Opinion
Case No. EDCV 19-2500-JPR
03-16-2021
GILBERT M., Plaintiff, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
MEMORANDUM DECISION AND ORDER AFFIRMING COMMISSIONER
I. PROCEEDINGS
Plaintiff seeks review of the Commissioner's final decision denying his application for Social Security supplemental security income benefits ("SSI"). The matter is before the Court on the parties' Joint Stipulation, filed August 11, 2020, which the Court has taken under submission without oral argument. For the reasons stated below, the Commissioner's decision is affirmed.
II. BACKGROUND
Plaintiff was born in 1969. (Administrative Record ("AR") 155.) He completed 10th grade (AR 33) and worked as a laborer and a pizza deliveryman (AR 34, 176, 184). On May 6, 2016, he applied for SSI (AR 164), alleging that he had been unable to work since March 1, 2011, because of "severe" leg and arm pain, numbness, blood clots, blurry vision, diabetes, and seizures (AR 156).
Although Plaintiff alleges that his disability began in March 2011, the earliest treatment notes in the record are from 2015. (See AR 239-40.)
After his application was denied initially and on reconsideration, he requested a hearing before an Administrative Law Judge. (AR 99-100.) A hearing was held on November 8, 2018, at which Plaintiff, represented by counsel, testified, as did his wife and a vocational expert. (AR 31-50.) In a written decision issued January 4, 2019, the ALJ found him not disabled. (AR 14-24.) On November 2, 2019, the Appeals Council denied his request for review. (AR 1-3.) This action followed.
III. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The ALJ's findings and decision should be upheld if they are free of legal error and supported by substantial evidence based on the record as a whole. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such evidence as a reasonable person might accept as adequate to support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is "more than a mere scintilla, but less than a preponderance." Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). "[W]hatever the meaning of 'substantial' in other contexts, the threshold for such evidentiary sufficiency is not high." Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). To determine whether substantial evidence supports a finding, the court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). "If the evidence can reasonably support either affirming or reversing," the reviewing court "may not substitute its judgment" for the Commissioner's. Id. at 720-21.
IV. THE EVALUATION OF DISABILITY
People are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or has lasted, or is expected to last, for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).
A. The Five-Step Evaluation Process
An ALJ follows a five-step sequential evaluation process to assess whether someone is disabled. 20 C.F.R. § 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim must be denied. § 416.920(a)(4)(i).
If the claimant is not engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a "severe" impairment or combination of impairments significantly limiting his ability to do basic work activities; if not, a finding of not disabled is made and the claim must be denied. § 416.920(a)(4)(ii) & (c).
If the claimant has a "severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments ("Listing") set forth at 20 C.F.R., part 404, subpart P, appendix 1; if so, disability is conclusively presumed and benefits are awarded. § 416.920(a)(4)(iii) & (d).
Before proceeding to step four, the ALJ must determine the claimant's residual functional capacity ("RFC"). § 416.920(e); see also Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (ALJ assesses claimant's RFC between steps three and four). The fourth step requires that the ALJ determine whether the claimant's RFC is sufficient to perform past relevant work. § 416.920(a)(4)(iv). If it is not or the claimant has no past relevant work, the Commissioner then bears the burden of establishing that he is not disabled because he can perform other substantial gainful work in the national economy, the fifth and final step of the analysis. §§ 416.920(a)(4)(v), 416.960(c)(2); Drouin, 966 F.2d at 1257.
RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 416.945(a)(1); see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989).
B. The ALJ's Application of the Five-Step Process
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since May 23, 2016, the application date. (AR 16.) At step two, he determined that Plaintiff had severe impairments of "late effects of cerebrovascular accident and status post non-ST-elevation myocardial infarction." (Id.) At step three, he found that Plaintiff's impairments did not meet or equal any of the impairments in the Listing. (AR 18.) At step four, he determined that he had the RFC to perform light work except
The application is actually dated May 6. (See AR 164.)
A "non-ST segment elevation" heart attack, or NSTEMI, "is typically less damaging" to the heart than the more common STEMI NSTEMI: What You Need to Know, Healthline, http://www.healthline.com/health/nstemi (last visited Mar. 14, 2021).
he can stand or walk for a total of two hours out of an eight-hour workday. The claimant can occasionally balance, stoop, kneel, crouch, and crawl; occasionally climb ramps and stairs; and never climb ladders, ropes, or scaffolds. He can frequently handle and finger. The claimant must avoid concentrated exposure to hazards. Further, he can perform simple routine tasks.(AR 19.)
The ALJ concluded that Plaintiff had no past relevant work but could perform three jobs available in significant numbers in the national economy. (AR 23-24.) Accordingly, he found him not disabled. (AR 24.)
V. DISCUSSION
Plaintiff alleges that the ALJ erred in assessing his subjective symptom statements. (See J. Stip. at 10-13, 17-19.) For the reasons discussed below, no error occurred.
A. Relevant Background
Plaintiff had a history of stroke, including one in 2011, when his disability allegedly began. (AR 267.) He also occasionally suffered seizures. (Id.) He acknowledged that they were well controlled with medication, however (AR 36); at the November 2018 hearing, he said he had last had one "around eight months ago" (id.), and in November 2016 he told a doctor that he had not had one for "over a year" (AR 270). He would get gout in his feet if he ate "a lot" of "spicy foods." (AR 42.)
Although Plaintiff apparently told the consulting examiner that he "first had a seizure in 2011" (AR 267), other records have him claiming that his first seizure occurred in 1999 (AR 231).
Before his 2011 stroke, Plaintiff had not worked for some time. The most he ever earned in a year was about $4300, in 2000, and he acknowledged never earning more than $1000 in any given month. (AR 34, 167.) He had no recorded income since 2004 (AR 167; see also AR 165, 170), although he reported working in July 2005 as a pizza deliveryman and from January 2004 until April 2009 as a laborer for a temp agency (AR 176, 184). In a Disability Report, he stated that he last worked on July 1, 2006, when he got "laid off." (AR 175.)
B. Plaintiff's Subjective Symptom Statements and Testimony
There is no function report in the record, but at the hearing Plaintiff testified that he couldn't work because he couldn't "move [his] left side" (AR 35), presumably as a result of the 2011 stroke. He claimed to be unable to stand for more than 10 minutes and said he "bump[ed] into things" (id.) and "sometimes" lost his balance (AR 37). He stated that he could walk "a block" but had "never tried" walking more than that. (AR 35.) He claimed to be unable to hold things with his nondominant left hand (id.) but acknowledged that he could lift and carry "maybe like 25 pounds" (AR 36). He "on and off" used a cane. (AR 38.)
In April 2016, Plaintiff told a doctor at the prison where he was then incarcerated that he was walking "2-3 laps" every day, although it's not clear how long a "lap" was, and was "do[ing] other exercises for about 1 hour a day." (AR 231.) In August 2015, a prison doctor observed that he "walk[ed] very fast without any problems" and "without any assistance" and wasn't using a cane. (AR 237.) In July 2015, he was doing "100 pushups" a day in prison along with "a few other exercises." (AR 239.)
His wife helped him with his personal hygiene and administered his medicines to him. (AR 36-37, 41.) He was "sometimes" confused or couldn't remember things. (AR 37.) He spent his days watching television and sometimes laid down and elevated his legs. (AR 38-40.) He took the trash out (AR 42) and "pick[ed] after" himself (AR 43), and he occasionally went to the grocery store with his wife, but she took the items off the shelves, put them in the cart, and carried the bags (id.).
C. The ALJ's Decision
The ALJ found Plaintiff's statements concerning the "intensity, persistence, and limiting effects of his symptoms" to be "less than fully persuasive" because of his "work history" and because his symptom allegations were "greater than expected in light of the objective evidence of record." (AR 20; see also AR 23.)
Concerning Plaintiff's work history, the ALJ noted that even though he claimed his disability began when he had a stroke in 2011, the record "revealed . . . no work activity since 2004." (AR 20.) Thus, his "continuing unemployment" may not have been "due to medical impairments." (Id.)
As to the objective medical evidence, the ALJ summarized it and observed several ways it did not support Plaintiff's symptom allegations. For example, the ALJ noted the mostly normal examination and testing findings in the record (AR 20-21) and observed that Plaintiff had on one occasion left the hospital against medical advice (AR 21; see AR 37 9; see also AR 2 94 (Plaintiff declining treatment despite claiming severe pain)). He also noted that Plaintiff had been working out with a "trainer" and "doing well" (AR 21), although it was actually a "max trainer" (AR 333, 336), a type of exercise equipment providing a cardio workout, see Bowflex Max Trainer, Bowflex, http://www.bowflex.com/max-trainer (last visited Mar. 14, 2021).
D. Applicable Law
An ALJ's assessment of a claimant's allegations concerning the severity of his symptoms is entitled to "great weight." Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989) (as amended) (citation omitted); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985) (as amended Feb. 24, 1986). "[T]he ALJ is not 'required to believe every allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).'" Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).
In evaluating a claimant's subjective symptom testimony, the ALJ engages in a two-step analysis. See Lingenfelter, 504 F.3d at 1035-36; see also SSR 16-3p, 2016 WL 1119029, at *3 (Mar. 16, 2016). "First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment '[that] could reasonably be expected to produce the pain or other symptoms alleged.'" Lingenfelter, 504 F.3d at 1036 (citation omitted). If such objective medical evidence exists, the ALJ may not reject a claimant's testimony "simply because there is no showing that the impairment can reasonably produce the degree of symptom alleged." Id. (citation omitted; emphasis in original).
If the claimant meets the first test, the ALJ may discount the claimant's subjective symptom testimony only if she makes specific findings that support the conclusion. See Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). Absent a finding or affirmative evidence of malingering, the ALJ must provide a "clear and convincing" reason for rejecting the claimant's testimony. Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (as amended) (citing Lingenfelter, 504 F.3d at 1036); Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014). The ALJ may consider, among other factors, the claimant's (1) reputation for truthfulness, prior inconsistent statements, and other testimony that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; (3) daily activities; (4) work record; and (5) physicians' and third parties' statements. Rounds v. Comm'r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (as amended); Thomas v. Barnhart, 278 F.3d 948, 958-59 (9th Cir. 2002). If the ALJ's evaluation of a plaintiff's alleged symptoms is supported by substantial evidence in the record, the reviewing court "may not engage in second-guessing." Thomas, 278 F.3d at 959.
E. Analysis
To start, the ALJ properly concluded that Plaintiff's subjective symptom statements were inconsistent with the objective medical evidence in the record, a finding Plaintiff has not challenged on appeal other than to point out that that can't serve as the only reason to discount a plaintiff's statements and testimony. (J. Stip. at 12); Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) (finding "conflict" with "objective medical evidence in the record" to be "specific and substantial reason" undermining plaintiff's allegations). Indeed, the consulting examiner opined that Plaintiff was able to perform work consistent with the RFC (see AR 270), a finding Plaintiff has not challenged on appeal and that is not contradicted by any other medical opinion in the record.
Plaintiff challenges only the ALJ's reliance on his poor work history to discount his subjective symptom statements. (J. Stip. at 10.) He claims that the ALJ only "superficially investigated" that history because Plaintiff "could have been paid 'under the table'" at jobs that did not show up in his work history. (Id. at 10-11.) He further notes that he "has a 10th grade education, does not possess any certifications, and has a criminal history," which might have made it difficult for him to get a job. (Id. at 11.)
A plaintiff's work history is properly considered in assessing his subjective symptom statements. See § 416.929(c)(3); Thomas, 278 F.3d at 959; Taylor v. Colvin, 618 F. App'x 342, 343 (9th Cir. 2015).
Plaintiff's speculative arguments concerning his work history do not warrant remand. Whether he was ever paid under the table for work such that it didn't show up on his official earnings statement doesn't undermine the ALJ's conclusion that his work history was poor because he acknowledged that he had never made more than $1000 in any given month (AR 34) and that he last looked for work in 2010 (id.) — not in the early months of 2011, before his stroke. And the only indication in the record of his being incarcerated concerns a period from late 2013 to early 2016, after the alleged disability date. (See AR 202.)
Plaintiff contends that "minimal earnings do not necessarily equate to lack of worth ethic," pointing out that under the minimum wage in effect when he was last working, $6.25 an hour, he would have earned only $250 a week "assuming a full 40-hour week." (J. Stip. at 19.) But Plaintiff acknowledged earning $7.75 an hour at least as of 2004, not the $6.25 minimum wage he now cites. (See AR 176, 185-86.) That would come out to $1240 a month for a full-time job in even the shortest month of the year, February, and yet Plaintiff acknowledged never earning more than $1000 in any given month. Thus, his speculation does not undermine the ALJ's reasoning.
Moreover, Plaintiff was represented by counsel throughout the administrative proceedings. (See AR 4-5, 31, 152.) If evidence existed that his work history was greater than the ALJ found based on the record, he could have presented that evidence to the Appeals Council. He did not. He claims that "[a]s much as [his] explanation" for his poor work history "is speculation, so too is the ALJ's negative inference." (J. Stip. at 18.) To the contrary, the ALJ relied on the record evidence showing that he had no recorded earnings after 2004, never earned more than $1000 in a month, and last looked for work in 2010, well before his stroke, to find that his statements concerning the severity of his impairments should be discounted. See DeLeon v. Saul, 812 F. App'x 529, 530 (9th Cir. 2020) (upholding ALJ's reliance on plaintiff's "poor work history, dating back to before she had children," to discount her subjective symptom statements); McClaren v. Saul, 812 F. App'x 500, 501 (9th Cir. 2020) (declining to "second-guess" ALJ's reliance on plaintiff's having "worked only sporadically even before her disability onset date" to discount subjective symptom statements).
VI. CONCLUSION
Consistent with the foregoing and under sentence four of 42 U.S.C. § 405(g), IT IS ORDERED that judgment be entered AFFIRMING the Commissioner's decision, DENYING Plaintiff's request for reversal, and DISMISSING this action with prejudice. DATED: March 16, 2021
That sentence provides: "The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing."
/s/_________
JEAN ROSENBLUTH
U.S. Magistrate Judge