Stearns v. Kijakazi

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 RICHARD S., Case No.: 23-cv-98-KSC 12 Plaintiff, ORDER REVIEWING FINAL 13 v. DECISION OF THE COMMISSIONER OF SOCIAL 14 KILOLO KIJAKAZI, Acting SECURITY Commissioner of Social Security, [15] Defendant. [20] Plaintiff filed this action challenging the final decision of the Commissioner of [21] Social Security denying plaintiff’s claim for benefits. Doc. No. 1. This Court directed the [22] parties to explore informal resolution of the matter through the meet-and-confer process, [23] but the parties were unable to resolve the case on their own. Doc. Nos. 12, 13. Having [24] reviewed the parties’ briefing and the Administrative Record (“AR”), the Court AFFIRMS [25] the decision of the Commissioner in this matter. [26] // [27] // [28] 1 I. BACKGROUND 2 This case was heard by an Administrative Law Judge (“ALJ”) following a voluntary 3 remand from the United States District Court for the Southern District of California. AR 4 1227; Stearns v. Berryhill, 19-cv-761-RBB, Doc. No. 16 (S.D. Cal. Nov. 12, 2019).1 5 Plaintiff, represented by counsel, appeared before the ALJ. See id. Plaintiff’s attorney and 6 the ALJ both examined plaintiff at the hearing, and the ALJ received testimony from a 7 vocational expert. See id. After reviewing the documentary evidence in the record and 8 hearing the witnesses’ testimony, the ALJ ultimately concluded plaintiff was not disabled. 9 AR 1237. 10 The ALJ’s decision followed the five steps prescribed by applicable regulations 11 under which the ALJ must sequentially determine (1) if the claimant is engaged in 12 substantial gainful employment; (2) whether the claimant suffers from a “severe” 13 impairment; (3) if any impairment meets or is medically equal to one of the impairments 14 identified in the regulatory Listing of Impairments; (4) the claimant’s residual functional 15 capacity (“RFC”) and whether the claimant can perform any past relevant work; and (5) 16 whether a claimant can make an adjustment to other work based on his or her RFC. See 20 17 C.F.R. § 404.1250 (a)(4); 12-28-29. The ALJ’s evaluation ends if at any individual step the 18 ALJ finds the claimant is or is not disabled. See 20 C.F.R. § 404.1250 (a)(4). 19 The ALJ found plaintiff’s date last insured (“DLI”) was June 30, 2013. AR 1229. At 20 step one, the ALJ did not determine whether plaintiff had engaged in any substantial gainful 21 activity between the alleged onset of disability and his DLI. AR 1230. The ALJ noted 22 plaintiff had engaged in some work activity, but did not determine whether that counted as 23 substantial gainful activity. Id. Instead, the ALJ reserved deciding the issue because there 24 was another “valid basis for denying” plaintiff’s application for benefits. Id. At step two, [26] 27 1 All citations to “AR” are to the Administrative Record in this matter [Doc. No. 11], and are paginated accordingly. Any other citations to the Court’s docket will reflect [28] 1 the ALJ found plaintiff had two severe impairments: “complex migraine headaches with 2 acute migraine mimicking a stroke like episode and degenerative disc disease.” Id. The 3 ALJ found plaintiff had the following non-severe impairments: “obstructive sleep apnea, 4 Eustachian tube dysfunction with otitis medial, piriformis syndrome, knee pain, and chest 5 pain.” Id. At step three, the ALJ found none of plaintiff’s impairments met or exceeded the 6 listings of 20 CFR Part 404, Subpart P, Appendix 1. Id. at 1231 . 7 At step four, the ALJ found plaintiff “had the residual functional capacity to perform 8 light work as defined in 20 CFR 404.1567(b) . . . performing routine, noncomplex tasks” 9 with the following limitations: “occasional lifting of 20 pounds, frequent lifting of 10 10 pounds; standing and/or walking for six hours in an eight-hour workday; sitting for six 11 hours in an eight-hour workday; no working around unprotected heights or dangerous 12 machinery; no climbing ladders, ropes, or scaffolds; [and] no exposure to temperature 13 extremes.” AR 1231-35. The ALJ also found plaintiff could not perform any past relevant 14 work. AR 1235-36. At step five, the ALJ found plaintiff’s ability to “perform all or 15 substantially all of the requirements of light work” was “impeded by additional 16 limitations,” but there were nonetheless jobs in the national economy—including ticker 17 seller, inspector, and assembler—that plaintiff could have performed. AR 1236. 18 Accordingly, the ALJ found plaintiff was not disabled between the alleged onset date of 19 January 1, 2006, and the DLI of June 30, 2013. AR 1237. 20 Following the ALJ’s unfavorable decision, plaintiff lodged exceptions to the ALJ’s 21 decision with the Appeals Council. AR 1222-23. The Appeals Council found “no reason 22 to assume jurisdiction” over the appeal and determined the ALJ’s decision was consistent 23 with the District Court Remand Order [Stearns v. Berryhill, 19-cv-761-RBB, Doc. No. 16 24 (S.D. Cal. Nov. 12, 2019)] and the applicable social security laws, rules, and regulations. 25 AR 1215-16. This appeal followed. 26 //// 27 //// 28 //// 1 II. DISPUTED ISSUES 2 Plaintiff raises only a single issue in this appeal. Doc. No. 14 at 2. He argues the ALJ 3 failed to articulate specific, clear, and convincing reasons for rejecting plaintiff’s symptom 4 testimony. Id. 5 III. STANDARD OF REVIEW 6 This Court will affirm the ALJ’s decision if (1) the ALJ applied the correct legal 7 standards; and (2) the decision is supported by substantial evidence. See Batson v. Comm’r 8 of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Under the substantial 9 evidence standard, the Commissioner's findings are upheld if supported by inferences 10 reasonably drawn from the record. Id. the Court will defer to the Commissioner if there is 11 evidence in the record to support more than one rational interpretation. Id. 12 Even if the ALJ makes an error, this Court can nonetheless affirm the denial of 13 benefits if such error was “harmless, meaning it was ‘inconsequential to the ultimate 14 nondisability determination.’” Ford, 950 F.3d at 1154 (quoting Tommasetti, 533 F.3d 15 1035, 1038 (9th Cir. 2008). The Court’s ability to uphold the ALJ’s decision is limited in 16 that this Court may not make independent findings and therefore cannot uphold the 17 decision on a ground not asserted by the ALJ. See Stout v. Comm’r of the Soc. Sec. Admin., [18] 454 F.3d 1050, 1054 (9th Cir. 2006). 19 IV. ANALYSIS OF THE COMMISSIONER’S DECISION 20 Plaintiff claims only one error: the ALJ erroneously discounted plaintiff’s subjective 21 symptom testimony. See Doc. No. 14 at 2. When a Social Security claimant presents 22 objective medical evidence of an underlying impairment that might reasonably produce the 23 complained-of symptoms, and the ALJ does not find evidence of malingering, the ALJ can 24 only reject the claimant’s testimony about the severity of those symptoms for “specific, 25 clear, and convincing reasons.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) 26 (citing Brown-Hunter v. Colvin, 806 F.3d 487, 488-89 (9th Cir. 2015)). The “‘clear and 27 convincing’ standard requires an ALJ to show his work.” Smartt. v. Kijakazi, 53 F.4th 489 , 28 499 (9th Cir. 2022). “The standard isn't whether [this] court is convinced, but instead 1 whether the ALJ's rationale is clear enough that it has the power to convince.” Id. At the 2 same time, the ALJ may not merely provide a summary of record evidence and a boilerplate 3 conclusion that plaintiff’s testimony is generally inconsistent with objective medical 4 evidence. Lambert, 980 F.3d 1266 at 1277 . 5 The parties herein do not entirely agree on the scope of the ‘specific, clear, and 6 convincing reasons’ the ALJ provided for his decision to discount plaintiff’s symptom 7 testimony. Compare Doc. No. 14 at 5 with Doc. No. 16 at 4-6. Plaintiff suggests the ALJ 8 “gave three reasons: (1) the objective medical evidence indicates the claimant’s symptoms 9 stabilized with treatment; (2) progress notes indicate that his migraines were managed with 10 trials of medication, physiotherapy, and acupuncture; and (3) he had two acute incidents 11 one in 2003 and one in 2010, related to his migranine headaches, but at the follow up from 12 both these incidents, his symptoms resolved.” See Doc. No. 14 at 5. Defendant suggests 13 the ALJ based his decision on (1) the fact that plaintiff’s symptoms appeared to be managed 14 with treatment; (2) inconsistencies between plaintiff’s symptom testimony and test results 15 contained in plaintiff’s medical records; and (3) contradictions in the plaintiff’s testimony. 16 Doc. No. 16 at 4-6. 17 Based on this Court’s independent review of the record, the ALJ gave only a single 18 reason for rejecting plaintiff’s subjective symptom testimony: that his symptoms had 19 stabilized with treatment through the date last insured. See AR 1234. This is closer to the 20 way plaintiff presents the issue because plaintiff’s second and third “points” are really just 21 restatements of the idea that treatment had been effective at controlling plaintiff’s 22 migraines. Giving them separate numbers does not transform them into separate issues. 23 Defendant’s second and third points, in contrast, are not specifically analyzed in a the 24 ALJ’s actual determination, althouhg the ALJ does note some of these facts in a general 25 sense. See AR 1232-33. The ALJ did not, however, offer any of them as tending to refute 26 plaintiff’s testimony. AR 1234. When the ALJ did not offer a particular reason as a basis 27 for his decision, this Court cannot independently evaluate the record evidence as defendant 28 has done here. See Stout v. Comm’r of the Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 1 2006); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003); Pinto v. Massanari, 249 2 F.3d 840 , 847-48 (9th Cir. 2001). If this Court were to analyze defendant’s claims of 3 inconsistencies between the plaintiff’s testimony and certain medical tests, or 4 inconsistencies within his testimony itself, it would be tantamount to making independent 5 findings of fact. Because the Court’s review cannot be that extensive, the Court will 6 analyze only the ALJ’s conclusion that plaintiff’s symptoms were managed with treatment. 7 Effective treatment that controls a claimant’s symptoms can rebut subjective 8 symptom testimony. See 20 C.F.R. § 404.1529 (c)(3)(iv)-(vi); Wellington v. Berryhill, 878 9 F.3d 867, 876 (9th Cir. 2017). As the ALJ correctly noted, plaintiff had to prove he was 10 disabled prior to his DLI of June 30, 2013. See AR 1233. Plaintiff testified, in the most 11 generalized manner possible, that he was more or less incapacited by headaches three to 12 five times per month from 2004 through the date of the hearing. AR 1264, 1265-67. But, 13 as the ALJ noted, acupuncture and a Midrin prescription completely controlled plaintiff’s 14 symptoms between 2004 and 2010. AR 1233, 390-91. He was still “doing well” on Midrin 15 through September 2011 when he reported an isolated headached. AR 388. Right up until 16 three days before his DLI, plaintiff was still “doing well,” with no reports of “unusual 17 headaches.” AR 816. This is sufficient “substantial evidence” to support the ALJ’s decision 18 to reject plaintiff’s subjective symptom testimony. 19 Plaintiff indicates there is evidence in the record that he experienced some headaches 20 during the years between 2011 and his DLI. See Doc. No. 14 at 3 (citing AR 312-13, 316, 21 322-24). But these isolated instances do not rebut the ALJ’s conclusion, which is supported 22 by substantial evidence, that plaintiff’s condition was generally controlled by treatment. 23 Plaintiff also cites a body of evidence suggesting his headaches gradually worsened 24 between 2015 and the date of the hearing. See generally Doc. No. 14 at 3-4. Evidence of 25 disability post-dating the DLI can sometimes be relevant to proving the extent of disability 26 arising prior to the DLI, as long as it tends to prove the disability actually arose prior to the 27 DLI, not that an impairment worsened and the claimant became disabled after the date last 28 insured. See generally, Carillo v. Comm’r of Soc. Sec., 1:22-cv-428-SAB, 2023 WL 1 5155866, 2023 U.S. Dist. LEXIS 1400072 , at *21-23 (E.D. Cal. Aug. 10, 2023) (collecting 2 ||cases). However, the evidence plaintiff cites from after his DLI is not relevant to the 3 ||severity of his symptoms prior to the DLI in this case because it only shows how his 4 ||symptoms worsened after the DLI had passed. The Court, therefore, concludes the ALJ’s 5 || decision to reject plaintiff's subjective symptom testimony was supported by substantial 6 || evidence. 7 V. CONCLUSION 8 The final decision of the Commissioner is AFFIRMED. The Clerk of Court is 9 || directed to enter judgment in favor of defendant and terminate the case. 10 || Dated: October 3, 2023 Yy JA D Hori. Karen 8S. Crawford United States Magistrate Judge