Briggs v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: April 28, 2021
• Docket: 3:20-cv-05783
• Status: Unknown

Opinion

05 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 06 AT SEATTLE

07 SONYA B., ) ) CASE NO. C20-5783-MAT 08 Plaintiff, ) ) 09 v. ) ) ORDER RE: SOCIAL SECURITY 10 ANDREW M. SAUL, ) DISABILITY APPEAL Commissioner of Social Security, ) 11 ) Defendant. ) 12 ____________________________________ )

13 Plaintiff proceeds through counsel in her appeal of a final decision of the 14 Commissioner of the Social Security Administration (Commissioner). The Commissioner 15 denied Plaintiff’s application for Disability Insurance Benefits (DIB) after a hearing before an 16 Administrative Law Judge (ALJ). Having considered the ALJ’s decision, the administrative 17 record (AR), and all memoranda of record, this matter is AFFIRMED. 18 FACTS AND PROCEDURAL HISTORY 19 Plaintiff was born on XXXX, 1969.1 She has a seventh-grade education, and 20 previously worked as a certified nursing assistant. (AR 300.) 21 Plaintiff applied for DIB in September 2017. (AR 240-41.) That application was 22 1 Dates of birth must be redacted to the year. Fed. R. Civ. P. 5.2(a)(2) and LCR 5.2(a)(1). 01 denied and Plaintiff timely requested a hearing. (AR 147-49, 155-63.) 02 On April 4, 2019, ALJ Rebecca Jones held a hearing, taking testimony from Plaintiff 03 and a vocational expert (VE). (AR 65-122) On April 26, 2019, the ALJ issued a decision 04 finding Plaintiff not disabled. (AR 35-50.) Plaintiff timely appealed. The Appeals Council 05 denied Plaintiff’s request for review on June 30, 2019 (AR 1-5), making the ALJ’s decision 06 the final decision of the Commissioner. Plaintiff appealed this final decision of the 07 Commissioner to this Court. 08 JURISDICTION 09 The Court has jurisdiction to review the ALJ’s decision pursuant to 42 U.S.C. § 10 405(g). 11 DISCUSSION

12 The Commissioner follows a five-step sequential evaluation process for determining 13 whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it 14 must be determined whether the claimant is gainfully employed. The ALJ found Plaintiff had 15 not engaged in substantial gainful activity since October 13, 2016, the alleged onset date. 16 (AR 37.) At step two, it must be determined whether a claimant suffers from a severe 17 impairment. The ALJ found severe Plaintiff’s degenerative disc disease of the cervical spine 18 status post-fusion; right shoulder tendinopathy; right shoulder joint arthropathy status post- 19 arthroscopic surgery and mild post-operative bursitis; mild right carpal tunnel syndrome; 20 cubital tunnel syndrome/ulnar neuropathy of the right upper extremity with paresthesia; and

21 degenerative disc disease of the lumbar spine. (AR 37-38.) Step three asks whether a 22 claimant’s impairments meet or equal a listed impairment. The ALJ found that Plaintiff’s 01 impairments did not meet or equal the criteria of a listed impairment. (AR 38-39.) 02 If a claimant’s impairments do not meet or equal a listing, the Commissioner must 03 assess residual functional capacity (RFC) and determine at step four whether the claimant has 04 demonstrated an inability to perform past relevant work. The ALJ found Plaintiff capable of 05 performing light work with additional limitations: she cannot climb ladders, ropes, or 06 scaffolds. She can occasionally climb ramps and stairs, and can occasionally stoop, kneel, 07 crouch, and crawl. She cannot reach overhead with her right arm. She can frequently handle, 08 finger, and feel with her right arm. She cannot be exposed to excessive vibrations or hazards. 09 She requires a sit/stand option (the ability to change position after 30-60 minutes for 3-5 10 minutes while remaining on task). (AR 39.) With that assessment, the ALJ found Plaintiff 11 unable to perform any past relevant work. (AR 47-48.)

12 If a claimant demonstrates an inability to perform past relevant work, the burden shifts 13 to the Commissioner to demonstrate at step five that the claimant retains the capacity to make 14 an adjustment to work that exists in significant levels in the national economy. With the 15 assistance of the VE, the ALJ found Plaintiff capable of transitioning to other representative 16 occupations, such as parking lot cashier, tanning salon attendant, and gate guard. (AR 48-49.) 17 This Court’s review of the ALJ’s decision is limited to whether the decision is in 18 accordance with the law and the findings supported by substantial evidence in the record as a 19 whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Substantial evidence means 20 more than a scintilla, but less than a preponderance; it means such relevant evidence as a

21 reasonable mind might accept as adequate to support a conclusion. Magallanes v. Bowen, 881 22 F.2d 747, 750 (9th Cir. 1989). If there is more than one rational interpretation, one of which 01 supports the ALJ’s decision, the Court must uphold that decision. Thomas v. Barnhart, 27 8 02 F.3d 947, 954 (9th Cir. 2002). 03 Plaintiff argues the ALJ erred in (1) excluding mental impairments at step two, (2) 04 assessing certain medical opinions, and (3) discounting Plaintiff’s subjective allegations. The 05 Commissioner argues that the ALJ’s decision is supported by substantial evidence and should 06 be affirmed. 07 Step two 08 Plaintiff challenges the ALJ’s finding that Plaintiff did not have any medically 09 determinable mental conditions. (AR 38.) The Commissioner contends that the ALJ’s 10 finding is supported by substantial evidence, and that even if the ALJ did err in this respect, 11 no prejudice resulted because Plaintiff has not pointed to any evidence establishing the

12 existence of any workplace limitations that resulted from Plaintiff’s mental conditions. 13 A medically determinable impairment must result from anatomical, physiological, or 14 psychological abnormalities which can be shown by medically acceptable clinical and 15 laboratory diagnostic techniques, and established by medical evidence consisting of signs, 16 symptoms, and laboratory findings, not only by a statement of symptoms. 20 C.F.R. § 17 404.1521. Even if an ALJ does err in failing to include an impairment at step two, such error 18 is properly deemed harmless where the limitations associated with the impairment are 19 considered at step four. Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). 20 In her opening brief, Plaintiff points to various references to depression and/or anxiety

21 in the record, arguing that the ALJ should have found that these references were sufficient to 22 establish the existence of her mental impairments. Dkt. 15 at 8 (citing AR 419, 423, 430, 433, 01 437, 1041-42). She also contends that these impairments led to sleep disruption, agitation , 02 moodiness, and social limitations. Dkt. 17 at 4 (citing AR 713, 776, 835, 842, 858, 863, 03 1035). 04 The Commissioner disputes that any of the records cited by Plaintiff contain a 05 diagnosis consistent with “medically acceptable clinical and laboratory diagnostic 06 techniques[,]” which is required to establish the existence of a medically determinable 07 impairment. See 20 C.F.R. § 404.1521. The Court agrees that the scant references to anxiety 08 and/or depression in the medical record appear to be based entirely on Plaintiff’s report of 09 symptoms, which is insufficient for purposes of step two. 10 Furthermore, although the record references Plaintiff’s sleep disturbances, it is not 11 clear that Plaintiff’s sleep problems were related to her mental conditions. (See AR 713, 776,

12 835, 842, 858, 863.) Plaintiff attributed agitation, moodiness, and social limitations to anxiety 13 during only one appointment, which does not satisfy the durational requirement nor does it 14 even necessarily establish that these symptoms would lead to any particular workplace 15 limitations. (AR 1035.) 16 Because Plaintiff has not shown that the ALJ erred in finding that she did not have any 17 medically determinable mental impairments, or that the record showed she had any particular 18 mental limitations that were omitted from the ALJ’s RFC assessment, Plaintiff has not met 19 her burden to show harmful legal error in the ALJ’s step-two findings. 20 Plaintiff’s subjective allegations

21 The ALJ summarized Plaintiff’s subjective allegations and explained that she 22 discounted them because (1) Plaintiff declined to treat her pain through either surgery or 01 medication offered to her, which undermines her allegation of chronic, excruciating pain, an d 02 the treatment she did receive was conservative; (2) Plaintiff’s pain was not observed or 03 documented by providers in appointment notes, nor did the treatment record document 04 disabling functional limitations; and (3) Plaintiff engaged in a wide variety of activities that 05 contradict the physical limitations she alleges. (AR 40-44.) Plaintiff argues that the ALJ 06 failed to provide clear and convincing reasons to discount Plaintiff’s testimony, as required in 07 the Ninth Circuit. See Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014). 08 First, Plaintiff argues that because the proposed surgeries “were not sure things, but 09 risk laden[,]” her “refusal should not be held against her.” Dkt. 15 at 15. Even if that 10 argument has some merit, it does not explain why the ALJ was unreasonable in finding that 11 Plaintiff’s intermittent use of pain medication at times, and her complete lack of pain

12 medication at other times, undermined her allegation of disabling pain. (See, e.g., AR 86-87, 13 915.) This is a legally sufficient reason to discount Plaintiff’s subjective allegations of pain. 14 See Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). 15 Second, Plaintiff argues that even if she did not present to appointments in distress, 16 her providers believed her allegations of pain. Dkt. 15 at 15. That may be, but Plaintiff does 17 not show that the ALJ was unreasonable in relying on the providers’ notes indicating mostly 18 normal/stable gait and no need for an assistive device, as well as Plaintiff’s testimony that she 19 rarely uses a back brace and no longer uses wrist braces. (AR 42.) This reason, along with 20 the ALJ’s other reasons, supports the ALJ’s assessment of Plaintiff’s subjective testimony.

21 See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (“While subjective pain 22 testimony cannot be rejected on the sole ground that it is not fully corroborated by objective 01 medical evidence, the medical evidence is still a relevant factor in determining the severity o f 02 the claimant's pain and its disabling effects.”). 03 Third, Plaintiff contends that the activities cited by the ALJ “could be performed with 04 Plaintiff’s neck, right shoulder pain and low back pain because Plaintiff did not have to 05 perform them and could only perform them without a minimal standard and with breaks as 06 needed.” Dkt. 15 at 16. But, as the ALJ noted, Plaintiff alleged problems using her hands 07 (AR 295-96, 343), and yet her daughter reported that she crocheted often (AR 328). The ALJ 08 also contrasted the physical movements required for driving with Plaintiff’s allegations of 09 problems turning her head and neck and using her hands, as well as concentration deficits. 10 (AR 40, 43.) The ALJ pointed to some activities that were reasonably inconsistent with 11 Plaintiff’s alleged limitations, and Plaintiff has not established that the ALJ erred in finding

12 that these inconsistencies undermined her allegations. See Orn v. Astrue, 495 F.3d 625, 639 13 (9th Cir. 2007) (activities may undermine credibility where they (1) contradict the claimant’s 14 testimony or (2) “meet the threshold for transferable work skills”). 15 Because the ALJ provided multiple clear and convincing reasons to discount 16 Plaintiff’s subjective allegations, the Court affirms this portion of the ALJ’s decision. 17 Medical opinion evidence 18 Plaintiff argues that the ALJ erred in assessing a State agency consultant’s opinion, as 19 well as a treating nurse practitioner’s opinion. The Court will address each disputed opinion 20 in turn.

21 Legal standards 22 Because Plaintiff applied for benefits after March 27, 2017, new regulations apply to 01 the ALJ’s evaluation of medical opinion evidence. Under the regulations, an ALJ “will no t 02 defer or give any specific evidentiary weight, including controlling weight, to any medical 03 opinion(s) or prior administrative medical finding(s)[.]” 20 C.F.R. §§ 404.1520c(a), 04 416.920c(a).2 The ALJ must articulate and explain the persuasiveness of an opinion or prior 05 finding based on “supportability” and “consistency,” the two most important factors in the 06 evaluation. Id. at (a), (b)(1)-(2). The “more relevant the objective medical evidence and 07 supporting explanations presented” and the “more consistent” with evidence from other 08 sources, the more persuasive a medical opinion or prior finding. Id. at (c)(1)-(2). The ALJ 09 may but is not required to explain how other factors were considered, as appropriate, 10 including relationship with the claimant (length, purpose, and extent of treatment relationship; 11 frequency of examination); whether there is an examining relationship; specialization; and

12 other factors, such as familiarity with other evidence in the claim file or understanding of the 13 Social Security disability program’s policies and evidentiary requirements. Id. at (b)(2), 14 (c)(3)-(5). But see id. at (b)(3) (where finding two or more opinions/findings about same 15 issue equally supported and consistent with the record, but not exactly the same, ALJ will 16 articulate how other factors were considered). Where a single medical source provides 17 multiple opinions or findings, the ALJ conducts a single analysis and need not articulate how 18 each opinion or finding is considered individually. Id. at (b)(1). 19 20

21 2 “A prior administrative medical finding is a finding, other than the ultimate determination about [disability], about a medical issue made by our Federal and State agency medical and 22 psychological consultants at a prior level of review . . . in [a] claim based on their review of the evidence in your case record[.]” 20 C.F.R. §§ 404.1513(a)(5), 416.913(a)(5). 01 State agency consultant 02 A State agency consultant opined that inter alia Plaintiff is limited to occasional 03 reaching in front, laterally, and overhead with the right arm. (AR 130.) The ALJ purported to 04 find this opinion persuasive, but did not fully account for this opinion: the ALJ found that 05 Plaintiff could not reach overhead with her right arm, but did not address reaching in other 06 directions. (AR 39.) 07 The Commissioner concedes that the ALJ erred in failing to fully account for the State 08 agency opinion, but argues that the error is ultimately harmless because one of the step-five 09 jobs (gate guard) is compatible with the State agency opinion, and that one job exists in 10 significant numbers on its own. Dkt. 16 at 17. Although Plaintiff questions whether the 11 Dictionary of Occupational Titles (DOT) “speak[s] for itself” and insists that VE testimony

12 would be necessary to determine whether a particular job is compatible with a reaching 13 limitation (Dkt. 17 at 5), Plaintiff is mistaken: the DOT explicitly references reaching 14 requirements and lists the gate guard job as requiring occasional reaching, which would be 15 compatible with the State agency opinion. See DOT 372.667-030, 1991 WL 673099 16 (definition of gate guard job). The VE testified that there are 69,000 national gate guard jobs 17 (AR 110-11), which is a significant number. See Gutierrez v. Comm’r of Social Sec. Admin., 18 740 F.3d 519, 528-29 (9th Cir. 2014) (finding 25,000 to be a significant number of national 19 jobs). Thus, because at least one of the jobs identified at step five is consistent with the State 20 agency opinion and exists in significant numbers, the Court finds that the ALJ’s error with

21 respect to the State agency opinion is harmless. See Shaibi v. Berryhill, 883 F.3d 1102, 1110 22 n.7 (9th Cir. 2017). 01 Laura Raykowski, ARNP 02 Ms. Raykowski, Plaintiff’s treating nurse, completed a form opinion in March 2019 03 describing multiple disabling limitations. (AR 1046-48.) The ALJ summarized the opinion 04 and explained that she found it unpersuasive because (1) “it appears to have been completed 05 in collaboration with the claimant, e.g., largely in reliance on the claimant’s self-reported 06 symptoms and limitations rather than on objective medical findings”; (2) the opinion was 07 unsupported by and inconsistent with the longitudinal record and Plaintiff’s demonstrated 08 functional abilities; (3) the opinion is inconsistent with Ms. Raykowski’s prior opinion from 09 2018, wherein she agreed that Plaintiff was medically cleared to pursue gainful employment, 10 with overhead movement precluded on the right; and (4) Ms. Raykowski’s opinion is 11 inconsistent with other medical opinions. (AR 46.)

12 Plaintiff argues that the ALJ’s rationale for finding Ms. Raykowski’s opinion 13 unpersuasive is not adequate because the opinion is informed by Ms. Raykowski’s 14 longstanding treating relationship. Dkt. 15 at 12. Ms. Raykowski is indeed a treating source, 15 but that status does not require an ALJ to credit any opinion she signs. See, e.g., Thomas, 278 16 F.3d at 957 (“The ALJ need not accept the opinion of any physician, including a treating 17 physician, if that opinion is brief, conclusory, and inadequately supported by clinical 18 findings.”). 19 Moreover, the ALJ’s reasons explain why she found Ms. Raykowski’s opinion to be 20 unpersuasive with reference to supportability and consistency, as required under the new

21 regulations. Even if the Court continued to apply Ninth Circuit cases predating the new 22 regulations, the ALJ’s reasons would be sufficient. Ms. Raykowski cited Plaintiff’s pain as 01 the basis for her limitations (AR 1048), which supports the ALJ’s finding that the opinio n 02 relies on Plaintiff’s self-reporting rather than objective findings. Because the ALJ properly 03 discounted Plaintiff’s subjective reporting, the ALJ did not err in finding a medical opinion 04 that relies on Plaintiff’s subjective reporting to be unpersuasive and unsupported. See, e.g., 05 Bray v. Comm’r of Social Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (“As the district 06 court noted, however, the treating physician’s prescribed work restrictions were based on 07 Bray’s subjective characterization of her symptoms. As the ALJ determined that Bray’s 08 description of her limitations was not entirely credible, it is reasonable to discount a 09 physician’s prescription that was based on those less than credible statements.”). 10 Furthermore, the ALJ also pointed to evidence inconsistent with Ms. Raykowski’s 11 opinion, namely her own prior 2018 opinion that Plaintiff could work with some right

12 shoulder limitations, which contradicts Ms. Raykowski’s claim in the 2019 opinion to 13 describe limitations that have existed since “[p]robably June 2017[.]” (AR 1047.) The 2019 14 is also unsupported by and/or inconsistent with the longitudinal record, as the ALJ found that 15 Plaintiff’s declining to treat her pain via surgery or medication undermined her allegations of 16 constant and excruciating pain. (AR 41.) These inconsistencies would also constitute a 17 specific, legitimate reason to discount Ms. Raykowski’s opinion. See Tommasetti, 533 F.3d at 18 1041 (not improper to reject an opinion presenting inconsistencies between the opinion and 19 the medical record). 20 Thus, whether the Court reviews the ALJ’s assessment of Ms. Raykowski’s opinion

21 under the new regulations or Ninth Circuit case authority, the Court affirms the ALJ’s 22 assessment of Ms. Raykowski’s opinion. 01 CONCLUSION 02 For the reasons set forth above, this matter is AFFIRMED. 03 DATED this 28th day of April, 2021.

04 A 05 Mary Alice Theiler 06 United States Magistrate Judge 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22