 565.] However, Plaintiff does not discuss how his most recent
15 medical records, many of which were addressed by the ALJ, show an inability to
16 ambulate effectively. Although the 2016 medical record identified by Plaintiff notes
17 that he opened his surgical wound when he fell in 2016 (AR 565 and 617), more
18 recently, Plaintiff noted that his right knee felt stable and his physician
19 recommended that he “try to use a prosthesis on the left leg” in February 2017. [AR
20 721]. On March 20, 2017, he was seen at the hospital for abdominal pains, but his
21 physical examination was otherwise unremarkable: he had a normal range of
22 motion, no tenderness in his extremities, and his “right total knee replacement
23 wound appeared to be clean, dry and intact,” and his “left above-the-knee
24 amputation also appeared to be a ‘well healed wound.’” [AR 436, 486, 830, and
25 844.]
26 The ALJ evaluated this evidence, noting Plaintiff’s former challenges with the
27 use of his prosthetic device, but ultimately relied on the evidence demonstrating that
28 “immediately prior to the hearing [Plaintiff] was fitted for customized transfemoral
1 prosthesis without any further difficulties reported.” [AR 21.] The record further
2 indicated that the reason Plaintiff underwent total knee replacement surgery in
3 November 2016 was “for the purpose of walking with a prosthesis on his left leg.”
4 [AR 686.] Following that surgery and subsequent physical therapy, care providers
5 fitted Plaintiff for bilateral orthopedic shoes in early 2018 demonstrating that he had
6 continued to walk using both his right knee and his prosthesis on his left leg
7 following his 2016 surgery. [AR 1031.] Thus, the isolated evidence presented by
8 Plaintiff fails to demonstrate that his brief problems walking with his prosthesis after
9 knee surgery resulted in an extreme limitation that lasted consistently for twelve
10 months. See Connors v. Colvin, 656 Fed.Appx. 808, 810 (9th Cir. 2016)
11 (unpublished) (in the context of the rheumatoid arthritis listing, which references §
12 1.00B.2.b definition of “inability to ambulate effectively”: “Because [claimant’s]
13 walker was prescribed for ‘periodic use’ and because [claimant] claims to need the
14 walker only ‘at times,’ she cannot show an ‘extreme limitation of the ability to
15 walk’”).
16 Second, the Court is not persuaded by the crux of Plaintiff’s latter argument
17 that the ALJ should have adopted Dr. Bernabe’s opinion and/or Plaintiff’s self-
18 reports that he is incapable of ambulating without a wheelchair. To warrant a
19 finding of disability at Step Three of the sequential disability evaluation process, the
20 impairment “must result from anatomical, physiological, or psychological
21 abnormalities which can be shown by medically acceptable clinical and laboratory
22 diagnostic techniques.” 20 C.F.R. § 404.1508. Furthermore, it must be established
23 by medical evidence “consisting of signs, symptoms, and laboratory findings.” 20
24 C.F.R. § 404.1508; see also Social Security Ruling (“SSR”) 96-8p, 1996 SSR
25 LEXIS 5, *3-4, 1996 WL 374184, at *2 (determination that is conducted at step
26 three must be made on basis of medical factors alone). An impairment meets a listed
27 impairment “only when it manifests the specific findings described in the set of
28 medical criteria for that listed impairment.” SSR 83-19, 1983 SSR LEXIS 24, *3,
1 1983 WL 31248, at *2.
2 As set forth by the ALJ, the record lacks medical evidence demonstrating that
3 Plaintiff did not have any prosthesis and that his impairments resulted in an inability
4 to ambulate using his prosthesis. The ALJ properly rejected the only medical
5 opinion indicating that Plaintiff was confined to a wheelchair. Thus, neither Dr.
6 Bernabe’s opinion nor Plaintiff’s subjective complaints constitutes objective
7 medical evidence of an inability to ambulate effectively. See Veniale v. Colvin,
8 2014 U.S. Dist. LEXIS 39487, 2014 WL 1246135, at *2 (C.D. Cal. Mar. 24, 2014)
9 (affirming ALJ’s finding that claimant was not disabled under Listing 1.02(A)
10 where the ALJ found there was no medical evidence “to establish that [claimant’s]
11 knee osteoarthritis was sufficiently serious to require the use of a wheelchair or any
12 other assistive device”); Hamilton v. Astrue, 2010 U.S. Dist. LEXIS 99014, 2010
13 WL 3748744, at *7 (C.D. Cal. Sept. 22, 2010) (“Plaintiff’s self-reports of symptoms
14 and functional limitations based on hip and joint pain cannot suffice to raise the
15 severity of her related impairment to that of Listing 1.02(A).”).
16 Finally, Plaintiff has not shown that he was incapable of sustaining a
17 reasonable walking pace over a sufficient distance to be able to carry out activities
18 of daily living, i.e., the regulatory definition of effective ambulation. As the ALJ
19 noted, Plaintiff’s daily activities evidenced his ability to ambulate effectively. The
20 ALJ reiterated Plaintiff’s testimony regarding “his ability to use public
21 transportation to travel places for shopping and other daily needs, which is an
22 example of the ability to ambulate effectively.” [AR 21.] Because the record fails
23 to establish that Plaintiff was unable to ambulate effectively for a medical reason for
24 a 12-month period, he has not demonstrated that his impairments are equivalent to a
25 listed impairment. As it is Plaintiff’s burden to establish that he equals a Listing,
26 Plaintiff’s request for remand for a medical expert to provide an “updated” exam
27 and analyze all of the evidence with the hope of establishing that a combination of
28 his impairments meets or equals a Listing is insufficient to meet this burden.
1 Given Plaintiff’s demonstrated ability to ambulate effectively with a
2 prosthetic device, Plaintiff’s severe impairment does not satisfy Listings 1.02, 1.03
3 or 1.05 and the ALJ’s step three finding is supported by substantial evidence and is
4 free of legal error.
5 B. Substantial Evidence Supports the ALJ’s Step Four Finding
6 As a final matter, Plaintiff argues that the ALJ’s finding that he could perform
7 his past relevant work is not supported by substantial evidence. [Pl.’s Br. at 6-7.]
8 Specifically, Plaintiff argues that because the ALJ failed to credit his subjective
9 testimony that he is “wheelchair bound” and cannot stand or walk “as found by the
10 orthopedic Consultative Examiner” the ALJ erroneously found that he could
11 perform his past relevant work. (Pl.’s Br. at 6.) The Court again disagrees with
12 Plaintiff’s position.
13 Plaintiff’s contention that the ALJ’s step four finding is flawed essentially
14 restates his argument that the ALJ improperly rejected his subjective statements
15 made to the consultative examiner. Plaintiff does not argue that the hypothetical
16 posed to the VE failed to include all the limitations found in his RFC, instead
17 Plaintiff contends that he “cannot stand or walk per the orthopedic” evaluation and
18 therefore the ALJ should have questioned the vocational expert on the preclusion of
19 his past relevant work “due to an inability to stand and walk.” (Pl. Br. at 6.)
20 However, an ALJ is not obliged to accept as true limitations alleged by Plaintiff and
21 may decline to include such limitations in the vocational expert’s hypothetical if
22 they are not supported by sufficient evidence. See Martinez v. Heckler, 807 F.2d
23 771 (9th Cir. 1986); see also Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir.
24 2005); Hall v. Colvin, No. CV-13-0043, 2014 U.S. Dist. LEXIS 45006, at *24-25
25 (E.D. Wash. Mar. 31, 2014)(“A claimant fails to establish that a Step 5
26 determination is flawed by simply restating argument that the ALJ improperly
27 discounted certain evidence, when the record demonstrates the evidence was
28 properly rejected.”)
1 As discussed above, the ALJ rejected Plaintiff's subjective statements that he
2 || 1s restricted to a wheelchair and that he cannot stand or walk based on ample
3 || evidence in the record to the contrary. The ALJ then formulated an RFC based on
4 || the limitations he found credible and supported by the objective evidence. Because
5 || substantial evidence supports the ALJ’s RFC finding, the hypothetical posed to the
6 || VE properly encompassed all of Plaintiff's limitations, and in turn, the ALJ did not
7 || err in concluding that Plaintiff can perform his past relevant work. See Stubbs-
8 || Danielson v. Astrue, 539 F.3d 1169, 1175-76 (9th Cir. 2008) (“In arguing the ALJ’s
9 || hypothetical was incomplete, [the claimant] simply restates her argument that the
10 || ALJ’s RFC finding did not account for all her limitations because the ALJ
11 |} improperly discounted her testimony and the testimony of medical experts. As
12 || discussed above, we conclude the ALJ did not.”); Osenbrock v. Apfel, 240 F.3d
13 {| 1157, 1165 (9th Cir. 2001) (“It is, however, proper for an ALJ to limit a
14 || hypothetical to those impairments that are supported by substantial evidence in the
15 || record”).
16 Vv. CONCLUSION
17 For all of the foregoing reasons, IT IS ORDERED that the decision of the
18 || Commissioner finding Plaintiff not disabled is AFFIRMED.
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20 IT IS SO ORDERED.
21
22 || DATED: July 6, 2021
73 GAIL J. STANDISH
UNITED STATES MAGISTRATE JUDGE
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