Daniel v. Saul

1

FILED IN THE

2 EASTERU N. S D. I SD TI RS IT CR TI C OT F C WO AU SR HT I NGTON

Jul 01, 2021

3

SEAN F. MCAVOY, CLERK

4

5 UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

6

7 MARK LEROY D.,

NO: 2:20-CV-00094-FVS

8 Plaintiff,

ORDER GRANTING DEFENDANT’S

9 v. MOTION FOR SUMMARY

JUDGMENT AND DENYING

10 ANDREW M. SAUL, PLAINTIFF’S MOTION FOR

COMMISSIONER OF SOCIAL SUMMARY JUDGMENT

11 SECURITY,

12 Defendant.

13

14 BEFORE THE COURT are the parties’ cross motions for summary

15 judgment. ECF Nos. 12 and 16. This matter was submitted for consideration

16 without oral argument. The Plaintiff is represented by Attorney Bryant Sutton.

17 The Defendant is represented by Special Assistant United States Attorney Leisa A.

18 Wolf. The Court has reviewed the administrative record, the parties’ completed

19 briefing, and is fully informed. For the reasons discussed below, the Court

20 GRANTS Defendant’s Motion for Summary Judgment, ECF No. 16, and DENIES

21 Plaintiff’s Motion for Summary Judgment, ECF No. 12.

1 JURISDICTION

2 Plaintiff Mark Leroy D.1 protectively filed for disability insurance benefits

3 on February 8, 2017, alleging a disability onset date of July 1, 2016. Tr. 183-84.

4 Benefits were denied initially, Tr. 94-96, and upon reconsideration, Tr. 100-02.

5 Plaintiff requested a hearing before an administrative law judge (“ALJ”), which

6 was held on January 17, 2019. Tr. 28-71. Plaintiff was represented by counsel and

7 testified at the hearing. Id. The ALJ denied benefits, Tr. 12-27, and the Appeals

8 Council denied review. Tr. 1. The matter is now before this Court pursuant to 42

9 U.S.C. § 405(g).

10 BACKGROUND

11 The facts of the case are set forth in the administrative hearing and

12 transcripts, the ALJ’s decision, and the briefs of Plaintiff and the Commissioner.

13 Only the most pertinent facts are summarized here.

14 Plaintiff was 62 years old at the time of the hearing. Tr. 32. He completed

15 high school. Tr. 33. He lives with his wife. See Tr. 57. Plaintiff has work history

16 as a construction worker, house painter, metal fabricator, and CNC mill operator.

17 Tr. 34-37, 41. He testified that he could not go back to work because he gets very

18 little sleep every night, and therefore cannot concentrate and has “zero energy”

19

20 1 In the interest of protecting Plaintiff’s privacy, the Court will use Plaintiff’s first

21 name and last initial.

1 during the day. Tr. 38-39. Plaintiff also reported that he did not have an issue with

2 his previous employer due to “not sleeping”; rather, he was unable to keep working

3 at that job after he sustained his shoulder injury when skiing. Tr. 60.

4 Plaintiff testified that he has restless leg syndrome “constantly,” and cannot

5 sit for more than 15 minutes before he has to move around. Tr. 52. He takes

6 medication but testified that he has not had a “full night’s sleep” in five or six

7 years, and usually gets between three-and-a-half to four-and-a-half hours of sleep

8 on an average night. Tr. 54-55. Plaintiff reported he has sleep apnea, did not

9 tolerate the CPAP machine, and uses a mouth guard that is effective in reducing his

10 symptoms. Tr. 58. He testified that his “back is stiff constantly”; he has back pain

11 around a three or four out of ten all the time; once every six months he has a “flare-

12 up” of back pain that is ten out of ten on a pain scale; and at the time of the hearing

13 he was in the middle of a “flare-up” of back pain that he rated at a six out of ten.

14 Tr. 62-65. Plaintiff reported that he spends three to four hours a day “up and

15 down” from an easy chair and the couch. Tr. 67.

16 STANDARD OF REVIEW

17 A district court’s review of a final decision of the Commissioner of Social

18 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is

19 limited; the Commissioner’s decision will be disturbed “only if it is not supported

20 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153,

21 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a

1 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159

2 (quotation and citation omitted). Stated differently, substantial evidence equates to

3 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and

4 citation omitted). In determining whether the standard has been satisfied, a

5 reviewing court must consider the entire record as a whole rather than searching

6 for supporting evidence in isolation. Id.

7 In reviewing a denial of benefits, a district court may not substitute its

8 judgment for that of the Commissioner. “The court will uphold the ALJ's

9 conclusion when the evidence is susceptible to more than one rational

10 interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir.

11 2008). Further, a district court will not reverse an ALJ’s decision on account of an

12 error that is harmless. Id. An error is harmless where it is “inconsequential to the

13 [ALJ’s] ultimate nondisability determination.” Id. (quotation and citation omitted).

14 The party appealing the ALJ’s decision generally bears the burden of establishing

15 that it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009).

16 FIVE-STEP EVALUATION PROCESS

17 A claimant must satisfy two conditions to be considered “disabled” within

18 the meaning of the Social Security Act. First, the claimant must be “unable to

19 engage in any substantial gainful activity by reason of any medically determinable

20 physical or mental impairment which can be expected to result in death or which

21 has lasted or can be expected to last for a continuous period of not less than twelve

1 months.” 42 U.S.C. § 423(d)(1)(A). Second, the claimant’s impairment must be

2 “of such severity that he is not only unable to do his previous work[,] but cannot,

3 considering his age, education, and work experience, engage in any other kind of

4 substantial gainful work which exists in the national economy.” 42 U.S.C. §

5 423(d)(2)(A).

6 The Commissioner has established a five-step sequential analysis to

7 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §

8 404.1520(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s

9 work activity. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in

10 “substantial gainful activity,” the Commissioner must find that the claimant is not

11 disabled. 20 C.F.R. § 404.1520(b).

12 If the claimant is not engaged in substantial gainful activity, the analysis

13 proceeds to step two. At this step, the Commissioner considers the severity of the

14 claimant’s impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers

15 from “any impairment or combination of impairments which significantly limits

16 [his or her] physical or mental ability to do basic work activities,” the analysis

17 proceeds to step three. 20 C.F.R. § 404.1520(c). If the claimant’s impairment

18 does not satisfy this severity threshold, however, the Commissioner must find that

19 the claimant is not disabled. 20 C.F.R. § 404.1520(c).

20 At step three, the Commissioner compares the claimant’s impairment to

21 severe impairments recognized by the Commissioner to be so severe as to preclude

1 a person from engaging in substantial gainful activity. 20 C.F.R. §

2 404.1520(a)(4)(iii). If the impairment is as severe or more severe than one of the

3 enumerated impairments, the Commissioner must find the claimant disabled and

4 award benefits. 20 C.F.R. § 404.1520(d).

5 If the severity of the claimant’s impairment does not meet or exceed the

6 severity of the enumerated impairments, the Commissioner must pause to assess

7 the claimant’s “residual functional capacity.” Residual functional capacity (RFC),

8 defined generally as the claimant’s ability to perform physical and mental work

9 activities on a sustained basis despite his or her limitations, 20 C.F.R. §

10 404.1545(a)(1), is relevant to both the fourth and fifth steps of the analysis.

11 At step four, the Commissioner considers whether, in view of the claimant’s

12 RFC, the claimant is capable of performing work that he or she has performed in

13 the past (past relevant work). 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is

14 capable of performing past relevant work, the Commissioner must find that the

15 claimant is not disabled. 20 C.F.R. § 404.1520(f). If the claimant is incapable of

16 performing such work, the analysis proceeds to step five.

17 At step five, the Commissioner considers whether, in view of the claimant’s

18 RFC, the claimant is capable of performing other work in the national economy.

19 20 C.F.R. § 404.1520(a)(4)(v). In making this determination, the Commissioner

20 must also consider vocational factors such as the claimant’s age, education and

21 past work experience. 20 C.F.R. § 404.1520(a)(4)(v). If the claimant is capable of

1 adjusting to other work, the Commissioner must find that the claimant is not

2 disabled. 20 C.F.R. § 404.1520(g)(1). If the claimant is not capable of adjusting to

3 other work, analysis concludes with a finding that the claimant is disabled and is

4 therefore entitled to benefits. 20 C.F.R. § 404.1520(g)(1).

5 The claimant bears the burden of proof at steps one through four above.

6 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to

7 step five, the burden shifts to the Commissioner to establish that (1) the claimant is

8 capable of performing other work; and (2) such work “exists in significant

9 numbers in the national economy.” 20 C.F.R. § 404.1560(c)(2); Beltran v. Astrue,

10 700 F.3d 386, 389 (9th Cir. 2012).

11 ALJ’S FINDINGS

12 At step one, the ALJ found that Plaintiff has not engaged in substantial

13 gainful activity since July 1, 2016, the alleged onset date. Tr. 17. At step two, the

14 ALJ found that Plaintiff has the following severe impairments: restless leg

15 syndrome; obstructive sleep apnea; chronic insomnia; a tear of right upper

16 extremity supraspinatus tendon/adhesive capsulitis; and recurrent back strain. Tr.

17 17. At step three, the ALJ found that Plaintiff does not have an impairment or

18 combination of impairments that meets or medically equals the severity of a listed

19 impairment. Tr. 18. The ALJ then found that Plaintiff has the RFC

20 to perform light work as defined in 20 CFR 404.1567(b) in so much as

he has the capacity to lift and/or carry 20 pounds occasionally and ten

21 pounds frequently; stand and/or walk for a total of six hours, and sit for

1 frequent push and/or pull with right upper extremity. He is limited to

no climbing of ladders, ropes, or scaffolds. The claimant is limited to

2 frequent crawling. He is limited to frequent reach in all directions with

the right upper extremity.

3

Tr. 18. At step four, the ALJ found that Plaintiff was capable of performing past

4

relevant work as a mill operator. Tr. 22. On that basis, the ALJ concluded that

5

Plaintiff has not been under a disability, as defined in the Social Security Act, from

6

July 1, 2016, through the date of the decision. Tr. 23.

7

ISSUES

8

Plaintiff seeks judicial review of the Commissioner’s final decision denying

9

her disability insurance benefits under Title II of the Social Security Act. ECF No.

10

12. Plaintiff raises the following issues for this Court’s review:

11

1. Whether the ALJ properly considered Plaintiff’s symptom claims; and

12

2. Whether the ALJ erred at step four.

13

DISCUSSION

14

A. Plaintiff’s Symptom Claims

15

An ALJ engages in a two-step analysis when evaluating a claimant’s

16

testimony regarding subjective pain or symptoms. “First, the ALJ must determine

17

whether there is objective medical evidence of an underlying impairment which

18

could reasonably be expected to produce the pain or other symptoms alleged.”

19

Molina, 674 F.3d at 1112 (internal quotation marks omitted). “The claimant is not

20

required to show that her impairment could reasonably be expected to cause the

21

1 severity of the symptom he has alleged; he need only show that it could reasonably

2 have caused some degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591

3 (9th Cir. 2009) (internal quotation marks omitted).

4 Second, “[i]f the claimant meets the first test and there is no evidence of

5 malingering, the ALJ can only reject the claimant’s testimony about the severity of

6 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the

7 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal

8 citations and quotations omitted). “General findings are insufficient; rather, the

9 ALJ must identify what testimony is not credible and what evidence undermines

10 the claimant’s complaints.” Id. (quoting Lester, 81 F.3d at 834); Thomas v.

11 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he ALJ must make a credibility

12 determination with findings sufficiently specific to permit the court to conclude

13 that the ALJ did not arbitrarily discredit claimant’s testimony.”). “The clear and

14 convincing [evidence] standard is the most demanding required in Social Security

15 cases.” Garrison, 759 F.3d at 1015 (quoting Moore v. Comm’r of Soc. Sec.

16 Admin., 278 F.3d 920, 924 (9th Cir. 2002)).

17 Here, the ALJ found Plaintiff’s medically determinable impairments could

18 reasonably be expected to cause some of the alleged symptoms; however,

19 Plaintiff’s “statements concerning the intensity, persistence and limiting effects of

20 these symptoms are not entirely consistent with the medical evidence and other

21 evidence in the record” for several reasons. Tr. 19.

1 1. Lack of Objective Medical Evidence

2 First, as to his claims of disabling back pain, the ALJ noted “few specific

3 abnormal objective findings of ongoing back problems after the alleged onset

4 date,” and “few complaints in the record of back pain.” Tr. 19. An ALJ may not

5 discredit a claimant’s pain testimony and deny benefits solely because the degree

6 of pain alleged is not supported by objective medical evidence. Rollins v.

7 Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341,

8 346-47 (9th Cir. 1991); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989).

9 However, the medical evidence is a relevant factor in determining the severity of a

10 claimant’s pain and its disabling effects. Rollins, 261 F.3d at 857; 20 C.F.R. §

11 404.1529(c)(2). In support of this finding, the ALJ cited the results of the June

12 2016 x-rays of Plaintiff’s cervical and lumbar spine that generally noted, without

13 any comment as to severity, a “narrowing” of the cervical spine and “degenerative

14 changes” in the lower lumbar spine. Tr. 19 (citing Tr. 319). Plaintiff does not

15 challenge this finding with specificity in his opening brief; rather, as discussed in

16 detail below, his argument is confined to the ALJ’s finding that Plaintiff failed to

17 pursue treatment for his alleged back pain. Thus, the Court declines to address this

18 finding. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th

19 Cir. 2008). The lack of corroboration of Plaintiff’s claimed back pain by objective

20 medical evidence was a clear, convincing, and unchallenged reason for the ALJ to

21 discount Plaintiff’s symptom claims. See Burch v. Barnhart, 400 F.3d 676, 680

1 (9th Cir. 2005) (minimal objective evidence is a factor which may be relied upon

2 in discrediting a claimant’s testimony, although it may not be the only factor).

3 2. Failure to Seek and Comply with Treatment

4 Second, the ALJ found that Plaintiff failed to seek treatment for his back

5 pain, delayed treatment for shoulder pain, and failed to comply with treatment

6 recommendations regarding his complaints of restless leg syndrome and insomnia

7 Tr. 19-22. Unexplained, or inadequately explained, failure to seek or comply with

8 treatment may be the basis for rejecting Plaintiff’s symptom claims unless there is

9 a showing of a good reason for the failure. Orn v. Astrue, 495 F.3d 625, 638 (9th

10 Cir. 2007).

11 First, the ALJ found that, aside from ongoing chiropractic treatment,

12 Plaintiff “did not receive any other regular treatment for his back, such as follow-

13 up with an orthopedist. . . . [And he] also did not seek regular or frequent

14 emergency intervention for back pain exacerbations.” Tr. 20. Plaintiff generally

15 argues that the ALJ “mischaracterized” the medical record by “referencing one

16 note from 2016 and another from 2018, and then found that ‘[t]he claimant did not

17 receive any other regular treatment for his back[.]’ However, this completely

18 ignores the more than 200 pages in the record of regular chiropractic treatment

19 from January 2016 through December 2018.” ECF No. 12 at 12 (citing Tr. 598-

20 803). This argument is inapposite because the ALJ explicitly noted that “the only

21 regular treatment [Plaintiff] sought for his back was chiropractic follow-up.” Tr.

1 19. However, the ALJ additionally found that “[h]is chiropractic notes were very

2 similar from appointment to appointment and did not describe disabling symptoms.

3 The objective findings from these notes were vague, noting areas of

4 ‘hypomobility’ and ‘mild hypertonicity.’” Tr. 19 (citing Tr. 598-803 (uniformly

5 noting that Plaintiff’s “current treatment plan seems to be effective”). Evidence of

6 “conservative treatment” is sufficient to discount a claimant's testimony regarding

7 the severity of an impairment. See Parra v. Astrue, 481 F.3d 742, 751 (9th Cir.

8 2007). Moreover, regardless of evidence that could be considered favorable to

9 Plaintiff, it was reasonable for the ALJ to find that Plaintiff’s failure to pursue

10 treatment aside from “regular” chiropractic care, which included only vague

11 objective findings and “very similar” notes across the entire course of treatment,

12 was inconsistent with the severity of Plaintiff’s claimed back pain. Tr. 19.

13 “[W]here evidence is susceptible to more than one rational interpretation, it is the

14 [Commissioner’s] conclusion that must be upheld.” Burch, 400 F.3d at 679.

15 Second, as to his shoulder injury sustained while skiing in February 2016,

16 the ALJ noted that Plaintiff “delayed treatment initially for unknown reasons. He

17 was advised to pursue physical therapy for two to three months to allow the

18 fracture to completely heal before considering surgical intervention. Despite this

19 advice, as of September 20, 2016, [Plaintiff] still had not tried formal physical

20 therapy and was instead trying a home exercise program.” Tr. 20. Plaintiff argues

21 that “the record shows conflicting opinions from treatment providers about

1 whether to pursue surgical intervention or physical therapy in June 2016. The fact

2 that [Plaintiff] chose to begin physical therapy (rather than surgical treatment) just

3 two months later should not be held against him, as (1) he was weighing his

4 options, (2) his fracture was healing; and (3) this does not constitute a significant

5 delay of time.” ECF No. 12 at 13 (citing Tr. 329, 334); see also ECF No. 17 at 2

6 (adding in his reply brief that this delay in seeking treatment should “not be held

7 against him” because “his disabling allegations are not related to his resolved right

8 shoulder issues”).

9 However, the Court’s review of the two records cited by Plaintiff in support

10 of this argument indicate that on July 7, 2016, Plaintiff was advised by physician

11 assistant, Mr. Greg McDonough, that he should consider surgical intervention after

12 an MRI revealed “moderate to high grade tearing” in his right shoulder. Tr. 334.

13 However, Mr. McDonough also noted that he would “review the MRI with Dr.

14 Rossi tomorrow and we will progress with surgical intervention if he agrees with

15 my recommendation.” Tr. 334. Subsequently, on July 8, 2016, according to the

16 second record cited by Plaintiff, Dr. Rossi reviewed the MRI and disagreed with

17 Mr. McDonough’s suggestion, instead recommending that Plaintiff “pursue a

18 continued nonoperative approach for the next 2-3 months with physical therapy to

19 allow the fracture to completely heal before consideration of surgical

20 management.” Tr. 329. Thus, despite Plaintiff’s argument to the contrary, the

21 final treatment recommendation to Plaintiff was to pursue physical therapy for 2-3

1 months; however, as noted by the ALJ, Plaintiff delayed pursuing this treatment

2 until September 21, 2016. Tr. 329, 349. Moreover, as discussed in detail below,

3 upon pursuing the recommended treatment, the record clearly indicates that

4 Plaintiff’s right shoulder pain successfully resolved. Tr. 20-21 (citing Tr. 424, 429,

5 439, 441, 449, 451, 456-58, 466 (x-ray indicating healing greater tuberosity

6 fracture without displacement), 541 (“shoulder pain is actually resolved at this

7 point”). Based on the foregoing, it was reasonable for the ALJ to consider

8 Plaintiff’s failure to comply with recommended treatment for his right shoulder

9 pain as a reason to discount the severity of his symptom claims. See Orn, 495 F.3d

10 at 638.

11 Third, as to his restless leg syndrome and sleep complaints, the ALJ found

12 that Plaintiff “repeatedly” delayed treatment and failed to follow treatment advice

13 and recommendations. Tr. 21-22. In support of this finding, the ALJ first noted

14 that “[m]ost of [Plaintiff’s] more recent sleeping difficulties appear to be tied to his

15 use of Oxycodone, which he was repeatedly advised to stop taking. . . . He was

16 placed on Oxycodone in May 2015. By August 2015, [Plaintiff] stopped taking his

17 Oxycodone because he was advised that it might be affecting his sleep cycles and

18 causing him to not get a refreshing sleep.” Tr. 21 (citing Tr. 576, 586). The ALJ

19 also found that Plaintiff “continued to use Oxycodone even though he reported in

20 March 2017 that he had good prior response to Neupro and the possibility was

21 raised of restarting this medication”; and it was noted in October 2018 that

1 Oxycodone was “suspected” to be interrupting his REM sleep, but Plaintiff was

2 very resistant to discontinuing the medication.” Tr. 21-22 (citing Tr. 500, 918,

3 929). However, as noted by Plaintiff, subsequent treatment records confirm that

4 neupro “failed” to control his restless leg syndrome, in addition to the failure of the

5 drugs gabapentin, klonopin, mirapex, requip, and sinemet; and despite treatment

6 providers’ observations that oxycodone was impacting his ability to sleep, Plaintiff

7 consistently was prescribed oxycodone throughout the relevant adjudicatory

8 period, and it was noted to be “effective in controlling his restless leg syndrome.”

9 ECF No. 12 at 13-14 (citing Tr. 540-41, 918 (transitioning from oxycodone to

10 methadone in 2018), 933-34); Tr. 473, 520, 530.

11 The Court declines to hold Plaintiff accountable for an alleged failure to

12 decline a medication that, while not without side effects, was consistently

13 prescribed and noted to be the only effective treatment in controlling his claimed

14 impairment of restless leg syndrome until, as discussed below, his restless leg

15 syndrome improved with the use of methadone. Based on the overall record, the

16 Court finds that Plaintiff’s ongoing use of oxycodone throughout the relevant

17 period, standing alone, does not rise to the level of substantial evidence to support

18 a finding that he failed to comply with treatment recommendations. However, any

19 error is harmless because the ALJ’s ultimate rejection of Plaintiff’s symptom

20 claims based on his failure to comply with treatment recommendations was

21 supported by substantial evidence. See Carmickle, 533 F.3d at 1162-63.

1 First, the ALJ noted evidence that Plaintiff was “struggling with CPAP

2 compliance,” and repeatedly failed to follow up with diagnostics as to optimize his

3 CPAP use. Tr. 21-22 (citing Tr. 313, 499-500, 541). Plaintiff fails to challenge

4 this finding with specificity in his opening brief; thus, the Court may decline to

5 address the issue. See Carmickle, 533 F.3d at 1161 n.2. In his reply brief, Plaintiff

6 briefly notes that he testified that the CPAP “dries out my sinuses, my throat, my

7 lips, my tongue – everything so bad, that I can’t wear one. So now I wear a mouth

8 guard that moves your lower jaw slightly forward, and it helps to keep your

9 airways open. . . . Maybe it’s not as good as a CPAP would be, but it’s – I’m not

10 waking myself up, choking or snoring anymore.” ECF No. 17 (citing Tr. 58).

11 Pursuant to Social Security Ruling 16-3p, an ALJ “will not find an individual’s

12 symptoms inconsistent with the evidence in the record on this basis without

13 considering possible reasons he or she may not comply with treatment or seek

14 treatment consistent with the degree of his or her complaints.” Social Security

15 Ruling (“SSR”) 16-3p at *8-*9 (March 16, 2016), available at 2016 WL 1119029.

16 However, Plaintiff’s personal preference to stop using the CPAP is not an adequate

17 explanation as to why he failed to follow up with recommendations from his

18 treating providers in order to adequately address his claimed impairment of sleep

19 apnea.

20 Second, the ALJ noted that Plaintiff’s medical providers advised him to

21 pursue behavioral health care for his sleep issues, but Plaintiff repeatedly declined.

1 Tr. 21-22 (citing Tr. 541, 906, 918 (recommending “strongly” that Plaintiff pursue

2 behavioral health for counseling “to help address some of his underlying issues

3 with regard to his insomnia”), 929). Plaintiff argues this “is not a legitimate reason

4 to discount his testimony, as Plaintiff has not alleged any mental health

5 impairments or symptoms in his DIB application or testimony.” ECF No. 12 at 14.

6 This argument is inapposite. As specifically noted by the ALJ in support of this

7 finding, Plaintiff’s treating providers recommended that Plaintiff pursue behavioral

8 health treatment for possible “underlying issues” with his ability to sleep, not for

9 any claimed mental health impairments. Thus, it was reasonable for the ALJ to

10 consider Plaintiff’s refusal to comply with recommended health treatment as a

11 reason to discount his symptom claims.

12 Based on the overall record, and regardless of evidence that could be

13 considered more favorable to Plaintiff, the ALJ properly discounted Plaintiff’s

14 symptom claims due to his repeated failure to seek and comply with treatment

15 advice for his claimed impairments of back pain, shoulder pain, restless leg

16 syndrome, and sleep issues. See Burch, 400 F.3d at 679 (ALJ’s conclusion must

17 be upheld where evidence is susceptible to more than one rational interpretation).

18 3. Improvement

19 Third, the ALJ found that successful treatment of Plaintiff’s back pain,

20 shoulder pain, and restless leg syndrome, was inconsistent with Plaintiff’s

21 “statements about the intensity, persistence, and limiting effects of his symptoms.”

1 Tr. 19-21. A favorable response to treatment can undermine a claimant's

2 complaints of debilitating pain or other severe limitations. See Tommasetti v.

3 Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008); Warre v. Comm'r of Soc. Sec. Admin.,

4 439 F.3d 1001, 1006 (9th Cir. 2006) (conditions effectively controlled with

5 medication are not disabling for purposes of determining eligibility for benefits).

6 In support of this finding, the ALJ cited treatment notes indicating that (1)

7 Plaintiff’s back pain was “responding well to treatment and his functioning

8 improved”; (2) there was “quick and progressive improvement” of Plaintiff’s

9 shoulder pain after initiating physical therapy, and a 2018 treatment note indicated

10 Plaintiff’s shoulder pain had “resolved”; and (3) there was an “immediate”

11 improvement in Plaintiff’s restless leg syndrome and insomnia after transitioning

12 from oxycodone to methadone in November 2018. Tr. 20-22 (citing Tr. 360, 365,

13 385, 424, 429, 434, 441, 451, 541 (shoulder pain is “resolved”), 638, 787-93

14 (describing “temporary worsening” of back pain but still noting his “treatment plan

15 seems to be effective”), 933-34 (improvement in restless leg syndrome and

16 insomnia)).

17 Plaintiff fails to address the evidence of improvement cited by the ALJ in his

18 opening brief. See Carmickle, 533 F.3d at 1161 n.2 (court may decline to address

19 issues not raised with specificity in Plaintiff’s opening brief). In his reply, Plaintiff

20 argues (1) there was “exacerbation of back pain,” and cites one October 2018

21 chiropractic treatment note that identifies restricted range of motion, “muscle

1 guarding/spasms,” multiple subluxations, and “acute aggravation” of pain in

2 Plaintiff’s back; and (2) he “suffered severe symptoms from [restless leg

3 syndrome]/sleep impairments throughout the vast majority of the relevant time

4 period, with ineffectiveness of numerous medications,” and “there is no indication

5 his November 2018 improvement [in his restless leg syndrome and insomnia] was

6 permanent.” ECF No. 17 at 4-6 (citing Tr. 780). However, the ALJ’s decision

7 includes consideration of relevant evidence from the adjudicatory period, including

8 “temporary worsening” of Plaintiff’s back pain in 2018, and the failure of

9 medications Plaintiff was prescribed in order to treat his sleep issues and restless

10 leg syndrome. Tr. 19-21 (citing Tr. 541, 787-93). Moreover, regardless of

11 evidence that could be interpreted more favorably to the Plaintiff, it was reasonable

12 for the ALJ to conclude that evidence of improvement in Plaintiff’s claimed

13 impairments was inconsistent with his allegations of incapacitating limitations.

14 See Burch, 400 F.3d at 679 (ALJ’s conclusion must be upheld where evidence is

15 susceptible to more than one rational interpretation). This was a clear, convincing,

16 and largely unchallenged reason for the ALJ to discount Plaintiff’s symptom

17 claims.

18

19

20

21

1 The Court concludes that the ALJ provided clear and convincing reasons,

2 supported by substantial evidence, for rejecting Plaintiff’s symptom claims.2

3 B. Step Four

4 At the fourth step of the sequential evaluation process, Plaintiff has the

5 burden “to prove that he cannot perform his prior relevant work either as actually

6

7

2 The ALJ additionally “[did] not find [Plaintiff’s] other impairments of restless leg

8

syndrome, obstructive sleep apnea, and chronic insomnia to be disabling because

9

[Plaintiff] was able to work with the conditions before the alleged onset date. His

10

prior diagnostic sleep study was administered as early as 2008 and revealed

11

moderate sleep apnea. [Plaintiff] continued to work for about eight years thereafter

12

until he had his skiing accident.” Tr. 21 (citing Tr. 312). However, as noted by

13

Plaintiff, “his last work consisted of accommodated employment, as he called out

14

from work multiple times per month on average due to lack of sleep and extreme

15

fatigue in 2015.” ECF No. 12 at 14. Moreover, Plaintiff's work history and

16

activities prior to the alleged onset date are of limited probative value. See, e.g.,

17

Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008).

18

Regardless, as discussed in detail above, any error is harmless because the ALJ’s

19

ultimate rejection of Plaintiff’s symptom claims because he failed to comply with

20

treatment recommendations was supported by substantial evidence. See

21

Carmickle, 533 F.3d at 1162-63.

1 performed or as generally performed in the national economy.” Carmickle, 533

2 F.3d at 1166 (citing Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002)

3 (internal quotation marks omitted)). Past relevant work is work that was “done

4 within the last 15 years, lasted long enough for [claimant] to learn to do it, and was

5 substantial gainful activity.” 20 C.F.R. §§ 404.1565(a), 416.965(a). Here, at step

6 four, the ALJ found that Plaintiff was capable of performing past relevant work as

7 a mill operator. Tr. 22. More specifically, the ALJ found that Plaintiff

8 reported working for a mill from March 2000 to June 2002, again from

October 2002 to January 2004, and again from September 2011 to July

9 2012. Thus, [Plaintiff] performed such work within the last 15 years at

his most recent mill job. This job has an SVP level of six, which

10 requires one to two years of experience. While [Plaintiff] performed

this work for less than one year within the last 15 years, he has over

11 four years of experience at this job overall (see DI 25005.015 directing

that ‘[i]f any portion of the period the claimant performed past work

12 extends into the relevant 15-year period, the work is in the relevant

period. If it meets the other criteria for PRW, consider it at step 4 of

13 the sequential evaluation.’). [Plaintiff] earned $13,354.70 from this job

in 2012, which is over substantial gainful activity for the entire year

14 even though [Plaintiff] only worked until July 2012. Thus, [Plaintiff’s]

job as a mill operator meets all three requirements of past relevant work.

15

Tr. 22-23 (citing Tr. 188, 204-10).

16

Plaintiff argues that DI 25005.015 “concerns a continuous period of one job

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extending into the 15-year time period, with the following example: ‘The claimant

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worked as a cashier from 01/20/96 to 12/10/2000. If the DDS adjudicates the case

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on 1/20/15, the claimant’s cashier job is within the relevant period.’ The instant

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case is readily distinguishable, as [Plaintiff] worked as a mill operator for an

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1 isolated timeframe (September 2011 to July 2012) of less than one year during the

2 relevant 15-year period. The ALJ is incorrect to add on [Plaintiff’s] remote mill

3 operator jobs from March 2000 to June 2002 and October 2002 to January 2004,

4 and nothing in DI 25005.15 suggests the ALJ’s determination is proper.” ECF No.

5 12 at 17 (citing DI 25005.015). The Court finds this argument unavailing for

6 several reasons. As an initial matter, while the POMS—an internal agency

7 manual—is “entitled to respect,” it “does not impose judicially enforceable duties

8 on either this court or the ALJ.” Carillo-Yeras v. Astrue, 671 F.3d 731, 735 (9th

9 Cir. 2011) (citations and internal quotation marks omitted). Regardless, the Court

10 finds that the ALJ properly found that the mill operator job satisfies the

11 requirements for past relevant work because it was done within the last 15 years,

12 lasted long enough for Plaintiff to learn to do it, and qualified as substantial gainful

13 activity. 20 C.F.R. §§ 404.1565(a).

14 First, despite any argument by Plaintiff to the contrary, the ALJ plainly did

15 not err in finding that the September 2011 to July 2012 “portion” of the period that

16 Plaintiff worked as a mill operator “extends” in to the relevant 15-year period,

17 thereby satisfying the first requirement for past relevant work because it was done

18 within the past 15 years. Second, and unchallenged by Plaintiff, the ALJ properly

19 found that the $13,354.70 that Plaintiff earned from this job in 2012 was well over

20 substantial gainful activity for the entire year “even though Plaintiff only worked

21 until July 2012.” Tr. 23. Third, and finally, the ALJ found that Plaintiff has “over

1 four years of experience at his job overall,” including the work he did just prior to

2 the relevant 15-year period, from March 2000 to June 2002, and from October

3 2002 to January 2004. Tr. 22. The entirety of Plaintiff’s argument appears to rest

4 on whether the ALJ properly included Plaintiff’s mill operator work from before

5 the relevant 15-year time period in evaluating whether Plaintiff’s work as a mill

6 operator lasted long enough for him to learn to do it, because, as noted by the ALJ,

7 the position of mill operator is an SVP level of six, which requires one to two years

8 of experience. ECF No. 12 at 17; Tr. 22. However, as noted by Defendant, the

9 same authority cited by Plaintiff in support of his argument instructs the ALJ to

10 “[c]onsider work performed prior to the relevant period to be [past relevant work]

11 when there is a continuity of skills, knowledge, and work processes between the

12 work outside the relevant period and [past relevant work].” ECF No. 16 at 17

13 (citing POMS DI 25005.015 (“work lasted long enough for the claimant to learn

14 the job if he or she learned the techniques, acquired information, and developed the

15 facility needed for average performance of the job.”); see also Social Security

16 Ruling 82–62 at *2 (Jan. 1, 1982), available at 1982 WL 31386 (“The 15-year

17 guide is intended to insure that remote work experience which could not

18 reasonably be expected to be of current relevance is not applied. . . . [I]n some

19 cases work performed prior to the 15-year period may be considered as relevant

20 when a continuity of skills, knowledge, and processes can be established between

21 such work and the individual’s more recent occupations.”)).

1 Plaintiff fails to acknowledge this instruction from the same authority cited

2 in his opening brief, and in his reply only generally contends, without citation to

3 the record, that there is “no continuity of skills, knowledge, or work processes

4 between [Plaintiff’s] mill operator jobs.” ECF No. 17 at 9. Moreover, the Court

5 notes that at the hearing Plaintiff recounted the physical requirements and duties

6 associated with the mill operator job, including the type of machine used, a step-

7 by-step outline of how he used the machine, the specific material he used and how

8 it changed during the operation of the machine, the posture he assumed while

9 doing the job, the hazards he faced in doing the mill operator job, and the safety

10 measures in place to prevent the risk of harm. Tr. 45-50. Based on the foregoing,

11 the Court finds no error in the ALJ’s finding that Plaintiff’s mill operator job

12 satisfied the requirements of past relevant work.

13 Finally, Plaintiff contends that “even assuming arguendo that the mill

14 operator job could count as past relevant work, the [vocational expert’s] testimony

15 that [Plaintiff] could perform such work as actually performed was erroneous, as

16 [Plaintiff] later testified that the job consisted of being ‘[p]retty much on your feet

17 all day,’ and the ALJ limited [Plaintiff] to six hours of standing/walking in an eight

18 hour day.” ECF No. 12 at 17-18. Plaintiff is correct that “[i]f an ALJ's

19 hypothetical does not reflect all of the claimant's limitations, the expert's testimony

20 has no evidentiary value to support a finding that the claimant can perform jobs in

21 the national economy.” Bray, 554 F.3d at 1228 (citation and quotation marks

1 omitted). However, as discussed in detail above, the ALJ’s rejection of Plaintiff’s

2 symptom claims was supported by the record and free of legal error. Moreover,

3 the Court notes that Plaintiff failed to offer any treating or examining medical

4 opinion evidence in support of his claims. The ALJ gave “great weight” to the

5 only medical opinion evidence in the record, the state agency reviewing opinions,

6 and this finding was not challenged by Plaintiff. Accordingly, the hypothetical

7 posed to the vocational expert contained the limitations reasonably identified by

8 the ALJ and supported by substantial evidence in the record. The ALJ did not err

9 at step four.

10 CONCLUSION

11 A reviewing court should not substitute its assessment of the evidence for

12 the ALJ’s. Tackett, 180 F.3d at 1098. To the contrary, a reviewing court must

13 defer to an ALJ’s assessment as long as it is supported by substantial evidence. 42

14 U.S.C. § 405(g). As discussed in detail above, the ALJ provided clear and

15 convincing reasons to discount Plaintiff’s symptom testimony, and did not err at

16 step four. After review, the Court finds the ALJ’s decision is supported by

17 substantial evidence and free of harmful legal error.

18 ACCORDINGLY, IT IS HEREBY ORDERED:

19 1. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is DENIED.

20 2. Defendant’s Motion for Summary Judgment, ECF No. 16, is

21 GRANTED.

1 The District Court Executive is hereby directed to enter this Order and

2 provide copies to counsel, enter judgment in favor of the Defendant, and CLOSE

3 the file.

4 DATED July 1, 2021.

5

s/ Rosanna Malouf Peterson

6 ROSANNA MALOUF PETERSON

United States District Judge

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