Cruz v. Commissioner of Social Security, No. 4:2020cv05225 - Document 17 (E.D. Wash. 2021)

Court Description: ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Plaintiff's Motion for Summary Judgment (ECF No. 13 ) is DENIED. Defendant's Motion for Summary Judgment (ECF No. 15 ) is GRANTED. The file is CLOSED. Signed by Judge Thomas O. Rice. (LLH, Courtroom Deputy)

Download PDF

Cruz v. Commissioner of Social Security Doc. 17 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 PATRICIA C., NO. 4:20-CV-5225-TOR Plaintiff, 8 9 10 v. COMMISSIONER OF SOCIAL SECURITY, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 Defendant. 12 13 BEFORE THE COURT are the parties’ cross-motions for summary 14 judgment (ECF Nos. 13, 15). Plaintiff is represented by Chad L. Hatfield. 15 Defendant is represented by Joseph J. Langkamer. This matter was submitted for 16 consideration without oral argument. The Court has reviewed the administrative 17 record and the parties’ completed briefing and is fully informed. For the reasons 18 discussed below, the Court DENIES Plaintiff’s motion and GRANTS Defendant’s 19 motion. 20 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 2 3 4 5 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3). STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 6 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 7 limited: the Commissioner’s decision will be disturbed “only if it is not supported 8 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 9 1158–59 (9th Cir. 2012) (citing 42 U.S.C. § 405(g)). “Substantial evidence” 10 means relevant evidence that “a reasonable mind might accept as adequate to 11 support a conclusion.” Id. at 1159 (quotation and citation omitted). Stated 12 differently, substantial evidence equates to “more than a mere scintilla but less than 13 a preponderance.” Id. (quotation and citation omitted). In determining whether 14 this standard has been satisfied, a reviewing court must consider the entire record 15 as a whole rather than searching for supporting evidence in isolation. Id. 16 In reviewing a denial of benefits, a district court may not substitute its 17 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 18 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 19 rational interpretation, [the court] must uphold the ALJ’s findings if they are 20 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 2 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 3 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 4 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 5 decision generally bears the burden of establishing that it was harmed. Shinseki v. 6 Sanders, 556 U.S. 396, 409–10 (2009). 7 8 9 FIVE STEP SEQUENTIAL EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within the meaning of the Social Security Act. First, the claimant must be “unable to 10 engage in any substantial gainful activity by reason of any medically determinable 11 physical or mental impairment which can be expected to result in death or which 12 has lasted or can be expected to last for a continuous period of not less than 12 13 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s 14 impairment must be “of such severity that [he or she] is not only unable to do [his 15 or her] previous work[,] but cannot, considering [his or her] age, education, and 16 work experience, engage in any other kind of substantial gainful work which exists 17 in the national economy.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 18 The Commissioner has established a five-step sequential analysis to 19 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 20 416.920(a)(4)(i)–(v). At step one, the Commissioner considers the claimant’s ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 work activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in 2 “substantial gainful activity,” the Commissioner must find that the claimant is not 3 disabled. 20 C.F.R. § 416.920(b). 4 If the claimant is not engaged in substantial gainful activities, the analysis 5 proceeds to step two. At this step, the Commissioner considers the severity of the 6 claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from 7 “any impairment or combination of impairments which significantly limits [his or 8 her] physical or mental ability to do basic work activities,” the analysis proceeds to 9 step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy 10 this severity threshold, however, the Commissioner must find that the claimant is 11 not disabled. Id. 12 At step three, the Commissioner compares the claimant’s impairment to 13 several impairments recognized by the Commissioner to be so severe as to 14 preclude a person from engaging in substantial gainful activity. 20 C.F.R. § 15 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the 16 enumerated impairments, the Commissioner must find the claimant disabled and 17 award benefits. 20 C.F.R. § 416.920(d). 18 If the severity of the claimant’s impairment does meet or exceed the severity 19 of the enumerated impairments, the Commissioner must pause to assess the 20 claimant’s “residual functional capacity.” Residual functional capacity (“RFC”), ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 defined generally as the claimant’s ability to perform physical and mental work 2 activities on a sustained basis despite his or her limitations (20 C.F.R. § 3 416.945(a)(1)), is relevant to both the fourth and fifth steps of the analysis. 4 At step four, the Commissioner considers whether, in view of the claimant’s 5 RFC, the claimant is capable of performing work that he or she has performed in 6 the past (“past relevant work”). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is 7 capable of performing past relevant work, the Commissioner must find that the 8 claimant is not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of 9 performing such work, the analysis proceeds to step five. 10 At step five, the Commissioner considers whether, in view of the claimant’s 11 RFC, the claimant is capable of performing other work in the national economy. 12 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the Commissioner 13 must also consider vocational factors such as the claimant’s age, education, and 14 work experience. Id. If the claimant is capable of adjusting to other work, the 15 Commissioner must find that the claimant is not disabled. 20 C.F.R. § 16 416.920(g)(1). If the claimant is not capable of adjusting to other work, the 17 analysis concludes with a finding that the claimant is disabled and is therefore 18 entitled to benefits. Id. 19 The claimant bears the burden of proof at steps one through four above. 20 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 2 capable of performing other work; and (2) such work “exists in significant 3 numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 4 700 F.3d 386, 389 (9th Cir. 2012). 5 6 ALJ’S FINDINGS On April 13, 2018, Plaintiff filed an application for Title XVI supplemental 7 security income benefits, alleging a disability onset date of March 28, 2017. Tr. 8 15. The application was denied initially, and again on reconsideration. Id. 9 Plaintiff appeared at a telephonic hearing before an administrative law judge 10 (“ALJ”) on May 6, 2020. Id. At the hearing, Plaintiff amended her alleged onset 11 date to July 27, 2018. Id. On June 3, 2020, the ALJ denied Plaintiff’s claim, 12 which became the Commissioner’s final decision. Tr. 15–26. 13 At step one of the sequential evaluation analysis, the ALJ found Plaintiff had 14 not engaged in substantial gainful activity after July 27, 2018, the amended alleged 15 onset date. Tr. 18. At step two, the ALJ found Plaintiff had the following severe 16 impairments: chronic pain syndrome; fibromyalgia; history of myocardial 17 infarction; mild osteoarthritis of the left knee; right epicondylitis; depressive 18 disorder; anxiety disorder; borderline personality disorder; and ongoing substance 19 abuse and dependence. Id. At step three, the ALJ found Plaintiff did not have an 20 impairment or combination of impairments that meets or medically equals the ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 severity of a listed impairment. Id. The ALJ then found Plaintiff had a residual 2 functional capacity to perform light work with the following limitations: 3 4 5 6 7 [Plaintiff] is able to occasionally perform postural activities expect never climb ladders, ropes, or scaffolds. She can frequently handle with the left upper extremity. She should avoid concentrated exposure to extreme temperatures and vibrations, and all exposure to hazards. She is able to understand, remember, and carry out simple and routine tasks. She [is] able to maintain concentration[,] persistence and pace for two-hour interval’s [sic] between regularly scheduled breaks. She is able to handle simple changes, and brief and superficial (non-collaborative) interactions with the public and coworkers. 8 9 10 Tr. 20. At step four, the ALJ found Plaintiff did not have past relevant work. Tr. 24. 11 At step five, the ALJ found that, considering Plaintiff’s age, education, work 12 experience, and residual functional capacity, and testimony from a vocation expert, 13 there were other jobs that existed in significant numbers in the national economy 14 that Plaintiff could perform, such as housekeeping cleaner, cafeteria attendant, and 15 price marker. Tr. 24–25. The ALJ concluded Plaintiff was not under a disability, 16 as defined in the Social Security Act, from July 27, 2018, the amended alleged 17 onset date, through June 3, 2020, the date of the ALJ’s decision. Tr. 26. 18 On September 16, 2020, the Appeals Council denied review (Tr. 1–6), 19 making the ALJ’s decision the Commissioner’s final decision for purposes of 20 judicial review. See 20 C.F.R. §§ 416.1481, 422.210. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 2 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 3 her supplemental security income benefits under Title XVI of the Social Security 4 Act. Plaintiff raises the following issues for this Court’s review: 5 1. Did the ALJ properly evaluate the medical opinion evidence; 6 2. Did the ALJ properly evaluate Plaintiff’s fibromyalgia under Listing 14.09D in accordance with SSR 12-2p; 7 8 3. Did the ALJ properly consider Plaintiff’s subjective symptom testimony; and 9 4. Did the ALJ conduct an adequate analysis at step five? 10 11 12 DISCUSSION A. Medical Opinion Evidence Plaintiff argues the ALJ improperly rejected the medical opinions of Dr. 13 Rice, MD, Javier, Huerta, PA, and Dr. Green, MD. ECF No. 13 at 9, at 13. As an 14 initial matter, for claims filed on or after March 27, 2017, new regulations apply 15 that change the framework for how an ALJ must evaluate medical opinion 16 evidence. 20 C.F.R. § 416.920c; see also Revisions to Rules Regarding the 17 Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed. Reg. 5844-01 (Jan. 18, 18 2017). The ALJ applied the new regulations because Plaintiff filed her Title XVI 19 claim after March 27, 2017. See Tr. 15. 20 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 Under the new regulations, the ALJ will no longer “give any specific 2 evidentiary weight . . . to any medical opinion(s).” Revisions to Rules, 2017 WL 3 168819, 82 Fed. Reg. 5844-01, 5867–68. Instead, an ALJ must consider and 4 evaluate the persuasiveness of all medical opinions or prior administrative medical 5 findings from medical sources. 20 C.F.R. § 416.920c(a)–(b). The factors for 6 evaluating the persuasiveness of medical opinions and prior administrative medical 7 findings include supportability, consistency, relationship with the claimant, 8 specialization, and “other factors that tend to support or contradict a medical 9 opinion or prior administrative medical finding” including but not limited to 10 “evidence showing a medical source has familiarity with the other evidence in the 11 claim or an understanding of our disability program’s policies and evidentiary 12 requirements.” 20 C.F.R. § 416.920c(c)(1)–(5). 13 The ALJ is required to explain how the most important factors, 14 supportability and consistency, were considered. 20 C.F.R. § 416.920c(b)(2). 15 These factors are explained as follows: 16 17 18 19 20 (1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be. (2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 2 20 C.F.R. § 416.920c(c)(1)–(2). The ALJ may, but is not required to, explain how “the other most persuasive 3 factors in paragraphs (c)(3) through (c)(5)” were considered. 20 C.F.R. 4 § 416.920c(b)(2). However, where two or more medical opinions or prior 5 administrative findings “about the same issue are both equally well-supported . . . 6 and consistent with the record . . . but are not exactly the same,” the ALJ is 7 required to explain how “the most persuasive factors” were considered. 20 C.F.R. 8 § 416.920c(b)(2). 9 The parties dispute whether Ninth Circuit law that predates the new 10 regulations apply. ECF Nos. 16 at 20; 20 at 11. The Ninth Circuit currently 11 requires the ALJ to provide “clear and convincing” reasons for rejecting the 12 uncontradicted opinion of either a treating or examining physician. Lester v. 13 Chater, 81 F.3d 821, 830 (9th Cir. 1995). When a treating or examining 14 physician’s opinion is contradicted, the Ninth Circuit has held the medical opinion 15 can only “be rejected for specific and legitimate reasons that are supported by 16 substantial evidence in the record.” Id. at 830–31 (internal citation omitted). 17 At this time, the Ninth Circuit has not addressed whether these standards still 18 apply when analyzing medical opinions under the new regulations. For purposes 19 of the present case, the Court finds that resolution of this issue is unnecessary. See 20 Allen T. v. Saul, No. EDCV 19-1066-KS, 2020 WL 3510871, at *3 (C.D. Cal. June ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 29, 2020) (citing Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Services, 2 545 U.S. 967, 981–82 (2005) (“[T]he Court is mindful that it must defer to the new 3 regulations, even where they conflict with prior judicial precedent, unless the prior 4 judicial construction ‘follows from unambiguous terms of the statute and thus 5 leaves no room for agency discretion.’”)). 6 1. Dr. James Rice, MD 7 Plaintiff alleges the ALJ improperly rejected the opinion evidence from Dr. 8 Rice, specifically by failing to account for Dr. Rice’s assessment of Plaintiff’s 9 fibromyalgia. ECF No. 13 at 9–11. Dr. Rice filled out a medical source form in 10 March 2020 stating that Plaintiff was limited to no more than sedentary work due 11 to her intermittent pain, limited in her ability to handle with her right upper 12 extremity, and that her limitations would cause her to miss more than four days of 13 work per month. Tr. 24. The ALJ was not persuaded by Dr. Rice’s “extreme 14 opinion.” Id. The ALJ found Dr. Rice’s opinion inconsistent with Plaintiff’s 15 substantially normal physical exams that generally did not reveal any objective or 16 positive findings. Id. (citing Tr. 695, 706, 708). The ALJ also found Dr. Rice’s 17 March 2020 opinion was inconsistent with his own exam findings, which indicated 18 her pain was controlled with medication (Tr. 699). Moreover, Dr. Rice’s only 19 positive findings related to Plaintiff’s left foot pain due to a previous fracture (Tr. 20 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 700), “right lateral epicondyle pain” (id.), and tenderness to palpation of the spine 2 (Tr. 708, 712, 716). 3 Plaintiff asserts the “ALJ appears unfamiliar with fibromyalgia” but fails to 4 identify how the ALJ’s conclusions were erroneous. ECF No. 13 at 10. Plaintiff 5 briefly describes fibromyalgia as the “invisible disability” and acknowledges there 6 are diagnostic criteria for the disease but does not describe how her impairments 7 satisfy the criteria. ECF No. 13 at 10–11. Plaintiff cites to several medical records 8 that she contends are objective medical findings in support of her alleged 9 fibromyalgia disability. ECF No. 16 at 3. However, some of the records fall 10 outside the relevant timeframe and others simply do not support Plaintiff’s 11 argument. See, e.g., Tr. 715 (indicating Plaintiff presented for a “corodozone shot” 12 but “had no other issue today”); 782 (indicating Plaintiff’s pain control regimen 13 was working); 789, 795, 799 (routine follow ups to review Plaintiff’s medication 14 and pain assessment). Where the ALJ’s interpretation of the record is reasonable, 15 as it is here, it should not be second-guessed. Rollins v. Massanari, 261 F.3d 853, 16 857 (9th Cir. 2001). Additionally, the ALJ’s finding is consistent with Ninth 17 Circuit law that a medical opinion may be rejected by the ALJ if it is brief, 18 conclusory, or inadequately supported. Bray v. Comm’r of Soc. Sec. Admin, 554 19 F.3d 1219, 1228 (9th Cir. 2009). The Court finds the ALJ’s conclusion is 20 supported by substantial evidence. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 2 2. Javier Huerta, PA; Dr. Candace Green, MD In October 2017, Mr. Huerta and Dr. Green each filled out a Department of 3 Social and Health Services (“DSHS”) form describing their evaluations of 4 Plaintiff’s limitations. Tr. 614–619. Mr. Huerta opined that Plaintiff was severely 5 limited and unable to meet the demands of even sedentary work. Tr. 616. Mr. 6 Huerta estimated Plaintiff’s limitations would persist for 24 months. Id. Dr. Green 7 filled out a similar DSHS form and also opined that Plaintiff was severely limited 8 and unable to meet the demands of sedentary work and would be so limited for 9 approximately 24 months. Tr. 619. The ALJ found the opinions unpersuasive 10 because they were inconsistent with Plaintiff’s medical records that were closer in 11 proximity to her alleged onset date—the DSHS forms were filled out nine months 12 prior to the alleged onset date. Tr. 23. The ALJ also found the DSHS forms 13 lacked supportability as they were merely cursory exams and lacked any objective 14 findings (e.g., range of motion findings, straight leg resting assessment, sensory 15 exam, etc.). Tr. 23. Finally, the ALJ noted Mr. Huerta and Dr. Green’s opinions 16 were inconsistent with Plaintiff’s overall medical records. Id. 17 Plaintiff argues the DSHS forms fall within the relevant timeframe because 18 she applied for SSI on April 30, 2018 and the regulations stipulate that a claimant’s 19 “complete medical history” includes “the claimant’s medical source(s) covering at 20 least the 12-month period preceding the month in which the claimant applied for ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 disability benefits or SSI payments.” SSR 18-01P, 2018 WL 4945639, at *4; 20 2 C.F.R. § 416.912(b)(1)(ii). Plaintiff ignores the next sentence in the regulations, 3 which states that if the claimant’s alleged onset date is less than 12 months from 4 the date of the application, the complete medical history will be developed 5 beginning with the month the claimant states the disability began, unless there is 6 reason to believe the disability began sooner. Id. Plaintiff submitted her 7 application on April 30, 2018 and alleged an onset date of July 27, 2018 (Tr. 15); 8 thus, her complete medical history begins in July 2018. The DSHS forms are 9 outside the relevant timeframe. In any event, the ALJ considered the forms and 10 concluded that Mr. Huerta and Dr. Green’s opinion evidence was unpersuasive, 11 unsupported, and inconsistent. The ALJ’s opinion is reasonable and properly 12 supported by substantial evidence. 13 14 B. Listing 14.09D Plaintiff argues the ALJ failed to conduct an adequate analysis at step three, 15 specifically by failing to consider Plaintiff’s fibromyalgia under Listing 14.09D. 16 ECF No. 13 at 17. At step three, the ALJ first determines whether a claimant’s 17 impairment meets or equals an impairment in the Listing of Impairments (the 18 “Listings”). See 20 C.F.R. § 416.920(a)(4)(iii). The Listings describe specific 19 impairments that are recognized as severe enough to prevent a person from 20 engaging in substantially gainful activities. See 20 C.F.R. Pt. 404, Subpt. P, App. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 1. Each impairment is described using characteristics established through 2 “symptoms, signs and laboratory findings.” Tackett, 180 F.3d at 1099. 3 To meet an impairment, a claimant must establish she meets each of the 4 characteristics of the listed impairment. Id. To equal an impairment, a claimant 5 must establish symptoms, signs, and laboratory findings “at least equal in severity 6 and duration” to the characteristics of the listed impairment, or, if a claimant’s 7 impairment is not listed, to the impairment “most like” the claimant’s own. Id. If 8 a claimant meets or equals one of the listed impairments, the claimant will be 9 considered disabled without further inquiry. See 20 C.F.R. § 416.920(d). 10 As an initial matter, fibromyalgia is not a listed impairment; thus, the ALJ 11 must determine whether Plaintiff’s impairments medically meet or equal a listing. 12 The ALJ considered Plaintiff’s mental and physical impairments, singly and in 13 combination, as well as whether those impairments met or equaled listings 1.02, 14 12.04, 12.06, and 12.08 before concluding that Plaintiff’s impairments did not 15 meet or equal a listed impairment. Tr. 18–23. The ALJ’s explanation was further 16 developed at step four, as indicated in the findings. Tr. 18. 17 Plaintiff argues the ALJ should have considered Listing 14.09D 18 (inflammatory arthritis), which requires, inter alia, a “marked” limitation in one of 19 the following: daily living, social functioning; or completing tasks in a timely 20 manner due to deficiencies in concentration, persistence, and pace. ECF No. 13 at ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 17; 20 C.F. R. Pt. 404, Subpt. P, App1, Listing § 14.09D. Although the ALJ did 2 not explicitly address Listing 14.09D, she considered similar criteria when 3 determining if Plaintiff satisfied the “paragraph B” requirements for Listings 4 12.04, 12.06, and 12.08. Tr. 19; see 20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing § 5 12.04, ¶ B (requiring at least two of the following: marked restriction of activities 6 of daily living; marked difficulties in maintaining social functioning; or marked 7 difficulties in maintaining concentration, persistence, or pace). The ALJ concluded 8 Plaintiff’s impairments did not cause at least two “marked” limitations or one 9 “extreme” limitation; thus, Plaintiff did not satisfy the “paragraph B” criteria. 10 An “ALJ is not required to discuss the combined effects of a claimant's 11 impairments or compare them to any listing in an equivalency determination, 12 unless the claimant presents evidence in an effort to establish equivalence.” Ford 13 v. Saul, 950 F.3d 1141, 1157 (9th Cir. 2020). Here, Plaintiff did not press the ALJ 14 at the administrative hearing regarding Listing 14.09D nor did she present specific 15 evidence at the hearing to demonstrate equivalence. Even now, Plaintiff makes no 16 effort to demonstrate how her impairments medically meet or equal Listing 17 14.09D. Consequently, the ALJ’s failure to discuss Listing 14.09D was not 18 erroneous. The determination that Plaintiff’s impairments did not medically meet 19 or equal a listed impairment was supported by substantial evidence. 20 // ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 2 C. Plaintiff’s Subjective Symptom Testimony Plaintiff asserts the ALJ improperly rejected Plaintiff’s subjective symptom 3 testimony. ECF No. 13 at 18. An ALJ engages in a two-step analysis to determine 4 whether a claimant’s subjective symptom testimony can be reasonably accepted as 5 consistent with the objective medical and other evidence in the claimant’s record. 6 SSR 16-3p, 2016 WL 1119029, at *2. “First, the ALJ must determine whether 7 there is ‘objective medical evidence of an underlying impairment which could 8 reasonably be expected to produce the pain or other symptoms alleged.’” Molina, 9 674 F.3d at 1112 (quoting Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)). 10 “The claimant is not required to show that her impairment ‘could reasonably be 11 expected to cause the severity of the symptom she has alleged; she need only show 12 that it could reasonably have caused some degree of the symptom.’” Vasquez, 572 13 F.3d at 591 (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 14 2007)). 15 Second, “[i]f the claimant meets the first test and there is no evidence of 16 malingering, the ALJ can only reject the claimant’s testimony about the severity of 17 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 18 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 19 omitted). General findings are insufficient; rather, the ALJ must identify what 20 symptom claims are being discounted and what evidence undermines these claims. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)); Thomas v. 2 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently 3 explain why he or she discounted claimant’s symptom claims). “The clear and 4 convincing [evidence] standard is the most demanding required in Social Security 5 cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. 6 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 7 The ALJ is instructed to “consider all of the evidence in an individual’s 8 record,” “to determine how symptoms limit ability to perform work-related 9 activities.” SSR 16-3p, 2016 WL 1119029, at *2. When evaluating the intensity, 10 persistence, and limiting effects of a claimant’s symptoms, the following factors 11 should be considered: (1) daily activities; (2) the location, duration, frequency, and 12 intensity of pain or other symptoms; (3) factors that precipitate and aggravate the 13 symptoms; (4) the type, dosage, effectiveness, and side effects of any medication 14 an individual takes or has taken to alleviate pain or other symptoms; (5) treatment, 15 other than medication, an individual receives or has received for relief of pain or 16 other symptoms; (6) any measures other than treatment an individual uses or has 17 used to relieve pain or other symptoms; and (7) any other factors concerning an 18 individual’s functional limitations and restrictions due to pain or other symptoms. 19 SSR 16-3p, 2016 WL 1119029, at *7-8; 20 C.F.R. § 416.929(c)(3). 20 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 Here, the ALJ found Plaintiff’s impairments could reasonably be expected to 2 cause the alleged symptoms; however, Plaintiff’s statements concerning the 3 intensity, persistence, and limiting effects of those symptoms were not entirely 4 consistent with the evidence. Tr. 21. In arriving at this conclusion, the ALJ 5 considered several of the factors described above. 6 As to the intensity and persistence of Plaintiff’s impairments, the ALJ found 7 the medical record and exam findings did not support the degree of impairment 8 Plaintiff alleges. Tr. 21. In 2018, an examination of Plaintiff’s psychiatric 9 complaints related to anxiety resulted in negative findings. Id. Physical 10 examinations from 2018 revealed either normal findings or mild positive findings. 11 Id. Records from 2019 and 2020 also indicated Plaintiff’s pain symptoms were 12 well managed by medication, and exam findings were negative or mild. Id. Based 13 on the medical records, the ALJ concluded the intensity and persistence of 14 Plaintiff’s impairments were not as severe as she reported. Id. An ALJ may not 15 discredit a claimant’s symptom testimony and deny benefits solely because the 16 degree of the symptoms alleged is not supported by objective medical evidence. 17 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 18 F.2d 341, 346-47 (9th Cir. 1991); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 19 1989); Burch, 400 F.3d at 680. However, the objective medical evidence is a 20 relevant factor, along with the medical source’s information about the claimant’s ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19 1 pain or other symptoms, in determining the severity of a claimant’s symptoms and 2 their disabling effects. Rollins, 261 F.3d at 857; 20 C.F.R. § 416.929(c)(2). 3 Regarding daily activities, the ALJ noted that Plaintiff reported she could 4 perform personal hygiene, prepare meals, walk, drive a vehicle, go shopping, and 5 manage money. Tr. 22. Plaintiff also indicated she is able to work with crafts, 6 babysit her granddaughter, and care for her dog. Id. Further, Plaintiff testified at 7 the hearing that she has a total of 13 grandchildren that she babysits on a regular 8 basis. Id. The ALJ concluded Plaintiff’s ability to engage in these daily activities 9 did not support the degree of disability Plaintiff claimed. Id. While the Ninth 10 Circuit has cautioned against reliance on “certain daily activities, such as grocery 11 shopping, driving a car, or limited walking for exercise” to discount a plaintiff’s 12 symptom allegations, the ALJ here considered other factors and found additional 13 reasons for discrediting Plaintiff’s subjective symptom testimony. Vertigan v. 14 Halter, 260 F.3d 1044, 1050 (9th Cir. 2001). 15 The ALJ also considered the type, dosage, effectiveness, and side effects of 16 any medication Plaintiff took to alleviate her symptoms. The ALJ observed that 17 Plaintiff’s treatment was generally routine and conservative in nature, and that 18 Plaintiff took the appropriately prescribed medications, which were relatively 19 effective in managing Plaintiff’s symptoms, as indicated by the medical records. 20 Id. “Impairments that can be controlled effectively with medication are not ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 20 1 disabling.” Warre v. Comm’r, 439 F.3d 1001, 1006 (9th Cir. 2006) (citations 2 omitted). Finally, the ALJ noted that other factors may have contributed to Plaintiff’s 3 4 limitations and restrictions. Id. First, numerous medical reports indicated Plaintiff 5 had a history of substance abuse (e.g., Tr. 467, 628) and Plaintiff admitted to 6 ongoing marijuana use (Tr. 57–58). Tr. 21–22. Additionally, the ALJ questioned 7 whether Plaintiff’s limitations and restrictions were truly affected by an underlying 8 medical condition or whether they could be related to a lack of motivation, given 9 Plaintiff’s absence from substantial gainful employment for over 15 years. Tr. 23. 10 Focusing primarily on the substance abuse findings, Plaintiff argues the 11 ALJ’s conclusions are unsupported by the record. ECF No. 13 at 20. Plaintiff 12 ignores each of the other factors the ALJ considered in the analysis, which are all 13 properly supported by substantial evidence. Plaintiff’s own interpretation of the 14 record cannot overcome the ALJ’s properly supported conclusions. “Where 15 evidence is susceptible to more than one rational interpretation, it is the ALJ’s 16 conclusion that must be upheld.” Burch, 400 F.3d at 679 (citation omitted). Overall, the Court finds the ALJ provided clear and convincing reasons 17 18 supported by substantial evidence in the record to discount Plaintiff’s subjective 19 symptom testimony. 20 // ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 21 1 2 D. Step Five Analysis Plaintiff argues the ALJ failed to conduct an adequate analysis at step five 3 by failing to consider a more complete hypothetical. ECF No. 13 at 21. If a 4 claimant cannot perform his or her past relevant work, at step five the ALJ must 5 show there are a significant number of jobs in the national economy the claimant is 6 able to do. Tackett v. Apfel, 180 F.3d 1094, 1098–99 (9th Cir. 1999); 20 C.F.R. § 7 416.920(d)-(e). To do so, the ALJ may employ the testimony of a vocational 8 expert. Tackett, 180 F.3d at 1100–01; Osenbrock v. Apfel, 240 F.3d 1157, 1162 9 (9th Cir. 2000). The ALJ’s findings will be upheld if the weight of medical 10 evidence in the record supports the hypothetical posed by the ALJ. Martinez v. 11 Heckler, 807 F.2d 771, 774 (9th Cir. 1987); Gallant v. Heckler, 753 F.2d 1450, 12 1456 (9th Cir. 1984). The vocational expert’s testimony will qualify as substantial 13 evidence if it is reliable. Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). 14 Here, the hypothetical posed to the vocational expert asked the expert to 15 consider a claimant with Plaintiff’s age, education, work experience, and residual 16 functional capacity to perform light work with the following additional limitations: 17 Posturals would all be at occasional, except no ladders, ropes, or scaffolds. [S]he should avoid concentrated exposure to extreme temperatures, vibration, and all hazards. There’s a history of depression, but there’s really no symptomatology in the last year and a half. . . . Let’s indicate she can understand, remember, and carry out simple, routine tasks. She can maintain concentration, persistence, and pace on simple, routine tasks. She can adapt to simple changes. And she can have brief, superficial interaction with the public and 18 19 20 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 22 1 coworkers. 2 Tr. 64. The vocational expert testified that the hypothetical individual would be 3 able to perform the following representative occupations: housekeeping, with 4 approximately 750,000 jobs in the national economy; cafeteria attendant, with 5 approximately 600,000 jobs in the national economy; and price marker, with 6 approximately 101,000 jobs in the national economy. Tr. 65. 7 Plaintiff argues the hypothetical failed to account for certain of her 8 limitations, specifically that she may be absent for more than eight days per year, 9 she may need to lie down up to four times per day for approximately 15 minutes, 10 she may be off task 10% of the time, and she is limited to only occasional handling 11 with her right upper extremity. ECF No. 13 at 21. Plaintiff does not cite to any 12 evidence in the record to support her assertion. 13 Having concluded the ALJ’s findings with regard to Plaintiff’s alleged 14 impairments were all supported by substantial evidence, the Court concludes the 15 ALJ carried her burden to prove Plaintiff retains the residual functional capacity to 16 perform certain jobs in the national economy. The ALJ’s conclusion is supported 17 18 by substantial evidence. CONCLUSION 19 Having reviewed the record and the ALJ’s findings, this Court concludes the 20 ALJ’s decision is supported by substantial evidence and free of harmful legal error. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 23 1 ACCORDINGLY, IT IS HEREBY ORDERED: 2 1. Plaintiff’s Motion for Summary Judgment (ECF No. 13) is DENIED. 3 2. Defendant’s Motion for Summary Judgment (ECF No. 15) is 4 5 GRANTED. The District Court Executive is directed to enter this Order, enter judgment 6 accordingly, furnish copies to counsel, and close the file. 7 DATED November 15, 2021. 8 9 THOMAS O. RICE United States District Judge 10 11 12 13 14 15 16 17 18 19 20 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 24

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.