Baumann v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: October 28, 2019
• Docket: 2:19-cv-00354
• Status: Unknown

Opinion

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5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 SAM B., 9 CASE NO. 2:19-CV-00354-DWC Plaintiff, 10 ORDER AFFIRMING DEFENDANT’S v. 11 DECISION TO DENY BENEFITS COMMISSIONER OF SOCIAL 12 SECURITY, 13 Defendant. 14 Plaintiff filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of 15 Defendant’s denial of his application for disability insurance benefits (“DIB”). Pursuant to 28 16 U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and Local Rule MJR 13, the parties have 17 consented to have this matter heard by the undersigned Magistrate Judge. See Dkt. 2. 18 After considering the record, the Court concludes Plaintiff has failed to show the 19 Administrative Law Judge (“ALJ”) erred when he found Plaintiff’s ankle impairments did not 20 meet or equal Listing 1.02A. Further, Plaintiff has not shown the ALJ erred in his consideration of 21 the medical evidence, Plaintiff’s residual functional capacity (“RFC”) assessment, or the 22 vocational expert’s testimony. Accordingly, the decision of the Commissioner of Social Security 23 (“Commissioner”) is affirmed pursuant to sentence four of 42 U.S.C. § 405(g). 24 1 FACTUAL AND PROCEDURAL HISTORY 2 On March 5, 2015, Plaintiff filed an application for DIB, alleging disability as of March 1, 3 2007. See Dkt. 9, Administrative Record (“AR”) 15. The application was denied upon initial 4 administrative review and on reconsideration. See AR 14. A hearing was held before ALJ Eric S.

5 Basse. See AR 46-93. At the hearing, Plaintiff amended his alleged onset date to March 1, 2008. 6 See AR 15, 51-52. On January 22, 2018, the ALJ entered a decision finding Plaintiff not disabled. 7 AR 15-36. Plaintiff’s request for review of the ALJ’s decision was denied by the Appeals Council, 8 making the ALJ’s decision the final decision of the Commissioner. See AR 1-5, 20 C.F.R. § 9 404.981, § 416.1481. 10 In the Opening Brief, Plaintiff maintains the ALJ erred by failing to properly: (1) consider 11 whether Plaintiff met Listing 1.02A; (2) consider the medical opinion evidence; (3) evaluate the 12 RFC and vocational expert’s testimony; and (4) support the decision with the evidence of record. 13 Dkt. 15. 14 STANDARD OF REVIEW

15 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of 16 social security benefits if the ALJ’s findings are based on legal error or not supported by 17 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th 18 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). 19 DISCUSSION 20 I. Whether the ALJ erred in failing to find Plaintiff’s ankle impairments met Listing 1.02A at Step Three. 21 At Step Three of the sequential evaluation process, the ALJ considers whether one or more 22 of the claimant’s impairments meets or equals an impairment listed in Appendix 1 to Subpart P of 23 the regulations. 20 C.F.R. § 404.1520(a)(4)(iii). Each Listing sets forth the “symptoms, signs, and 24 1 laboratory findings” which must be established in order for a claimant’s impairment to meet the 2 Listing. Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). If a claimant meets or equals a 3 Listing, the claimant is considered disabled without further inquiry. See 20 C.F.R. § 416.920(d). 4 The burden of proof is on the claimant to establish he meets or equals any of the

5 impairments in the Listings. See Tacket, 180 F.3d at 1098. “A generalized assertion of functional 6 problems,” however, “is not enough to establish disability at step three.” Id. at 1100 (citing 20 7 C.F.R. § 404.1526). A mental or physical impairment “must result from anatomical, physiological, 8 or psychological abnormalities which can be shown by medically acceptable clinical and 9 laboratory diagnostic techniques.” 20 C.F.R. § 404.1508. It must be established by medical 10 evidence “consisting of signs, symptoms, and laboratory findings.” Id.; see also Social Security 11 Ruling (“SSR”) 96–8p, 1996 WL 374184 *2 (a step three determination must be made on basis of 12 medical factors alone). An impairment meets a listed impairment “only when it manifests the 13 specific findings described in the set of medical criteria for that listed impairment.” SSR 83–19, 14 1983 WL 31248 *2.

15 Plaintiff argues the ALJ erred by failing to find Plaintiff’s ankle impairments met or 16 equaled Listing 1.02A. Dkt. 15, pp. 5-6. Listing 1.02A pertains to major disfunction of a joint 17 involving one major peripheral weight-bearing joint resulting in an inability to ambulate 18 effectively. 20 C.F.R. Part 404, Subpart P, Appendix 1§ 1.02A. 19 Inability to ambulate effectively means an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously with the individual’s ability to 20 independently initiate, sustain, or complete activities. Ineffective ambulation is defined generally as having insufficient lower extremity functioning (see 1.00J) to 21 permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities. 22 20 C.F.R. Part 404, Subp. P, App. 1§ 1.00B(1). Examples of ineffective ambulation include, “the 23 inability to walk without the use of a walker, two crutches or two canes, the inability to walk a 24 1 block at a reasonable pace on rough or uneven surfaces, the inability to use standard public 2 transportation, the inability to carry out routine ambulatory activities.” 20 C.F.R. Part 404, Subp. 3 P, App. 1§ 1.00B(2). 4 At Step Three, the ALJ found Plaintiff “did not have an impairment or combination of

5 impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR 6 Part 404, Subpart P, Appendix 1.” AR 24. The ALJ also provided specific discussion of the 7 medical evidence and determined Plaintiff’s impairments did not meet or equal the criteria of 8 Listing 1.02 during the relevant period. AR 24. In making this determination, the ALJ cited 9 evidence showing Plaintiff has a normal gait. See AR 24, 408 (non-antalgic gait, able to perform 10 heel ambulation), 481 (gait /station within normal limits), AR 687 (arc of full motion, no joint 11 instability, strength 5/5), 859 (normal gait, can heel and toe walk, although complains of pain). 12 While not explicitly stated, the ALJ concluded the record supported finding Plaintiff has a normal 13 gait and, therefore, can ambulate effectively. See AR 24. Furthermore, the record contains 14 additional examinations and opinions showing Plaintiff did not have an extreme limitation in his

15 ability to walk. See e.g. AR 690 (able to walk for 30 minutes), 883 (able to walk three to six hours 16 in an eight-hour day), 1337 (no evidence of antalgic gait except for lateral abnormality, normal 17 heel strike, no imbalance with toe and tandem walking, but could not heel walk). 18 Plaintiff cites to one treatment note to support his assertion that the ALJ erred when he 19 failed to find Plaintiff’s ankle impairment met or equaled Listing 1.02A. See Dkt. 15, p. 6. The 20 cited treatment note shows Plaintiff complained of left ankle pain on December 20, 2012. AR 714. 21 He stated his pain limited his ability to tolerate walking, standing, or physical activity. AR 714. 22 The doctor noted ankle instability, decreased range of motion, and abnormal strength and tone. AR 23 714. The sole treatment note does not, however, show Plaintiff’s ankle impairments result in an

24 1 inability to ambulate effectively, as defined by the Listings. See AR 714. For example, the 2 treatment note does not contain evidence showing Plaintiff cannot independently ambulate 3 without the use of a hand-held assistive device that limits the functioning of both upper 4 extremities. See AR 714; 20 C.F.R. Part 404, Subp. P, App. 1§ 1.00B(1).

5 Plaintiff has not offered a plausible theory explaining how the evidence shows Plaintiff 6 meets Listing 1.02A. Plaintiff has also not argued the ALJ’s consideration of the evidence was 7 erroneous. See Dkt.15, p. 6. Therefore, Plaintiff failed to show the ALJ erred at Step Three of the 8 sequential evaluation process when determining Plaintiff’s ankle impairments did not meet or 9 equal Listing 1.02A. See Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005) (affirming the 10 district court’s finding that the claimant “bears the burden of proving that ... she has an impairment 11 that meets or equals the criteria of an impairment listed in Appendix 1 of the Commissioner’s 12 regulations”); Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001) (finding the ALJ did not err at Step 13 Three when the plaintiff offered no theory, plausible or otherwise, as to how his impairments 14 combined to equal a listed impairment or pointed to evidence showing his combined impairments

15 equal a listed impairment); see also Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th 16 Cir. 1999) (“Where the evidence is susceptible to more than one rational interpretation, it is the 17 ALJ’s conclusion that must be upheld.”). 18 II. Whether the ALJ properly considered the medical evidence.

19 Plaintiff next contends the ALJ erred by failing to discuss the weight given to medical 20 records. Dkt. 15, pp. 7-8. Specifically, Plaintiff argues the ALJ failed to properly consider and give 21 significant weight to medical records showing Plaintiff was having significant ankle issues until 22 January 2013. Id. 23 24 1 The ALJ “need not discuss all evidence presented.” Vincent ex rel. Vincent v. Heckler, 2 739 F.3d 1393, 1394-95 (9th Cir. 1984). But, the ALJ “may not reject ‘significant probative 3 evidence’ without explanation.” Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995) 4 (quoting Vincent, 739 F.2d at 1395). The “ALJ’s written decision must state reasons for

5 disregarding [such] evidence.” Flores, 49 F.3d at 571. However, “[t]he Ninth Circuit has held 6 when a treating physician does not place any specific functional limitations on a claimant or 7 opine a claimant is unable to work, the ALJ need not provide reasons to reject the physician’s 8 findings.” Fuge v. Astrue, 2013 WL 76272, at *6 (D. Or. Jan. 4, 2013). 9 Here, the ALJ found Plaintiff had a severe impairment of bilateral ankle impairments. AR 10 18. The ALJ discussed the medical records and medical opinion evidence related to Plaintiff’s 11 ankle impairments. See AR 28-29. In the RFC, the ALJ limited Plaintiff, in relevant part, to 12 standing and/or walking for four hours in an eight-hour day. AR 24. The ALJ also found Plaintiff 13 could not crawl or kneel, and could only occasionally balance, stoop, and crouch. AR 24. 14 Plaintiff argues the medical records related to Plaintiff’s ankle issues should be given

15 significant weight. Dkt. 15, pp.7-8. Plaintiff, however, does not explain how the ALJ’s decision 16 failed to properly account for the medical evidence. See id. Plaintiff also fails to show any harmful 17 error due to the ALJ’s alleged failure to properly consider medical records showing Plaintiff had 18 significant ankle issues. See id. For example, Plaintiff does not allege the medical records include 19 functional limitations that were not included in the RFC. Therefore, the Court finds Plaintiff has 20 not shown the ALJ erred in his consideration of the medical records. See Shinseki v. Sanders, 556 21 U.S. 396, 410 (2009) (finding the plaintiff has the burden of demonstrating there are harmful errors 22 in the ALJ’s decision); Valentine v. Commissioner of Social Sec. Admin., 574 F.3d 685, 692, n. 2 23 (9th Cir. 2009) (rejecting “any invitation to find that the ALJ failed to account for [the

24 1 claimant’s] injuries in some unspecified way” when the claimant failed to detail what limitations 2 followed from the evidence beyond those already listed in the RFC); Crawford v. Colvin, 2014 3 WL 2216115, at *9 (W.D. Wash. May 29, 2014) (finding the plaintiff failed to demonstrate error 4 when she failed to demonstrate the ALJ’s reliance on other evidence and interpretation of the

5 evidence overall was not rational). 6 III. Whether the ALJ erred in evaluating the RFC and the vocational expert’s testimony. 7 Plaintiff argues the ALJ erred in evaluating the RFC because the ALJ did not account for 8 the medical records showing Plaintiff suffered from significant ankle problems after he had 9 surgery in 2012 and 2013. Dkt. 15, pp. 8-9. 10 An RFC is “an assessment of an individual’s ability to do sustained work-related physical 11 and mental activities in a work setting on a regular and continuing basis.” SSR 96-9p, 1996 WL 12 374184, at *1 (1996). An RFC must include an individual’s functional limitations or restrictions 13 and assess his “work-related abilities on a function-by-function basis.” Id. Furthermore, an RFC 14 must take into account all of an individual’s limitations. Valentine, 574 F.3d at 690. 15 In the RFC, the ALJ limited Plaintiff to light work except Plaintiff could only stand and/or 16 walk for four hours in an eight-hour day, could not crawl or kneel, and could only occasionally 17 balance, stoop, and crouch. AR 24.1 18 Plaintiff contends his ankle impairments impact his ability to climb stairs, ladders, ropes, 19 and scaffolds, stoop and kneel, and stand for occasional periods. Dkt. 15, p. 8. Yet, Plaintiff cites 20 to no evidence showing his ankle impairments cause the alleged functional limitations. See id. 21 Plaintiff cites to one medical record that shows Plaintiff had bilateral ankle pain on December 22 23 24 1 The RFC contains additional limitations that are not relevant to Plaintiff’s argument. See AR 24. 1 20, 2012. See id.; see also AR 714. The treatment note contains a physical examination showing 2 Plaintiff had decreased range of motion, abnormal strength and tone, and instability in his ankle. 3 AR 714. The treatment note does not include any functional limitations, nor show Plaintiff is 4 unable to meet the demands of the RFC. See AR 714. As such, Plaintiff has not shown the ALJ

5 failed to properly evaluate the RFC. See Overton-Perez v. Berryhill, 2017 WL 1591870, at *9 6 (D. Or. May 1, 2017) (“[o]nly limitations supported by substantial evidence must be incorporated 7 into the RFC”); Whitfield v. Colvin, 2014 WL 907332, at *7 (E.D. Cal. Mar. 7, 2014), aff'd, 609 8 F. App’x 490 (9th Cir. 2015) (finding the ALJ did not err in consideration of the RFC, in part, 9 because the plaintiff “point[ed] to no medical opinion in the record that assigns more restrictive 10 limitations caused by plaintiff's alleged physical impairments” than assigned in the RFC). 11 Plaintiff also asserts the ALJ improperly relied on the vocational expert’s (“VE”) 12 testimony because the ALJ did not consider all Plaintiff’s reported symptoms when posing 13 hypothetical questions to the VE. Dkt. 15, p. 9. Hypothetical questions posed to the VE do not 14 need to include limitations that the ALJ finds unsupported by the record. Osenbrock v. Apfel, 240

15 F.3d 1157, 1163–65 (9th Cir. 2001); see Parnell v. Astrue, 2010 WL 529325, at *6 (C.D. Cal. 16 Feb. 12, 2010) (quoting Osenbock, 240 F.3d at 1165) (“an ALJ may limit a hypothetical ‘to those 17 impairments that are supported by substantial evidence in the record’”). 18 Plaintiff fails to show the RFC does not include all the credible limitations contained in 19 the record. Further, while Plaintiff states the ALJ did not account for Plaintiff’s reported 20 symptoms, Plaintiff does not challenge the ALJ’s decision to give less weight to Plaintiff’s 21 subjective symptom testimony. See Dkt. 15. The ALJ posed hypothetical questions to the VE 22 that accurately reflected the RFC assessment he reached after a thorough and comprehensive 23 review of the evidence in the record. See AR 15-36, 84-89. Therefore, the RFC assessment and

24 1 the hypothetical questions posed to the VE were properly based on the credible functional 2 limitations contained in the record, and thus both the RFC assessment and the hypothetical 3 question posed to the VE were proper. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 4 (9th Cir. 2008) (an ALJ’s RFC assessment only needs to incorporate credible limitations

5 supported by substantial evidence in the record); Greger v. Barnhart, 464 F.3d 968, 973 (9th 6 Cir. 2006) (the ALJ “is free to accept or reject restrictions in a hypothetical question that are 7 not supported by substantial evidence”). Accordingly, Plaintiff has not shown the ALJ erred in 8 his assessment of the RFC or in evaluating the VE’s testimony. See Houghton v. Comm’r Soc. 9 Sec. Admin., 493 F. App’x 843, 846 (9th Cir. 2012).2 10 CONCLUSION 11 Based on the foregoing reasons, the Court hereby finds the ALJ properly concluded 12 Plaintiff was not disabled. Accordingly, Defendant’s decision to deny benefits is affirmed pursuant 13 to sentence four of 42 U.S.C. § 405(g). 14 Dated this 28th day of October, 2019.

15 A 16 David W. Christel United States Magistrate Judge 17 18 19 20 21

22 2 In a conclusory manner, Plaintiff argues the ALJ’s decision is not supported by substantial evidence. Dkt. 15, p. 10. Plaintiff requests the Court scrutinize the entire record and interfere with the ALJ’s decision. Id. Plaintiff, 23 however, identifies no specific error and fails to point to any portion of the ALJ’s decision that is unsupported by substantial evidence. See id. As such, the Court finds Plaintiff has not shown the ALJ’s decision is unsupported by 24 substantial evidence.