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Klug v. Berryhill

United States District Court, D. Nevada

November 4, 2019

GARY J. KLUG, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION RE: MOTION FOR REVERSAL AND REMAND (ECF NO. 17)

          ELAYNA J. YOUCHAH, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Gary J. Klug (“Plaintiff”) seeks judicial review of the final decision of the Commissioner of the Social Security Administration (“Commissioner” or the “Agency”) denying his application for disability insurance and supplemental security income (“SSI”) under Title XVI of the Social Security Act. For the reasons stated below, the Commissioner's decision should be affirmed.

         I. BACKGROUND

         On October 29, 2013, Plaintiff filed an application for SSI alleging disability. Administrative Record (“AR”) 188-96. The Commissioner denied Plaintiff's claims by initial determination on May 20, 2014, and again upon reconsideration on August 12, 2014. AR 125-29. On October 7, 2014, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). AR 142-45. After conducting a hearing on November 16, 2015 (AR 37-76), ALJ Barry Jenkins determined Plaintiff was not disabled on January 13, 2016 (AR 17-36). On March 10, 2016, Plaintiff requested the Appeals Council review the decision by the ALJ. AR 185. The Appeals Council denied Plaintiff's request for review on April 28, 2017. AR 1-6. This civil action followed.

         II. STANDARD OF REVIEW

         The reviewing court shall affirm the Commissioner's decision if the decision is based on correct legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citation and quotation marks omitted). In reviewing the Commissioner's alleged errors, the Court must weigh “both the evidence that supports and detracts from the [Commissioner's] conclusions.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).

         “When the evidence before the ALJ is subject to more than one rational interpretation, we must defer to the ALJ's conclusion.” Batson, 359 F.3d at 1198 (citing Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995)). A reviewing court, however, “cannot affirm the decision of an agency on a ground that the agency did not invoke in making its decision.” Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (internal citation omitted). Finally, the court may not reverse an ALJ's decision based on a harmless error. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (internal citation omitted). “[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009).

         III. DISCUSSION

         A. Establishing Disability Under The Act

         To establish whether a claimant is disabled under the Social Security Act (the “Act”), there must be substantial evidence that:

(a) the claimant suffers from a medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months; and
(b) the impairment renders the claimant incapable of performing the work that the claimant previously performed and incapable of performing any other substantial gainful employment that exists in the national economy.

Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). “If a claimant meets both requirements, he or she is disabled.” Id.

         The ALJ employs a five-step sequential evaluation process to determine whether a claimant is disabled within the meaning of the Act. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520(a). Each step is potentially dispositive and “if a claimant is found to be ‘disabled' or ‘not-disabled' at any step in the sequence, there is no need to consider subsequent steps.” Tackett, 180 F.3d at 1098; 20 C.F.R. § 404.1520. The claimant carries the burden of proof at steps one through four, and the Commissioner carries the burden of proof at step five. Tackett, 180 F.3d at 1098.

         The five steps are:

Step 1. Is the claimant presently working in a substantially gainful activity? If so, then the claimant is “not disabled” within the meaning of the Social Security Act and is not entitled to disability insurance benefits. If the claimant is not working in a substantially gainful activity, then the claimant's case cannot be resolved at step one and the evaluation proceeds to step two. See 20 C.F.R. § 404.1520(b).
Step 2. Is the claimant's impairment severe? If not, then the claimant is “not disabled” and is not entitled to disability insurance benefits. If the claimant's impairment is severe, then the claimant's case cannot be resolved at step two and the evaluation proceeds to step three. See 20 C.F.R. § 404.1520(c).
Step 3. Does the impairment “meet or equal” one of a list of specific impairments described in the regulations? If so, the claimant is “disabled” and therefore entitled to disability insurance benefits. If the claimant's impairment neither meets nor equals one of the impairments listed in the regulations, then the claimant's case cannot be resolved at step three and the evaluation proceeds to step four. See 20 C.F.R. § 404.1520(d).
Step 4. Is the claimant able to do any work that he or she has done in the past? If so, then the claimant is “not disabled” and is not entitled to disability insurance benefits. If the claimant cannot do any work he or she did in the past, then the claimant's case cannot be resolved at step four and the evaluation proceeds to the fifth and final step. See 20 C.F.R. § 404.1520(e).
Step 5. Is the claimant able to do any other work? If not, then the claimant is “disabled” and therefore entitled to disability insurance benefits. See 20 C.F.R. § 404.1520(f)(1). If the claimant is able to do other work, then the Commissioner must establish that there are a significant number of jobs in the national economy that claimant can do. There are two ways for the Commissioner to meet the burden of showing that there is other work in “significant numbers” in the national economy that claimant can do: (1) by the testimony of a vocational expert [(“VE”)], or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2. If the Commissioner meets this burden, the claimant is “not disabled” and therefore not entitled to disability insurance benefits. See 20 C.F.R. §§ 404.1520(f), 404.1562. If the Commissioner cannot meet this burden, then the claimant is “disabled” and therefore entitled to disability benefits. See id.

Id. at 1098-99.

         B. Summary of ALJ's Findings

         At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since October 29, 2013, the date the application was filed. AR 22. At step two, the ALJ found that Plaintiff suffered from disorders of the cervical and lumbar spine, which are medically determinable severe impairments. Id. At step three, the ALJ found that Plaintiff's impairment did not meet or equal any “listed” impairment in 20 C.F.R., Part 404, Subpart P, Appendix 1. AR 23.

         In preparation for step four, the ALJ found that Plaintiff has the residual functional capacity (“RFC”)[1] to:

[P]erform light work as defined in 20 C.F.R. § 416.967(b).[2] Specifically, the claimant could lift and/or carry ten pounds frequently, twenty pounds occasionally; he could sit for six hours out of an eight-hour workday; he could stand and/or walk for six hours out of an eight-hour workday; he could do all postural activities occasionally except he can never climb ladders, ropes or scaffolds; he could do frequent but not continuous push/pull, reaching, fingers, and handling with the right upper extremity and foot controls with the right lower extremity; he must avoid concentrated exposure to hazardous machinery, unprotected heights, and operational control of moving machinery; [Plaintiff] is able to perform at least simple tasks typical of unskilled occupations and tasks with detailed instructions but he is unable to perform complex tasks.

Id.

         In preparation for step five, the ALJ noted that Plaintiff was “born on May 18, 1961 and was 52 years old . . . on the date the application was filed. Plaintiff subsequently changed age category to closely approaching advanced age (20 C.F.R. 416.963).” AR 27. The ALJ noted that Plaintiff had at least a high school education and is able to communicate in English. Id. The ALJ then added that “[t]ransferability of job skills is not an issue because [Plaintiff] does not have past relevant work (20 C.F.R. 416.968).” Id.

         At step five, the ALJ found that “[c]onsidering [Plainitff's] age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform (20 C.F.R. 416.969 and 416.969(a)).” Id. Specifically, the ALJ found Plaintiff could perform the “light, unskilled” occupations of “routing clerk, ” as defined in the dictionary of occupational titles (“DOT”) at DOT 222.687-022, “cashier, DOT 211.462-011, ” “mail clerk, DOT 209.687-026, ” “light duty ticket taker, DOT 344.667-010, ” and “sales clerk in a mall kiosk, DOT 211.462-010.” AR 28. The ALJ based his decision on the testimony of the vocational expert at the administrative hearing, and further determined that the vocational expert's testimony was consistent with the information contained in the DOT. Id.

         After finding “[Plaintiff] is capable of making a successful adjustment to other work that exists in significant numbers in the national economy, ” the ALJ concluded that “[a] finding of not disabled is . . . appropriate under the framework of the above-cited rules.” Id. (internal quotation marks omitted). The ALJ, therefore, found “[Plaintiff] has not been under a disability, as defined in the Social Security Act, since October 29, 2013, the date the application was filed (20 C.F.R. 416.926(g)).” Id.

         C. Summary of Medical Evidence

         1. Radiological Examinations and Findings

         On October 7, 2011, Dr. Richard Cestkowski, a physiatrist, performed a physical examination of Plaintiff and found that “[Plaintiff] is alert, cooperative, and well hydrated. He appears to be in no acute distress. Vital signs are stable. Affect is appropriate. He is oriented to person, place and time.” AR 413. A neurological examination revealed “intact” cranial nerves II-XII; “intact” and “symmetrical” reflexes in the upper and lower extremities; “Babinski downgoing bilaterally”; “[n]o colonus”; “bilateral upper and lower extremity motor and sensory examination . . . within normal limits”; “Tinel's sign [was] negative at the wrists and elbows”; “no pronator drift”; and, that Plaintiff's “Rhomberg test [was] negative.” Id. A musculoskeletal examination revealed “no pain” upon palpation of the cervical or trapezius musculature; “[n]o active cervical range of motion loss”; “no guarding”; “mild muscle spasms”; “[n]o cervical spinous process tenderness”; the “Spurling's sign [was] negative”; “pain [upon palpation of] the mid and lower thoracic as well as the mid and lower lumbar paraspinal muscles”; “mild muscle spasms appreciated with guarding to deep palpation”; “mild active thoracic and lumbar range of motion loss to all movements with pain noted at extremes”; and, that “the remainder of [Plaintiff's] musculoskeletal examination [was] within normal limits.” AR 413-14. Dr. Cestkowski assessed: (1) “acute traumatic cervical/trapezius myositis”; (2) “acute traumatic thoracic myositis”; and, (3) “acute traumatic lumbosacral myositis.” AR 414.

         On February 16, 2012, Dr. George A. Ritter, a chiropractor, completed an initial examination/evaluation report of Plaintiff. AR 424. Dr Ritter then prepared a report diagnosing Plaintiff with “cervical sprain, ” “thoracic sprain, ” “lumbar sprain, ” “headache, ” “muscle spasm, ” “dizzyness [sic], ” “facial pain, ” “chest pain, ” and “confusion.” Id. Upon visual evaluation, Dr. Ritter noted “[Plaintiff's] carriage and gait displayed no difficulty, ” “[Plaintiff's] movements were moderately slow and guarded, ” and “there was no evidence of contusion of lasceration [sic].” AR 425. Dynamometer testing revealed potential “injury to the nerve roots of the cervical spine.” AR 426. Plaintiff's “right face [was] swollen and painful”; “his right eye was half closed”; and, “he h[e]ld his head to the left and in an antalgic posture.” Id. Plaintiff's cervical range of motion was decreased in all areas due to sharp pain. AR 427. X-ray findings revealed evidence of right muscle spasm in the cervical spine, evidence of left muscle spasm in the thoracic spine, and evidence of right muscle spasm in the lumbar spine. Id. A magnetic resonance imaging (“MRI”) of Plaintiff's cranium, cervical spine, and thoracic spine showed “disc bulges at most of the vertebral levels.” AR 428. Dr. Ritter opined that Plaintiff's prognosis was “guarded.” Id. Dr. Ritter also noted that “seemingly all of the symptoms [Plaintiff] is experiencing in the head and neck are caused by displacement of the C1 vertebra. . . . When this vertebra is returned to its proper position via a chiropractic spinal adjustment, all his symptoms usually leave immediately.” Id. Dr. Ritter stated that Plaintiff would undergo “treatment . . . consist[ing] of conservative chiropractic spinal correction, chiropractic physiotherapy and observation at the interval stated under ‘treatment plan,' and decreasing in frequency as the [Plaintiff's] condition allows.” Id.

         On February 23, 2012, a MRI examination of Plaintiff's cervical spine revealed “posterior disc bulge and spur [] at the C2-3, C3-4, C-4-C5, and C5-6 levels”; “[e]arly disc degeneration” at the “C2-3, C3-4, and C4-5 levels with moderately advanced disc degeneration [at the] ¶ 6-7 [level]”; “[a]nomalous segmentation at the C3-4 level with fusion of the vertebral bodies and obliteration of the disc space;” and, “[f]oraminal narrowing . . . at [the] ¶ 4-5, C5-6, and C6-7 levels right greater than left.” AR 336. An MRI of Plaintiff's thoracic spine revealed “[e]arly disc degeneration at the T6-7 level.” AR 337. “Normal intervertebral disc height and hydration” were found at the T1-T2 through T5-T6 levels, as well as at the T7-T8 through T11-T12 level. Id.

         On March 5, 2012, Dr. Cestkowski recommended a neurological consultation with Dr. Enrico Fazzini, a neurologist and osteopathic physician. AR 401. On March 8, 2012, Dr. Fazzini performed a neurological consultation. AR 338. In making his findings, Dr. Fazzini considered the following: (1) a CT scan of Plaintiff's brain taken on February 3, 2012, which was negative; (2) a MRI scan of Plaintiff's brain taken on February 23, 2012, revealing a “non specific T2 hyper intensity measuring 5mm in the mastoid region in the right temporal bone thought to represent a cholesteatoma or mastoiditis, ” and otherwise “negative for intracerebral abnormalities”; (3) a CT scan of Plaintiff's temporal bones and mastoids taken on March 5, 2012, which revealed a “right mastoid cholesterol granuloma of developmental etiology with localized inflammatory disease”; and, (4) MRI scans of Plaintiff's cervical spine and thoracic spine taken on February 23, 2012. Id. Plaintiff reported “having severe persistent headaches since the time of [an] accident” in which he was the driver in a vehicle that was struck twice in the rear. Id. Plaintiff complained of “cervical spine pain radiating into the head and into the right arm associated with numbness, tingling, and weakness in the right arm and hand.” Id. Plaintiff “continued to complain of right temporal-orbital headaches.” AR 339. Dr. Fazzini opined that “[Plaintiff's] [p]ast medical history was unremarkable for prior or subsequent injuries or conditions affecting the cervical spine or head.” Id. A physical examination by Dr. Fazzini revealed that Plaintiff is “a well-developed male in moderate distress because of the symptoms. Examination of the head, ears, eyes, nose, and throat, and extremities was without any obvious signs of trauma.” Id.

         A neurological examination by Dr. Fazzini revealed that Plaintiff had “weakness in the right brachioradialis and handgrip, ” “intact” gait, “[p]lantar response was flexor bilaterally, ” “absent” atrophy, and “normal” muscle tone; “[s]ensation to pinprick was diminished in the right C5, C6 levels, and C7 distribution, ” “normal” vibration sensation; “[d]eep tendon reflexes were graded as 2/4 and were bilaterally symmetrical except for a reduced left biceps and brachioradialis response, ” and “deep tendon reflexes were diminished on the left side even though the patient's numbness and weakness was on the right.” Id. A spine examination “revealed moderate paraspinal muscle spasms and tenderness in the cervical and dorsal spine regions more on the right than on the left”; “[c]ervical spine ranges of motion were reduced as follows: flexion 25/50, extension 30/60, right and left rotation 40/80 and 60/80, and right and left lateral bending 20/45 and 30/45”; and, “[e]xamination of the knees and shoulders were intact.” Id.

         Dr. Fazzini performed electromyogram/nerve conductive (“EMG/NCV”) tests on Plaintiff's upper extremities, revealing “denervation present in the muscles supplied by the C6-7 nerve roots.” Id. Dr. Fazzini's impression was that Plaintiff suffers from: (1) “[c]ervical myofascial pain syndrome with central disc protrusions and radiculopathy”; (2) “[c]ervical occipital neuralgia”; (3) “[p]ostconcussive headache syndrome with migraine component”; and, (4) “[r]ight temporal mastoid cholesteatoma, which may be in part responsible for headaches.” AR 339-40. Dr. Fazzini opined that Plaintiff remained “moderately disabled as a direct consequence of the injuries sustained in the motor vehicle of 09/30/11.” AR 340. On March 21, 2012, Dr. Cestkowski recommended that Plaintiff not stand for more than ten minutes at one time because of his cervical and thoracic pain. AR 395.

         On April 9, 2012, Dr. Cestkowski completed a discharge summary at Plaintiff's request. AR 350. “[Plaintiff] was advised by neurology and orthopedic surgery to have further evaluation and treatment. However, secondary to insurance issues he was not going to pursue those recommendations currently.” Id. On the same day, Dr. Ritter found Plaintiff's cervical ranges of motion “mildly restricted in all planes”, a maximal compression test for cervical nerve root compression was “positive”; Spurling's test was “positive;” foramina compression test was “positive”; cervical distraction test was “positive”; and, “tissues [were] tender to palpation and [were] congested.” AR 446-47. Although “[Plaintiff's] severe symptoms were able to be treated with great results . . ., [Dr. Ritter noted] these results are not permanent at this time.” AR 447. Accordingly, Dr. Ritter “recommend[ed] Plaintiff continue a regimen of [chiropractic] treatment.” Id.

         On July 18, 2013, Plaintiff's chest x-ray revealed “clear” lungs and “[n]o active disease.” AR 507. On September 24, 2013, Plaintiff “arrived to the emergency room complaining of a flare [up] in his seasonal allergies.” AR 538. A physical examination performed by the emergency room staff at St. Rose Dominican Hospital-San Martin Campus revealed “normal” cranial nerves II-XI, “no maxillary facial pain to palpation, ” and otherwise unremarkable results. Id. Plaintiff was “discharged home with his mother in no acute distress, in stable condition.” AR 539.

         On March 19, 2014, Plaintiff's chest x-ray revealed “clear” lungs, “[n]o pleural effusions, ” “[n]o pneumothorax, ” “normal” heart size, “normal” pulmonary vascularity, “normal” mediastinal contour, “no hilar or mediastinal lymphadenopathy, ” and “normal” visualized thoracic spine and ribs. AR 518. On March 20, 2014, Plaintiff reported to University Medical Center “complaining of chronic neck pain.” AR 513. At this visit, Plaintiff told Dr. Jason Jones, an emergency care physician, that Plaintiff's medication “Imitrex always helps his neck and head pain. He denies any change in his symptoms.” Id. A physical examination by Dr. Jones showed “bilateral equal strength”; “nonfocal neurologic exam”; “[n]ormal mood and affect”; and, “no significant change.” Id. Dr. Jones opined that “[Plaintiff] can be discharged home.” Id. On March 21, 2014, a computerized tomography (“CT”) scan was negative for fracture or static subluxation of the cervical spine. AR 527.

         On May 27, 2014, a musculoskeletal examination by Plaintiff's treating physician Dr. Jeffrey Evenson, an internal medicine specialist, revealed “[n]o cyanosis, clubbing, or edema” in Plaintiff's extremities. AR 830. Plaintiff had “[n]ormal” range of motion, “[n]o gross deformities”, and “[e]xamination of Plaintiff's back reveal[ed] a normal curvature of the spine, full range of motion, no misalignment or tenderness, normal stability, and normal strength and tone.” Id.

         On May 30, 2014, Dr. Morton I. Hyson, a neurologist, completed a motor examination of Plaintiff and found “normal” tone, bulk, and strength, and “2 and symmetrical” deep tendon reflexes. AR 753. The sensory examination revealed diminished pinprick sensation of both lower extremities. Id. Dr. Hyson diagnosed Plaintiff with cervical disk disease, lumbar disk disease, rule out neuropathy versus radiculopathy, and cephalgia. Id.

         On June 2, 2014, Dr. David Harbrecht, an otolaryngologist, examined Plaintiff for “dizziness/vertigo.” AR 877. Dr. Harbrecht diagnosed Plaintiff with “[c]holesteatoma, ” “[d]eviated [n]asal [s]eptum, ” “[h]ypertrophy of [n]asal [t]urbinates, ” “[p]eripheral [v]ertigo, ” “[s]ensorineural [h]earing [l]oss, ” “[h]eadache, ” “[c]ervicalgia, ” and “Hepatitis B.” AR 880. On June 11, 2014, a cervical spine series done by Steinberg Diagnostic Medical Imaging Centers showed “[p]robable previous fusion” at the C3-C4 level; “[d]egenerative disk disease” at the C4-C5, C5-C6, and C6-C7 levels; “[m]ultilevel degenerative facet arthropathy”; and, “[s]table osseous relationships maintained with flexion and extension.” AR 759. A lumbar spine x-ray series showed “[n]o evidence of abnormal motion with flexion or extension”; “[m]ild facet arthropathy lumbosacral junction”; and, “[a]therosclerotic vascular disease.” AR 760. A thoracic spine x-ray series revealed “[m]ultilevel degenerative disc disease, ” and “[n]o compression fracture." AR 761. A MRI examination of the cervical spine revealed a “normal cervical lordosis”; “mild mid cervical spondylosis”; “[d]egenerative changes . . . at the C5-C6 level with mild annular bulging slightly eccentric to the right indenting the ventral thecal sac”; “no significant canal stenosis”; “[p]osterior facet and uncinate arthropathy contribut[ing] to mild bilateral neural foraminal narrowing”; “prominent right-sided uncinate arthropathy contribut[ing] to mild to moderate right neural foraminal narrowing without significant canal stenosis” at the C4-C5 levels; “mild degenerative changes at the C6-C7 level”; and, “unremarkable” remaining levels. AR 762. A MRI examination of the thoracic spine performed at the same time revealed “no significant disc bulge/hesitation”; “no evidence [of] central canal stenosis”; and, “patent” foramina. AR 764.

         On June 26, 2014, EMG/NCV examinations by Dr. Hyson showed “evidence consistent with a right carpal tunnel syndrome.” AR 742. “Otherwise, [this was a] normal electrodiagnostic stud[y] of [Plaintiff's] upper and lower extremities.” Id. Dr. Hyson diagnosed Plaintiff with “cervical disc disease, ” ...


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