Haux v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

ROBERT H.,1

Plaintiff, Civ. No. 6:22-cv-00565-MC

v. OPINION AND ORDER

COMMISSIONER, SOCIAL SECURITY

ADMINISTRATION,

Defendant.

_____________________________

MCSHANE, Judge:

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security

denying his application for supplemental security disability insurance benefits under Title XVI of

the Social Security Act. This Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3).

Plaintiff alleges that the Administrative Law Judge ("ALJ") erred by (1) finding

unpersuasive the medical opinion of Jeffrey Pentecost, DO, (2) improperly rejecting Plaintiff's

subjective symptom testimony, and (3) improperly rejecting the lay testimony of Plaintiff's wife.

Because the Commissioner's decision is based on proper legal standards and supported by

substantial evidence, the Commissioner's decision is AFFIRMED.

1 In the interest of privacy, this Opinion and Order uses only the first name and the initial of the

last name of the non-governmental party.

PROCEDURAL AND FACTUAL BACKGROUND

Plaintiff applied for benefits on July 24, 2020, alleging disability as of June 10, 2018. Tr.

189-90. Following a December 2021 hearing, ALJ Spaulding determined Plaintiff was not

disabled in a March 2021 decision. Tr. 15-26. Plaintiff sought review of the hearing decision

from the Appeals Council, which they denied in February 2022. Tr. 183-85, 1-6. The ALJ's

decision then became final, and now Plaintiff seeks judicial review of the ALJ's decision.

STANDARD OF REVIEW

The reviewing court shall affirm the Commissioner's decision if the decision is based on

proper legal standards and the legal findings are supported by substantial evidence in the record.

See 42 U.S.C. § 405(g); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.

2004); Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021). "Substantial evidence is 'more than

a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.'" Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir.

2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine whether

substantial evidence exists, the court reviews the administrative record as a whole, weighing both

the evidence that supports and that which detracts from the ALJ's conclusion. Davis v. Heckler,

868 F.2d 323, 326 (9th Cir. 1989) (citing Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir.

1986)). "'If the evidence can reasonably support either affirming or reversing,' the reviewing

court 'may not substitute its judgment' for that of the Commissioner." Gutierrez v. Comm’r of

Soc. Sec. Admin., 740 F.3d 519, 523 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715,

720–21 (9th Cir. 1996)).

DISCUSSION

The Social Security Administration utilizes a five-step sequential evaluation to determine

whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (2012). The burden

of proof rests on the claimant for steps one through four, and on the Commissioner for step five.

Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett v. Apfel, 180 F.3d

1094, 1098 (9th Cir. 1999)). At step five, the Commissioner's burden is to demonstrate that the

claimant can make an adjustment to other work existing in significant numbers in the national

economy after considering the claimant's residual functional capacity ("RFC"), age, education,

and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If the Commissioner fails to meet this

burden, then the claimant is considered disabled. Id.

Plaintiff argues the ALJ erred in finding unpersuasive the medical opinion of Jeffrey

Pentecost, DO, because the ALJ found "[t]he signs and findings in the record would not support

this opinion, and it is notable that much of this opinion is grounded in the [plaintiff]'s subjective

complaints." Pl.'s Br. 8; ECF No. 15. Dr. Pentecost found that Plaintiff had the following

subjective symptoms attributable to TBI (traumatic brain injury): headaches and

dizziness/vertigo. Tr. 1161-62. Dr. Pentecost later concluded Plaintiff would be unable to

perform any work duties during a bout of severe headache, vertigo, and that his memory deficits

limit his capacity to perform duties requiring management of multiple tasks. Tr. 1163. The ALJ

found Plaintiff's headaches to be non-severe, as "the [plaintiff] reports stable headaches at two or

three a month. He states that as long as he takes his sumatriptan at an early stage of the headache,

he gets good relief." Tr. 18, 1008. Regarding Plaintiff's reported vertigo, the ALJ is correct that

there is "very little in the treatment records in the way of evaluation or treatment for vertigo." Tr.

18. In fact, 2019 progress notes from the Roseburg VA Medical Center state "[p]atient reports no

history of: true vertigo/dizziness." Tr. 732. There are inconsistencies within the record and the

ALJ provided substantial evidence in rejecting Dr. Pentecost's opinion. The ALJ also cites to rule

20 C.F.R. § 404.1520b(c)2 to conclude that opinions of the VA3 are invaluable and unpersuasive

in this type of determination. The ALJ is correct. The VA uses their own respective rules to

determine disability, of which the ALJ is not bound to adhere to. The ALJ sufficiently

considered the underlying evidence of Dr. Pentecost's opinions, however, he did not find enough

objective evidence in the record to meet both supportability and consistency. For those reasons,

the ALJ did not err in rejecting Dr. Pentecost's opinion.

Plaintiff also contends the ALJ erred in discounting Plaintiff's subjective statements about

his limitations. To determine whether a claimant's testimony about subjective pain or symptoms

is credible, an ALJ performs a two-stage analysis. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th

Cir. 2017); 20 C.F.R. § 416.929. First, the claimant must produce objective medical evidence of

an underlying impairment that could reasonably be expected to produce the symptoms alleged.

Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d 1090; 1102 (9th Cir. 2014); Tommasetti v.

2 (c) Evidence that is inherently neither valuable nor persuasive. Paragraphs (c)(1) through (c)(3) apply in

claims filed (see § 404.614) on or after March 27, 2017. Because the evidence listed in paragraphs (c)(1) through

(c)(3) of this section is inherently neither valuable nor persuasive to the issue of whether you are disabled or blind

under the Act, we will not provide any analysis about how we considered such evidence in our determination or

decision, even under § 404.1520c:

(1) Decisions by other governmental agencies and nongovernmental entities. See § 404.1504.

3 § 404.1504. Decisions by other governmental agencies and nongovernmental entities.

Other governmental agencies and nongovernmental entities—such as the Department of Veterans

Affairs,— make disability, blindness, employability, Medicaid, workers' compensation, and other benefits decisions

for their own programs using their own rules. Because a decision by any other governmental agency or a

nongovernmental entity about whether you are disabled, blind, employable, or entitled to any benefits is based on

its rules, it is not binding on us and is not our decision about whether you are disabled or blind under our rules.

Therefore, in claims filed (see § 404.614) on or after March 27, 2017, we will not provide any analysis in our

determination or decision about a decision made by any other governmental agency or a nongovernmental entity

about whether you are disabled, blind, employable, or entitled to any benefits. However, we will consider all of the

supporting evidence underlying the other governmental agency or nongovernmental entity's decision that we

receive as evidence in your claim in accordance with § 404.1513(a)(1) through (4).

Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). Second, absent affirmative evidence that the

claimant is malingering, the ALJ must provide specific, clear and convincing reasons for

discounting the claimant's testimony regarding the severity of the symptoms. Trevizo, 871 F.3d

at 678; Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The ALJ must make findings

that are sufficiently specific to permit the reviewing court to conclude that the ALJ did not

arbitrarily discredit the claimant's testimony. Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th

Cir. 2015). The Ninth Circuit demands more than a summary of the medical evidence and

generic, high-level reasons why a claimant's allegations conflict with that evidence. Lambert v.

Saul, 980 F.3d 1266, 1277 (9th Cir. 2020). The Ninth Circuit "requires the ALJ to specifically

identify the testimony she or he finds not to be credible and . . . explain what evidence

undermines that testimony." Id.; Brown-Hunter, 806 F.3d at 494.

Clear and convincing reasons for rejecting a claimant's testimony “include conflicting

medical evidence, effective medical treatment, medical noncompliance, inconsistencies in the

claimant's testimony or between her testimony and her conduct, daily activities inconsistent with

the alleged symptoms, and testimony from physicians and third parties about the nature, severity

and effect of the symptoms” about which the claimant complains. Bowers v. Astrue, No. 11-cv-

583-SI, 2012 WL 2401642, at *9 (D. Or. June 25, 2012) (citing Tommasetti, 533 F.3d at 1040);

Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2013). In some circumstances, an ALJ may

reject subjective complaints where the claimant's "statements at her hearing do not comport with

objective medical evidence in her medical record." Bray v. Comm’r of Soc. Sec. Admin., 554

F.3d 1219, 1227 (9th Cir. 2009). However, a lack of objective evidence may not be the sole basis

for rejecting a claimant's subjective complaints. See Rollins v. Massanari, 261 F.3d 853, 856 (9th

Cir. 2001).

At the December 2021 hearing, Plaintiff testified "the old body is not like it used to be.

My ankle is totally done . . . My memory is about as fried as fried can be, which gets me

frustrated, and then I kind of get pissed because I can't remember things." Tr. 50. Plaintiff also

testified his joints negatively affect him, and that his left shoulder pain is worsening, requiring

surgery. Tr. 51. However, Plaintiff also believes his shoulders still have strength, but not at

100%. Tr. 56. When asked, Plaintiff agreed with the ALJ that his right ankle is his most limiting

impairment. Tr. 51. These symptoms reportedly affected his most recent job in 2018 as a lumber

associate/supervisor at Home Depot. Tr. 45. Plaintiff testified that job ended due to the effects of

his physical impairments. "My shoulders were gone. My ankles were killing me. Yeah, my body

had given out." Tr. 63. However, Plaintiff reported these symptoms prior to receiving injections

and having surgery on his ankle. Tr. 23, 770 ("He reports that his pain from surgery has

improved. The pain along his anterior ankle as completely resolved. He now notes mild

tenderness over his peroneals. Overall, he is doing well in his post operative course."). When the

ALJ asked him if his ankle pain improved after the injections, Plaintiff answers in the affirmative

and mentions that he can walk and drive 35-45 minutes. Tr. 48. The 9th Circuit shows

consistencies in rulings that affirm the ALJ's decision to deny benefits where symptoms have

improved with medication. See Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th

Cir. 2006) (Impairments that can be effectively controlled by medication or treatment are not

considered disabling for purposes of social security benefits); See also Linda Jean T. v. Saul, No.

19-cv-07738-DMR, 2021 U.S. Dist. LEXIS 90043, at *8 (N.D. Cal. May 11, 2021), Lewis v.

Comm’r of Soc. Sec. Admin., No. CV-20-00765-PHX-MTL, 2021 U.S. Dist. LEXIS 39094, at

*13 (D. Ariz. March 2, 2021). Here, Plaintiff testified that the ankle injections last for about four

months and during that time he is able to walk. Tr. 48. This claim is consistent with substantial

objective evidence, various medical opinions, and physical exams, as addressed by the ALJ. See

Tr. 23.

The ALJ did not reject outright Plaintiff’s symptom testimony. Instead, the ALJ

determined that while Plaintiff has "conditions, which singly or in combination, may cause him

problems. What these pieces of evidence suggest is that the claimant's symptoms may not exist at

the level of severity provided by the claimant's testimony at the hearing." Tr. 25. The ALJ found

Plaintiff had the following severe impairments: right ankle status post arthroscopy; left shoulder

degenerative joint disease post left shoulder arthropathy; and obesity. Tr. 17. Despite these

impairments, the ALJ found Plaintiff had the RFC to perform sedentary work, except he can

occasionally climb ramps and stairs; never climb ladders, ropes, or scaffolds; frequently balance;

frequently stoop; occasionally kneel; occasionally crouch; never crawl; and frequently reach

front, lateral, and overhead with the left upper extremity." Tr. 21. The ALJ noted ". . .the

[Plaintiff]'s statements concerning the intensity, persistence and limiting effects of these

symptoms are not entirely consistent with the medical evidence and other evidence the record . .

." Tr. 22. In support, the ALJ noted the objective MRI results, which revealed:

Moderate tibiotalar degenerative changes with chondrosis and subchondral edema

involving the lateral talar dome and mid plafond; soft tissue ganglion along the

anterolateral margin of the tibiotalar articulation with connection to the tibiotalar joint;

appearance of peroneal brevis split tear with tenosynovitis; moderate mid Achilles

tendinosis and mild insertional tendinosis with associated retrocalcaneal bursitis and

paratenonitis; and edematous signal within the medial malleolus and adjacent deltoid

which may be related to remote injury with possible intraosseous ganglion forming in the

medial malleolus.

Tr. 23 (internal citations omitted).

The ALJ then goes on to mention a 2021 post-op visit at Slocum Orthopedics, where his pain

levels were improved. Tr. 770. The ALJ contrasts Plaintiff's subjective symptom complaints with

the opinions of Dr. Davis, Dr. Davenport and Dr. Cuccaro. Dr. Davis opined Plaintiff can sit

eight hours in a typical workday, stand two hours and walk one hour, with standing/walking

limitations attributed to ankle pain and decreased range of motion. Tr. 23, 899, 904. This

conclusion is substantiated with several medical examinations in the record, including Plaintiff's

decreased range of motion in his right ankle. See Tr. 772, 778, 898, 985, 994, 997, 1208. State

agency medical consultant, Dr. Davenport, acknowledged Plaintiff's limitations, stating "He has

moderate right ankle arthritis/anterolateral impingement, treated with cortisone injections.

Imaging shows diffuse Achilles tendinosis with calcific ossification. Strength and sensation are

otherwise normal." Tr. 82. Dr. Davenport concluded this would not prevent the individual from

performing past relevant work as a department supervisor doing sedentary work. Tr. 70-85. State

agency medical consultant Dr. Cuccaro came to the same conclusion after reviewing the record.

Tr. 86-94.

Plaintiff argues the ALJ harmfully erred in failing to explain why he deemed Plaintiff's

post-surgical treatment as conservative. Pl.'s Br. 12; ECF No. 15. The Court disagrees.

Conservative treatment can be "sufficient to discount a claimant's testimony regarding severity of

an impairment." Parra v. Astrue, 481 F.3d at 750-51. As the ALJ noted, during the relevant

period, Plaintiff managed his symptoms largely by receiving cortisone injections, nonsteroidal

anti-inflammatory drugs, and topical gels. Tr. 897, 990, 994, 952-53. Furthermore, courts have

upheld conservative treatment findings under similar circumstances. See Hanes v. Colvin, 651 F.

App'x 703, 705-06 (9th Cir. 2016) (upholding ALJ's conservative treatment finding where the

[plaintiff's] treatment "consisted primarily of minimal medication, limited injections, physical

therapy, and gentle exercise"); Lorilyn W. v. Comm'r SSA, No. 6:19-CV-00925-YY, 2020 U.S.

Dist. LEXIS 223141, 2020 WL 7028475, at *4 (D. Or. Nov. 30, 2020) (upholding ALJ's

conservative treatment finding where plaintiff was treated "with NSAIDs, an injection, and

physical therapy"). This relatively conservative treatment record further called Plaintiff's

disability claim into question, and was a clear and convincing reason, supported by substantial

evidence, for the ALJ to discount Plaintiff's subjective symptom testimony.

Finally, Plaintiff argues the ALJ improperly rejected the lay witness testimony of his

wife. Pl.'s Br. 14; ECF No. 15. Plaintiff's wife provided an Adult Function Report discussing her

husband's impairments. Tr. 246-253. "[L]ay testimony as to a claimant's symptoms is competent

evidence that an ALJ must take into account, unless he or she expressly determines to disregard

such testimony and gives reasons germane to each witness for doing so." Lewis v. Apfel, 236

F.3d 503, 511 (9th Cir. 2001).

Plaintiff argues that the ALJ failed to provide specific, germane reasons for rejecting the

lay witness statements. Specifically, Plaintiff takes issue with the ALJ's dismissal of Plaintiff's

spouse's opinion because she "does not have the medical training necessary to make exacting

observations as to dates, frequencies, types and degrees of medical signs and symptoms . . . I am

more persuaded by the medical findings and observations of record." Tr. 25. While the Court

agrees with Plaintiff that an ALJ must evaluate both medical and nonmedical sources to

substantiate their opinion, the ALJ's discussion of the lay witness opinion was not harmful error.

"An ALJ's failure to comment upon lay witness testimony is harmless where the same evidence

that the ALJ referred to in discrediting the [plaintiff's] claims also discredits the lay witness's

claims." Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2009), superseded by regulation on

other grounds as stated in Schuyler v. Saul, 813 F. App'x 341 (9th Cir. 2020). In other words, the

ALJ need not "discuss every witness's testimony on an individualized, witness-by-witness basis,"

and reversal is not per se warranted simply because the ALJ omitted discussion of a particular

lay witness's testimony. Id. at 1114-22.

When reviewing the function report, Plaintiff's spouse's opinions were largely positive

regarding everyday life. When asked "How much time do you spend with the disabled person

and what do you do together?" she answered "Everyday. We enjoy exploring (driving) Oregon."

Tr. 246. She reports Plaintiff has no issues with personal care, and that he sometimes needs

reminders to take medicine. Tr. 247-48. Plaintiff goes outside everyday despite his impairments,

he drives, he can drive alone, properly handle funds, works on model airplanes every day, he

handles stress and changes in opinion "ok," but is losing his hearing and is not as active anymore

due to his ankle and shoulder pain. Tr. 248-253. This testimony is similar to that of Plaintiff's,

and at the very least shows to the Court that Plaintiff's life is more fulfilling than he stated at the

hearing. "In light of our conclusion that the ALJ provided clear and convincing reasons for

rejecting [the plaintiff's] own subjective complaint, and because [the lay witness] testimony was

similar to such complaints, it follows that the ALJ also gave germane reasons for rejecting [the

lay witness] testimony" Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir.

2009). Accordingly, the ALJ provided germane reasons for discounting the lay witness

testimony, and if the ALJ did err, such error was not harmful warranting a credit-as-true analysis.

Part of such analysis includes the "serious doubt caveat," which states that even where the

preceding steps direct remanding the case for benefits, further proceedings may be warranted if

the record as a whole creates "serious doubt" whether a claimant is, in fact, disabled within the

meaning of the Act. See, e.g., Brown-Hunter, 806 F.3d at 495; Dominguez v. Colvin, 808 F.3d

403, 407-08 (9th Cir. 2015). Such is not the case here. There is no serious doubt as to whether

Plaintiff is disabled.

The ALJ provided substantial evidence to find Dr. Pentecost, Plaintiff and his spouse's

opinions unpersuasive. Although Plaintiff argues another interpretation of the record is

reasonable, that is not a legitimate reason for overturning the ALJ's conclusions. See Gutierrez v.

Comm’r of Soc. Sec. Admin., 740 F.3d 519, 523 (9th Cir. 2014) ("If the evidence can reasonably

support either affirming or reversing, 'the reviewing court may not substitute its judgment' for

that of the Commissioner.") (quoting Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 1996))).

Because the ALJ provided "specific, clear and convincing reasons" for finding Plaintiff less-than

credible regarding the extent of his limitations, the ALJ did not err in giving little weight to

Plaintiff and his wife's testimony regarding those limitations. Vasquez v. Astrue, 572 F.3d 586,

591 (9th Cir. 2009) (quoting Smolen v. Chater, 80 F.3d 1273,1282 (9th Cir. 1996)).

CONCLUSION

The ALJ's decision supported by substantial evidence and, to the extent the ALJ erred,

the error was harmless. The Commissioner's final decision is therefore AFFIRMED.

IT IS SO ORDERED.

DATED this 30th day of August, 2023.

/s/ Michael McShane

Michael J. McShane

United States District Judge