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6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 JENNIFER B., CASE NO. 2:22-cv-00788-JRC 11 Plaintiff, ORDER ON PLAINTIFF’S 12 v. COMPLAINT 13 COMMISSIONER OF SOCIAL SECURITY, 14 Defendant. 15 16 17 This matter is before the Court on the parties’ consent and on plaintiff’s complaint. See 18 Dkt. 5. This matter has been fully briefed. See Dkts. 12–14. 19 Plaintiff is a 43-year-old woman with prior work experience as a secretary who claims 20 she can no longer work due to her impairments, which include cervical and lumbar spine 21 degenerative disc/joint disease, osteoarthritis of the knees, migraine headaches, and thoracic 22 outlet syndrome. The Administrative Law Judge (ALJ) found that plaintiff is not disabled 23 24 1 because she has the residual functional capacity (RFC) to perform sedentary work, which makes 2 her capable of performing her past relevant work as a secretary. 3 Plaintiff argues that the ALJ erred in reaching the RFC determination because the ALJ 4 did not address significant limitations related to plaintiff’s migraine headaches and upper 5 extremity impairments. However, much of the evidence plaintiff relies on for the additional
6 limitations comes from her self-reports. The problem for plaintiff is that the ALJ rejected 7 plaintiff’s subjective symptom testimony and plaintiff does not challenge that finding. The same 8 is true for plaintiff’s reliance on Rehabilitation Specialist Seunghyum-Steve Lee; the ALJ 9 rejected his medical opinion and plaintiff does not challenge that finding. The ALJ was not 10 required to incorporate evidence he rejected into the RFC. 11 Plaintiff also contends that this matter should be reversed for further consideration 12 because the ALJ did not discuss certain medical records in assessing the RFC and because the 13 ALJ’s conclusions regarding some of the medical evidence were allegedly erroneous. Regarding 14 the former, the ALJ was not required to discuss every piece of evidence in the record—only
15 significant probative evidence. The ALJ did so here. As to the latter, the Court finds that the 16 ALJ’s conclusions were reasonable and must uphold the decision even if they are susceptible to 17 more than one interpretation. 18 Accordingly, the Court affirms the ALJ’s decision in this matter. 19 BACKGROUND 20 Plaintiff’s applications for disability insurance benefits pursuant to 42 U.S.C. § 423 (Title 21 II) was denied initially and following reconsideration. See Administrative Record (AR) 16. In 22 July 2020, after an adverse disability decision, plaintiff filed an appeal in this district, which 23 resulted in a stipulated remand for further consideration. See AR 3881–85. On remand, ALJ 24 1 Howard Prinsloo held another hearing and issued a second written decision finding plaintiff was 2 not disabled pursuant to the Social Security Act. See AR 3769–82. 3 On May 6, 2022, the Appeals Council denied plaintiff’s request for review, making the 4 written decision by the ALJ the final agency decision subject to judicial review. AR 3758; see 20 5 C.F.R. § 404.981. Plaintiff filed a complaint in this Court seeking judicial review of the ALJ’s
6 written decision in June 2022. See Dkt. 5. Defendant filed the sealed administrative record 7 regarding this matter on August 22, 2022. See Dkts. 9, 10. 8 DISCUSSION 9 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of 10 social security benefits if the ALJ’s findings are based on legal error or not supported by 11 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th 12 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). Plaintiff raises two similar 13 issues regarding the ALJ’s RFC assessment. Specifically, plaintiff argues that the ALJ’s RFC 14 determination is erroneous because the ALJ failed to address significant limitations related to
15 plaintiff’s migraine headaches and upper extremity impairments. See Dkt. 12 at 1. 16 I. Migraine Headaches 17 Plaintiff argues that the ALJ erred in the RFC determination because it does not properly 18 account for limitations due to plaintiff’s migraine headaches. See Dkt. 12 at 4–11. “In assessing 19 RFC, the adjudicator must consider limitations and restrictions imposed by all of an individual’s 20 impairments, even those that are not ‘severe.’” Social Security Ruling (“SSR”) 96-8p, 1996 WL 21 374184, at *5 (S.S.A. July 2, 1996). “The RFC therefore should be exactly the same regardless 22 of whether certain impairments are considered ‘severe’ or not.” Buck v. Berryhill, 869 F.3d 1040, 23 1049 (9th Cir. 2017) (emphasis in original). However, an ALJ need only include in the RFC 24 1 limitations supported by substantial evidence. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 2 886 (9th Cir. 2006). In other words, when making the RFC determination, the ALJ is only 3 required to consider those limitations for which there was record support that did not depend on 4 plaintiff’s subjective complaints. Bayliss v. Barnhart, 427 F.3d. 1211, 1217 (9th Cir. 2005) 5 (upholding ALJ’s RFC because “the ALJ took into account those limitations for which there was
6 record support that did not depend on [claimant]’s subjective complaints”). Preparing a function- 7 by-function analysis for medical conditions or impairments that the ALJ found neither credible 8 nor supported by the record is unnecessary. Id. 9 Plaintiff cites to various treatment notes in the record and contends that they show that 10 she has significant limitations that the ALJ did not properly consider. See Dkt. 12 at 6–11. 11 Defendant argues that none of the limitations plaintiff believes should have been included in the 12 RFC are based on a medical opinion. See Dkt. 13 at 4. Indeed, plaintiff relies almost exclusively 13 on self-reports in questionnaires and statements to medical providers. See Dkt. 12 at 6–7, 11. 14 However, the ALJ rejected plaintiff’s subjective symptom testimony regarding her migraine
15 headaches. See AR 3775 (rejecting plaintiff’s subjective symptom testimony because it is not 16 consistent with medical evidence). As stated above, the ALJ is only required to consider those 17 limitations for which there was record support that did not depend on plaintiff’s subjective 18 complaints. See Bayliss, 427 at 1217. 19 Plaintiff did not challenge or otherwise identify any error in the ALJ’s reasons for 20 discounting her testimony, see generally Dkt. 12, and a reviewing court “cannot manufacture 21 arguments for an appellant and therefore [a court] will not consider any claims that were not 22 actually argued in appellant’s opening brief.” Indep. Towers of Wash. v. Wash., 350 F.3d 925, 23 929 (9th Cir. 2003) (quoting Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 24 1 1994)). “Rather, [the court] ‘review[s] only issues which are argued specifically and distinctly in 2 a party’s opening brief.’” Id.; see also Nw. Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 3 918, 923-24 (9th Cir.
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6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 JENNIFER B., CASE NO. 2:22-cv-00788-JRC 11 Plaintiff, ORDER ON PLAINTIFF’S 12 v. COMPLAINT 13 COMMISSIONER OF SOCIAL SECURITY, 14 Defendant. 15 16 17 This matter is before the Court on the parties’ consent and on plaintiff’s complaint. See 18 Dkt. 5. This matter has been fully briefed. See Dkts. 12–14. 19 Plaintiff is a 43-year-old woman with prior work experience as a secretary who claims 20 she can no longer work due to her impairments, which include cervical and lumbar spine 21 degenerative disc/joint disease, osteoarthritis of the knees, migraine headaches, and thoracic 22 outlet syndrome. The Administrative Law Judge (ALJ) found that plaintiff is not disabled 23 24 1 because she has the residual functional capacity (RFC) to perform sedentary work, which makes 2 her capable of performing her past relevant work as a secretary. 3 Plaintiff argues that the ALJ erred in reaching the RFC determination because the ALJ 4 did not address significant limitations related to plaintiff’s migraine headaches and upper 5 extremity impairments. However, much of the evidence plaintiff relies on for the additional
6 limitations comes from her self-reports. The problem for plaintiff is that the ALJ rejected 7 plaintiff’s subjective symptom testimony and plaintiff does not challenge that finding. The same 8 is true for plaintiff’s reliance on Rehabilitation Specialist Seunghyum-Steve Lee; the ALJ 9 rejected his medical opinion and plaintiff does not challenge that finding. The ALJ was not 10 required to incorporate evidence he rejected into the RFC. 11 Plaintiff also contends that this matter should be reversed for further consideration 12 because the ALJ did not discuss certain medical records in assessing the RFC and because the 13 ALJ’s conclusions regarding some of the medical evidence were allegedly erroneous. Regarding 14 the former, the ALJ was not required to discuss every piece of evidence in the record—only
15 significant probative evidence. The ALJ did so here. As to the latter, the Court finds that the 16 ALJ’s conclusions were reasonable and must uphold the decision even if they are susceptible to 17 more than one interpretation. 18 Accordingly, the Court affirms the ALJ’s decision in this matter. 19 BACKGROUND 20 Plaintiff’s applications for disability insurance benefits pursuant to 42 U.S.C. § 423 (Title 21 II) was denied initially and following reconsideration. See Administrative Record (AR) 16. In 22 July 2020, after an adverse disability decision, plaintiff filed an appeal in this district, which 23 resulted in a stipulated remand for further consideration. See AR 3881–85. On remand, ALJ 24 1 Howard Prinsloo held another hearing and issued a second written decision finding plaintiff was 2 not disabled pursuant to the Social Security Act. See AR 3769–82. 3 On May 6, 2022, the Appeals Council denied plaintiff’s request for review, making the 4 written decision by the ALJ the final agency decision subject to judicial review. AR 3758; see 20 5 C.F.R. § 404.981. Plaintiff filed a complaint in this Court seeking judicial review of the ALJ’s
6 written decision in June 2022. See Dkt. 5. Defendant filed the sealed administrative record 7 regarding this matter on August 22, 2022. See Dkts. 9, 10. 8 DISCUSSION 9 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of 10 social security benefits if the ALJ’s findings are based on legal error or not supported by 11 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th 12 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). Plaintiff raises two similar 13 issues regarding the ALJ’s RFC assessment. Specifically, plaintiff argues that the ALJ’s RFC 14 determination is erroneous because the ALJ failed to address significant limitations related to
15 plaintiff’s migraine headaches and upper extremity impairments. See Dkt. 12 at 1. 16 I. Migraine Headaches 17 Plaintiff argues that the ALJ erred in the RFC determination because it does not properly 18 account for limitations due to plaintiff’s migraine headaches. See Dkt. 12 at 4–11. “In assessing 19 RFC, the adjudicator must consider limitations and restrictions imposed by all of an individual’s 20 impairments, even those that are not ‘severe.’” Social Security Ruling (“SSR”) 96-8p, 1996 WL 21 374184, at *5 (S.S.A. July 2, 1996). “The RFC therefore should be exactly the same regardless 22 of whether certain impairments are considered ‘severe’ or not.” Buck v. Berryhill, 869 F.3d 1040, 23 1049 (9th Cir. 2017) (emphasis in original). However, an ALJ need only include in the RFC 24 1 limitations supported by substantial evidence. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 2 886 (9th Cir. 2006). In other words, when making the RFC determination, the ALJ is only 3 required to consider those limitations for which there was record support that did not depend on 4 plaintiff’s subjective complaints. Bayliss v. Barnhart, 427 F.3d. 1211, 1217 (9th Cir. 2005) 5 (upholding ALJ’s RFC because “the ALJ took into account those limitations for which there was
6 record support that did not depend on [claimant]’s subjective complaints”). Preparing a function- 7 by-function analysis for medical conditions or impairments that the ALJ found neither credible 8 nor supported by the record is unnecessary. Id. 9 Plaintiff cites to various treatment notes in the record and contends that they show that 10 she has significant limitations that the ALJ did not properly consider. See Dkt. 12 at 6–11. 11 Defendant argues that none of the limitations plaintiff believes should have been included in the 12 RFC are based on a medical opinion. See Dkt. 13 at 4. Indeed, plaintiff relies almost exclusively 13 on self-reports in questionnaires and statements to medical providers. See Dkt. 12 at 6–7, 11. 14 However, the ALJ rejected plaintiff’s subjective symptom testimony regarding her migraine
15 headaches. See AR 3775 (rejecting plaintiff’s subjective symptom testimony because it is not 16 consistent with medical evidence). As stated above, the ALJ is only required to consider those 17 limitations for which there was record support that did not depend on plaintiff’s subjective 18 complaints. See Bayliss, 427 at 1217. 19 Plaintiff did not challenge or otherwise identify any error in the ALJ’s reasons for 20 discounting her testimony, see generally Dkt. 12, and a reviewing court “cannot manufacture 21 arguments for an appellant and therefore [a court] will not consider any claims that were not 22 actually argued in appellant’s opening brief.” Indep. Towers of Wash. v. Wash., 350 F.3d 925, 23 929 (9th Cir. 2003) (quoting Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 24 1 1994)). “Rather, [the court] ‘review[s] only issues which are argued specifically and distinctly in 2 a party’s opening brief.’” Id.; see also Nw. Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 3 918, 923-24 (9th Cir. 1996) (party who presents no explanation in support of claim of error 4 waives issue). Thus, the ALJ was not required to give limitations based on plaintiff’s testimony 5 additional consideration.
6 Plaintiff also argues that the ALJ was wrong to conclude that there were no significant 7 complaints of migraines after 2015. See Dkt. 12 at 8. However, the ALJ stated that there were no 8 significant complaints, not that there were no complaints. See AR 3775. The ALJ clarified that 9 plaintiff continued to complain of neck pain and migraines after 2015, but that plaintiff indicated 10 that medication management helped. See id. The ALJ cited to medical records that suggest 11 plaintiff was doing well with her migraines after 2015. See, e.g., AR 1545 (2018 medical note 12 stating that plaintiff’s migraine headaches were managed well with medication). Plaintiff herself 13 cites to evidence that suggests her migraine headaches were well-managed with medication. Dkt. 14 12 at 9 (citing AR 1770 (2017 treatment note stating that plaintiff’s migraines were “about the
15 same as they have been and well managed with topiramate”)). 16 Plaintiff appears to be asking the Court to look at the medical evidence and come to a 17 different conclusion than the ALJ. However, that is not the Court’s role. See Burch v. Barnhart, 18 400 F.3d 676, 680-81 (9th Cir. 2005) (explaining that the reviewing court “must uphold the 19 ALJ’s decision where the evidence is susceptible to more than one rational interpretation”) 20 (internal quotation marks and brackets omitted). Thus, the Court finds no reversible error in the 21 ALJ’s decision not to include additional limitations based on plaintiff’s migraine headaches. 22 /// 23 /// 24 1 II. Upper Extremities 2 Plaintiff’s argument regarding her upper extremity limitations suffers from similar 3 deficiencies as her first argument. Plaintiff contends that the ALJ erred when he did not explain 4 how he considered medical evidence regarding her upper extremity impairments when he 5 assessed plaintiff’s RFC. See Dkt. 12.
6 Plaintiff cites to medical records of treatment she received for her upper extremity 7 conditions and suggests that they show additional limitations than those included in the RFC. See 8 Dkt. 12 at 18. However, the diagnosis and treatment of a medical condition are often insufficient 9 to arise to the level of “significant” or “probative” evidence, unless there is evidence of a 10 functional limitation linked to that impairment. See, e.g., Eduardo Corona M. v. Berryhill, No. 11 2:17-CV-09061-AFM, 2019 WL 718111, at *3–4 (C.D. Cal. Feb. 19, 2019) (collecting cases). 12 “The mere existence of an impairment is insufficient proof of a disability.” Matthews v. Shalala, 13 10 F.3d 678, 680 (9th Cir. 1993). While the Commissioner must at least consider each 14 impairment when formulating an RFC, see 20 C.F.R. § 404.1545(a)(2), plaintiff must present
15 evidence showing the diagnosed impairment causes some significant functional limitation. See 16 Houghton v. Comm’r Soc. Sec. Admin., 493 Fed. App’x. 843, 845–46 (9th Cir. 2012) (“The ALJ 17 was not required to discuss [] alleged medical conditions in the absence of significant probative 18 evidence that they had some functional impact on [the claimant]’s ability to work.”). 19 The only evidence that plaintiff cites containing work-related limitations based on her 20 upper extremity impairments are her own self-reports and a medical opinion from Rehabilitation 21 Specialist Seunghyum-Steve Lee, M.D. See Dkt. 12 at 15–16. Again, the ALJ rejected plaintiff’s 22 subjective symptom testimony and that finding was not challenged by plaintiff. See id. at 16 23 (contending that plaintiff’s testimony is inconsistent with the ALJ’s RFC assessment); AR 3776 24 1 (rejecting plaintiff’s testimony regarding her upper extremity limitations). After an ALJ finds a 2 claimant not credible, “he [is] not required to include limitations that [claimant] claimed in 3 reliance solely on her subjective reports of pain.” Stenberg v. Comm’r Social Sec. Admin., 303 F. 4 App’x 550, 552 (9th Cir. 2008); see also Martini v. Berryhill, 2018 WL 587855, at *10 (C.D. 5 Cal. Jan. 29, 2018) (same). The ALJ also rejected Dr. Lee’s opinion and plaintiff admits that she
6 is not challenging that determination. See Dkt. 14 at 6 (stating that “[p]laintiff did not argue that 7 the ALJ made an error in regard to Dr. Lee’s opinion”). An ALJ is “not required to incorporate 8 evidence from the opinions of [the claimant]’s treating physicians, which were permissibly 9 discounted.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004). 10 Plaintiff takes issue with the fact that the ALJ did not explicitly discuss the evidence 11 plaintiff cites. See Dkt. 12 at 11. However, there is no requirement that an ALJ must discuss 12 every piece of evidence in the record. See Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 13 1012 (9th Cir. 2003) (stating that “in interpreting the evidence and developing the record, the 14 ALJ does not need to discuss every piece of evidence” (quotation marks omitted)); see also
15 Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998) (“An ALJ is not required to discuss every 16 piece of evidence submitted” and the “failure to cite specific evidence does not indicate that 17 such evidence was not considered[.]”) (internal citation omitted). 18 Plaintiff also makes cursory arguments regarding the ALJ’s findings that the Court finds 19 unpersuasive or harmless errors. For example, plaintiff takes issue with the ALJ’s findings 20 regarding the lack of atrophy and argues that there is no evidence that plaintiff’s impairment 21 would lead to atrophy. See Dkt. 12 at 17. However, plaintiff alleged she could only lift very light 22 things with her hand, such as paper. See id. at 16. Thus, it is reasonable to expect some atrophy, 23 and Courts routinely accept lack of atrophy as a valid reason to discount subjective reports. See 24 1 Jeffery P. v. Kijakazi, No. 2:20-CV-08813-GJS, 2022 WL 266817, at *4 (C.D. Cal. Jan. 28, 2 2022) (collecting cases). 3 Plaintiff makes other similar arguments regarding the ALJ’s interpretation of medical 4 evidence. See Dkt. 12 at 17–18 (discussing the ALJ’s findings regarding plaintiff’s test results). 5 Yet plaintiff offers no legal authority for the Court to find reversible errors. The Court
6 emphasizes that the ALJ is the final arbiter with respect to resolving ambiguities in the medical 7 evidence. See Andrews v. Shalala, 53 F.3d 1035, 1039–40 (9th Cir.1995) ( “The ALJ is 8 responsible for determining credibility, resolving conflicts in medical testimony, and for 9 resolving ambiguities.”); Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (the ALJ 10 has the duty and the authority to interpret the medical evidence). The Court will affirm the ALJ’s 11 decision where the evidence is susceptible to more than one rational interpretation. See Burch, 12 400 F.3d at 680–81; see also Batson v. Comm'r Soc. Sec., 359 F.3d 1190, 1193 (9th Cir. 13 2004) (the ALJ’s findings “are upheld if supported by inferences reasonably drawn from the 14 record”).
15 Because plaintiff fails to show any error in the ALJ’s rejection of limitations found in 16 plaintiff’s subjective symptom testimony and medical opinions, plaintiff cannot show that the 17 ALJ erred by failing to incorporate those limitations into the RFC. Thus, the Court finds no error 18 in the Commissioner’s ultimate disability determination. 19 /// 20 /// 21 /// 22 /// 23 /// 24 1 CONCLUSION 2 Based on these reasons and the relevant record, the Commissioner’s decision is affirmed 3 and the case is dismissed with prejudice. 4 Dated this 12th day of December, 2022. 5 A 6 J. Richard Creatura Chief United States Magistrate Judge 7
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