Case 2:21-cv-02381-GJS Document 22 Filed 08/24/22 Page 1 of 11 Page ID #:2097

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

11 MICHAEL L.,1 Case No. 2:21-cv-02381-GJS

12 Plaintiff

13 v. MEMORANDUM OPINION AND

ORDER

14 KILOLO KIJAKAZI, Acting Commissioner 15 of Social Security, 16 Defendant.

17 I. PROCEDURAL HISTORY 18 Plaintiff Michael L. (“Plaintiff”) filed a complaint seeking review of the 19 decision of the Commissioner of Social Security denying his applications for 20 Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). 21 The parties filed consents to proceed before the undersigned United States 22 Magistrate Judge [Dkts. 11 and 12] and briefs [Dkt. 18 (“Pltf. Br.”) and Dkt. 21 23 (“Def. Br.”)] addressing disputed issues in the case. The matter is now ready for 24 decision. For the reasons discussed below, the Court finds that this matter should be 25 affirmed. 26

27 1 In the interest of privacy, this Order uses only the first name and the initial of the last name of the non-governmental party in this case. 28 Case 2:21-cv-02381-GJS Document 22 Filed 08/24/22 Page 2 of 11 Page ID #:2098

1 II. ADMINISTRATIVE DECISION UNDER REVIEW 2 Plaintiff filed applications for SSI and DIB alleging disability as of June 26, 3 2017. [Dkt. 15, Administrative Record (“AR”), 201-203.] Plaintiff’s applications 4 were denied initially, on reconsideration, and after a hearing before Administrative 5 Law Judge (“ALJ”) Bruce T. Cooper. [AR 1-6, 31-41.] 6 Applying the five-step sequential evaluation process, the ALJ found that 7 Plaintiff was not disabled. See 20 C.F.R. §§ 416.920(b)-(g)(1). At step one, the 8 ALJ found that Plaintiff had not engaged in substantial gainful activity since June 9 26, 2017, the alleged onset date. [AR 33.] At step two, the ALJ found that Plaintiff 10 suffered from severe impairments including diabetes, seizures, status post 11 craniotomy (benign brain tumors/panhypopitutarism), and obesity. [AR 34.] The 12 ALJ determined at step three that Plaintiff did not have an impairment or 13 combination of impairments that meets or medically equals the severity of one of 14 the listed impairments. [AR 35.] 15 Next, the ALJ found that Plaintiff had the residual functional capacity 16 (“RFC”) to perform a restricted range of sedentary work, including:

17 lifting 10 pounds occasionally and less than 10 pounds frequently, 18 carrying 10 pounds occasionally and less than 10 pounds frequently, sitting for six hours, standing for two hours, and walking for two hours, 19 [claimant] needs a singlepoint cane for prolonged ambulation (greater 20 than 100 yards or more than a block to assist with balance), can push/pull as much as can lift/carry, can climb ramps and stairs 21 occasionally, can never climb ladders, ropes, or scaffolds, can balance 22 occasionally, stoop occasionally, kneel occasionally, crouch occasionally, and crawl occasionally, can never work at unprotected 23 heights and never work around moving mechanical parts, and can never 24 operate a motor vehicle. 25 [AR 35.] 26 Applying this RFC, the ALJ found at step four that Plaintiff could not 27 perform his past relevant work given the limitations in the RFC findings. [AR 39.] 28 2 Case 2:21-cv-02381-GJS Document 22 Filed 08/24/22 Page 3 of 11 Page ID #:2099

1 However, at step five, the ALJ concluded that Plaintiff is able to perform other work 2 that exists in significant numbers in the economy. [AR 39.] Plaintiff sought review 3 of the ALJ’s decision, which the Appeals Council denied, making the ALJ’s 4 decision the Commissioner’s final decision. [AR 1-6.] This appeal followed. 5 Plaintiff raises the following issues challenging the ALJ’s findings and 6 determination of non-disability: 7 1. Whether the ALJ properly considered the credibility of Plaintiff’s 8 testimony; and 9 2. Whether the final decision of the Commissioner is invalid because it arose 10 from an unconstitutional administrative process. 11 12 III. GOVERNING STANDARD 13 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 14 determine if: (1) the Commissioner’s findings are supported by substantial 15 evidence; and (2) the Commissioner used correct legal standards. See Carmickle v. 16 Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Brewes v. Comm’r 17 Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012) (internal citation omitted). 18 “Substantial evidence is more than a mere scintilla but less than a preponderance; it 19 is such relevant evidence as a reasonable mind might accept as adequate to support a 20 conclusion.” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 21 2014) (internal citations omitted). 22 The Court will uphold the Commissioner’s decision when the evidence is 23 susceptible to more than one rational interpretation. See Molina v. Astrue, 674 F.3d 24 1104, 1110 (9th Cir. 2012). However, the Court may review only the reasons stated 25 by the ALJ in his decision “and may not affirm the ALJ on a ground upon which he 26 did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court will not 27 reverse the Commissioner’s decision if it is based on harmless error, which exists if 28 the error is “inconsequential to the ultimate nondisability determination, or if despite 3 Case 2:21-cv-02381-GJS Document 22 Filed 08/24/22 Page 4 of 11 Page ID #:2100

1 the legal error, the agency’s path may reasonably be discerned.” Brown-Hunter v. 2 Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations 3 omitted). 4 IV. DISCUSSION 5 1. The ALJ Adequately Rejected Plaintiff’s Subjective Complaints 6 In his first issue, Plaintiff argues the ALJ failed to articulate legally sufficient 7 reasons for rejecting his subjective symptom testimony. [Pltf.’s Br. at 3-15.] 8 Specifically, Plaintiff argues that the ALJ erred in determining that his daily 9 activities, which include daily walks for 40 to 50 minutes, driving, and riding his 10 bike for exercise, do not contradict his testimony nor demonstrate that he is capable 11 of full-time work. [Pltf.’s Br. at 9.] Plaintiff requests reversal and remand for 12 payment of benefits or, in the alternative, remand for further administrative 13 proceedings. [Pltf.’s Br. at 15-16.] Defendant asserts that the ALJ’s decision 14 should be affirmed. [Def. Br. at 15.] 15 Upon a thorough review of the record, including the ALJ’s decision, the 16 Court finds no legal error in the ALJ’s assessment of Plaintiff’s testimony. 17 A. Legal Standard 18 In evaluating a claimant’s subjective symptom testimony, an ALJ must 19 engage in a two-step analysis. See Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 20 (9th Cir. 2007). “First, the ALJ must determine whether the claimant has presented 21 objective medical evidence of an underlying impairment which “could reasonably 22 be expected to produce the pain or other symptoms alleged.” Id. (quoting Bunnell 23 v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). And second, if the 24 claimant meets the first test and there is no evidence of malingering, the ALJ can 25 only reject the claimant’s testimony about the severity of the symptoms if she gives 26 “specific, clear and convincing reasons” for the rejection. Smolen v. Chater, 80 F.3d 27 1273, 1281 (9th Cir. 1996)). “At the same time, the ALJ is not required to believe 28 every allegation of [symptoms], or else disability benefits would be available for the 4 Case 2:21-cv-02381-GJS Document 22 Filed 08/24/22 Page 5 of 11 Page ID #:2101

1 asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).” Molina, 674 F.3d at 2 1112 (citation and internal quotations omitted). 3 Because there is no allegation of malingering and the ALJ found that 4 “claimant’s medically determinable impairments could reasonably be expected to 5 cause the alleged symptoms,” the ALJ’s reasons must be clear and convincing. 6 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). [AR 25]. Even if “the 7 ALJ provided one or more invalid reasons for disbelieving a claimant’s testimony,” 8 if he “also provided valid reasons that were supported by the record,” the ALJ’s 9 error “is harmless so long as there remains substantial evidence supporting the 10 ALJ’s decision and the error does not negate the validity of the ALJ’s ultimate 11 conclusion.” Molina, 674 F.3d at 1115. 12 B. Administrative Hearing Testimony 13 At the administrative hearing on May 6, 2020, Plaintiff testified about his 14 history of a benign brain tumor, seizures, and diabetes. [AR 92-134.] At the start of 15 the hearing, impartial medical expert Steven Goldstein, M.D., testified before the 16 ALJ to his opinion of Plaintiff’s impairments. [AR 96.] Upon reviewing the record, 17 Dr. Goldstein testified that in June 2017 Plaintiff underwent surgery for a 18 “craniopharygioma” “above his pituitary gland.” [AR 98.] Months after the 19 surgery, Plaintiff had two seizures in November 2017 for which he was prescribed 20 Keppra, a preventative seizure medication. [AR 98.] Following November 2017, 21 Plaintiff has not had any recurrent seizures. [AR 98.] Because Plaintiff is stable on 22 his seizure medication, Dr. Goldstein testified that Plaintiff’s most pressing 23 impairment, at the time of the hearing, was his uncontrolled diabetes. [AR 100.] 24 According to Dr. Goldstein, at some points, Plaintiff’s blood sugar levels were over 25 14, a dangerously high level that could require hospitalization. [AR 104.] But at 26 other times, Plaintiff’s blood sugar levels were as low as 8. [AR 103.] Dr. 27 Goldstein testified that “if [Plaintiff’s] diabetes was under control, he should at least 28 be able to function at a light level of activity.” [AR 102.] 5 Case 2:21-cv-02381-GJS Document 22 Filed 08/24/22 Page 6 of 11 Page ID #:2102

1 Following Dr. Goldstein’s testimony, the ALJ questioned Plaintiff about his 2 compliance with his diabetes treatment. [AR 108.] The ALJ inquired as to why 3 Plaintiff experienced periods where his A1C levels varied widely. [AR 107-108.] 4 Plaintiff explained that he was unaware of his diabetes diagnosis until his 2017 brain 5 surgery. Because he was diagnosed while receiving treatment for his brain tumor, 6 Plaintiff testified that doctors failed to fully inform him “how to inject” his insulin. 7 [AR 108.] The ALJ inquired further why at some points Plaintiff’s A1C levels were 8 about “8.5 which is much better,” but at other times his levels spiked to “13.5, 9 which is pretty high?” [AR 108.] Plaintiff responded, “I don’t know why.” [AR 10 109.] 11 When asked about his diabetes treatment, Plaintiff testified that Dr. Rambod 12 Amani initially served as his primary Endocrinologist. [AR 110.] Plaintiff testified 13 that Dr. Amani placed him on a diet, that Plaintiff follows, although he finds it 14 difficult to comply when he is “out on the road.” [AR 111-112.] The ALJ followed 15 up by asking Plaintiff about instances in the record where Plaintiff skipped meals 16 causing him to miss his insulin injections. [AR 112.] Plaintiff responded that his 17 eating schedule is inconsistent because when he has a late breakfast, that causes him 18 to feel full far beyond lunch time. [AR 112.] 19 Plaintiff testified further that he had disagreements with Dr. Amani about his 20 course of treatment, including the amount of his insulin injection (AR 109) and the 21 form of his prescribed testosterone medication. [AR 115.] Because Plaintiff had 22 “some issues” with Dr. Amani, he now sees a new doctor for telemedicine 23 appointments. [AR 110-111.] 24 C. The ALJ’s Findings 25 In rejecting Plaintiff’s subjective symptom limitations, the ALJ opined as 26 follows: The claimant’s current impairment/allegations are rooted in poorly 27 controlled diabetes, but the uncontrollable diabetes is directly due to the 28 claimant’s lack of complete compliance with treatment in handling his 6 Case 2:21-cv-02381-GJS Document 22 Filed 08/24/22 Page 7 of 11 Page ID #:2103

diet and skipping insulin while missing meals. This lack of complete 1 compliance appears in December 2018 up through December 2019. 2 While compliant with treatment, the claimant lowered his hemoglobin 3 A1C and had his diabetes under better control. The claimant’s argument that the medications are not effective fails to acknowledge his 4 own significant and substantial lack of complete compliance. 5 Despite Dr. Amani’s recommendation, the claimant did not want to 6 increase the insulin nor add any oral diabetic medicine for better blood 7 sugar control. The claimant’s lack of complete compliance with treatment eventually led to arguments with his endocrinologist. 8 The claimant’s overall treatment history is also inconsistent with his 9 allegations and supports the residual functional capacity given above. 10 In January 2019, the claimant stated that he felt well and on 11 examination appeared alert with unremarkable findings. In October 2019, the claimant was overall doing well. He was ambulating without 12 difficulty. He had had no new numbness, tingling, or weakness. His 13 strength was 5/5 in the bilateral upper and lower extremities. His sensation was intact. In April 2020, the claimant’s finger sticks showed 14 blood sugars less than 300, which according to the claimant had 15 improved. 16 In sum, the objective evidence fails to establish that the claimant is 17 unable to perform all work activity as he alleges. In fact, the lack of such evidence to substantiate his claims undercuts his statements 18 regarding his subjective complaints. By limiting the claimant to the 19 residual functional capacity described above, his substantiated 20 impairments are fully accommodated. 21 The claimant’s activities of daily living are not corroborative of his alleged degree of impairment and further support the residual 22 functional capacity given above. In November 2017, the claimant was 23 able to drive himself back and forth to radiotherapy. In April 2018, the 24 claimant walked the dog for 40 to 50 minutes five to seven days per week. In May 2018, the claimant walked and talked to his neighbor. In 25 April 2020, the claimant was riding his bike for exercise. The claimant 26 testified that he did not follow diet recommendations when he was on the road. He also acknowledged that he did not have consistent eating 27 times. 28 7 Case 2:21-cv-02381-GJS Document 22 Filed 08/24/22 Page 8 of 11 Page ID #:2104

These factors suggest that the claimant’s conditions are not as severe as 1 he alleges. Accordingly, his allegations of debilitating symptoms are 2 less than persuasive/merit less weight. Thus, he does not have 3 limitations beyond those stated in the residual functional capacity given above. 4 [AR 37 (internal citations omitted.)] 5 6 D. Analysis 7 Here, the ALJ gave at least three reasons to reject Plaintiff’s credibility: (1) 8 Plaintiff had an unexplained failure to follow his prescribed treatment plan; (2) 9 inconsistencies between Plaintiff’s testimony and his daily activities; and (3) 10 inconsistency with the objective medical evidence. 11 The first reason the ALJ gave for discounting Plaintiff’s testimony was his 12 noncompliance with his prescribed treatment plan despite recommendations that his 13 impairments could be effectively treated. This reason was clear and convincing. 14 For example, the ALJ noted that despite recommendations from Endocrinologist, 15 Dr. Amani, Plaintiff did not want to increase his insulin nor add oral diabetic 16 medication. [AR 37.] Specifically, during an October 14, 2019 appointment, Dr. 17 Amani noted that Plaintiff “does not want to increase the insulin nor add any Oral 18 diabetic medicine for better blood sugar control.” [AR 1891.] Dr. Amani noted 19 that, in response to recommendations that Plaintiff increase his medication, Plaintiff 20 became “loud in the Office” and he accused Dr. Amani of receiving a “kick back 21 from the Pharmaceutical company” as the reason why Dr. Amani prescribed “more 22 medicine.” [AR 1891.] Dr. Amani reported in Plaintiff’s treatment notes that 23 Plaintiff “was very upset about the way that Dr. Amani filled [out Plaintiff’s] DMV 24 form regarding his blood sugars and uncontrolled diabetes.”2 [AR 1891.] Because 25

26 2 On October 7, 2019, Dr. Amani completed Plaintiff’s Department of Motor Vehicles “Driver Medical Evaluation.” [AR 1913-1917.] Dr. Amani noted that 27 Plaintiff “has uncontrolled diabetes;” “he doesn’t follow diet, [he] sometimes skips insulin because [he misses] meals,” and “[Plaintiff] did not have [a] recent diabetic 28 eye exam.” [AR 1916 -1917.] 8 Case 2:21-cv-02381-GJS Document 22 Filed 08/24/22 Page 9 of 11 Page ID #:2105

1 of Plaintiff’s disruptive outburst, Dr. Amani contacted Plaintiff’s primary care 2 physician and requested that Plaintiff be assigned to a different Endocrinologist. Dr. 3 Amani also informed Plaintiff that due Plaintiff’s behavior, he could no longer offer 4 services to Plaintiff because Plaintiff “does not want to follow recommendations and 5 [he accuses] Dr. Amani [while] using fowl [sic] language.” [AR 1891.] The ALJ 6 also noted that Plaintiff’s lack of compliance was evident prior to his incident with 7 Dr. Amani as the record demonstrated noncompliance from December 2018 to 8 December 2019. [AR 37, 963, 988, 1908, 1956.] 9 Overall, the ALJ found Plaintiff’s unwillingness to improve his condition and 10 his repeated failure to comply with his physician’s recommendations undermined 11 his credibility which is a valid reason for discounting Plaintiff’s self-reported 12 complaints about the severity of his symptoms. See Tommasetti v. Astrue, 533 F.3d 13 1035, 1039 (9th Cir. 2008) (ALJ may consider “unexplained failure to seek 14 treatment or to follow a prescribed course of treatment”); see also Warre v. Comm’r 15 of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be 16 controlled effectively with medication are not disabling for the purpose of 17 determining eligibility for SSI benefits.”). Plaintiff does not address the ALJ’s 18 findings related to non-compliance and improvement with treatment, let alone argue 19 those findings are unsupported by substantial evidence. Accordingly, the Court 20 finds that Plaintiff’s non-compliance, as detailed by the ALJ, was a particularly 21 compelling reason to afford Plaintiff’s subjective statements less weight. This is a 22 clear and convincing reason for finding Plaintiff less than fully credible. 23 Next, the ALJ also performed a thorough review of the medical evidence and 24 detailed why the objective findings were wholly inconsistent with Plaintiff’s alleged 25 limitations. For example, the ALJ noted that there were several instances in the 26 record where Plaintiff reported doing well. [AR 37.] In January 2019, Plaintiff 27 stated that he felt well, and examination findings were unremarkable. [AR 1802.] 28 In October 2019, Plaintiff’s Neurologist reported that Plaintiff was ambulating 9 Case 2:21-cv-02381-GJS Document 22 Filed 08/24/22 Page 10 of 11 Page ID #:2106

1 without difficulty and doing well overall: he had had no new numbness, tingling, or 2 weakness; his strength was 5/5 in all extremities; and his sensation was intact. [AR 3 37, 1894.] In April 2020, Plaintiff’s finger sticks showed blood sugars less than 4 300, which, according to Plaintiff, was an improvement. [AR 37, 1972.] The ALJ 5 correctly found that this substantial evidence was not in keeping with Plaintiff’s 6 allegations of total disability. Although lack of objective evidence supporting a 7 claimant’s symptom complaints cannot be the sole basis for discounting them, Fair 8 v. Bowen, 885 F.2d 597, 602 (9th Cir. 1989), the ALJ may consider it as a factor in 9 the subjective complaint analysis, Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 10 2005). See also Morgan v. Comm’r, 169 F.3d 595, 599-600 (9th Cir. 1999) (an ALJ 11 properly considered conflict between a claimant’s subjective complaints and the 12 medical evidence and found that the latter did not support the former); Odle v. 13 Heckler, 707 F.2d 439, 440 (9th Cir. 1983) (in evaluating subjective complaints, an 14 ALJ can consider evidence that treatment produced “a fair response”). 15 Finally, the ALJ also discussed Plaintiff’s daily activities. [AR 37.] 16 However, the Court need not address whether this additional reason was valid 17 because even assuming that it was not, any error was harmless in light of the other 18 legally sufficient reasons for the ALJ’s determination. See Molina, 674 F.3d at 1115 19 (where one or more reasons supporting ALJ’s credibility analysis are invalid, error 20 is harmless if ALJ provided other valid reasons supported by the record); Batson v. 21 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (even if the record 22 did not support one of the ALJ’s stated reasons for disbelieving a claimant’s 23 testimony, the error was harmless where ALJ provided other valid bases for 24 credibility determination). 25 Accordingly, reversal is not warranted based on the ALJ’s consideration of 26 Plaintiff’s testimony regarding the nature and severity of his symptoms. 27 2. Unconstitutional Administrative Process 28 The second issue raised by Plaintiff is whether the final decision arises from 10 Cas@ 2:21-cv-02381-GJS Document 22 Filed 08/24/22 Page 11lof11 Page ID #:2107

1 || an unconstitutional administrative process that requires remand for a new hearing. 2 || The Ninth Circuit’s recent opinion in Kaufmann v. Kijakazi, 32 F.4th 843 (9th Cir. 3 || 2022), decided after the briefs in this case were filed, is dispositive of this issue. In 4 || Kaufmann, the Ninth Circuit held that the removal provision in the statute governing 5 || the President’s removal authority over the Commissioner of Social Security, 42 6 || U.S.C. § 902(a)(3), was unconstitutional and severable. /d. at 848. In deciding the 7 || appropriate remedy for the plaintiff, whose appeal to the Appeals Council was 8 || denied while former Commissioner Saul was serving under the unconstitutional 9 || removal statute, the court stated that “[a] party challenging an agency’s past actions 10 || must [] show how the unconstitutional removal provision actually harmed the 11 || party[.]” /d. at 849. Here, as in Kaufmann, Plaintiff has not presented any evidence 12 || or articulated a plausible theory to show that the removal provision caused him any 13 || actual harm. See id. at 849-50; Rhene N. v. Kijakazi, No. EDCV 21-00160 KS, 2022 14 || U.S. Dist. LEXIS 134740 (C.D. Cal. July 28, 2022). Absent a showing of actual 15 || harm, the Court will not reverse the SSA’s decision. See Kaufmann, 32 F.4th at 849 16 || (‘[UJnless a claimant demonstrates actual harm, the unconstitutional provision has 17 || no effect on the claimant’s case.”). Thus, reversal on this ground is not warranted. 18 Vv. CONCLUSION 19 For all of the foregoing reasons, IT IS ORDERED that the decision of the 20 || Commissioner finding Plaintiff not disabled is AFFIRMED. 21 IT IS SO ORDERED. 22 23 || DATED: August 24, 2022 24 25 GAIL J. STANDISH

UNITED STATES MAGISTRATE JUDGE

26 27 28 11