Furst v. Commissioner of Social Security Administration

D. Arizona

Furst v. Commissioner of Social Security Administration

DecidedMarch 27, 2020

Docket2:19-cv-00847

StatusUnknown

This text of Furst v. Commissioner of Social Security Administration (Furst v. Commissioner of Social Security Administration) is published on Counsel Stack Legal Research, covering District Court, D. Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Furst v. Commissioner of Social Security Administration, (D. Ariz. 2020).

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Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Monica Faith Furst, No. CV-19-00847-PHX-DLR

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 16 Plaintiff Monica Furst applied for supplemental security income in June 2014. 17 Following state agency denials of her application, Furst appeared with counsel and testified 18 at a hearing before an Administrative Law Judge (“ALJ”). In September 2017, the ALJ 19 decided that Furst was not disabled. In doing so, the ALJ followed the sequential five-step 20 analysis applicable to disability benefits applications. 20 C.F.R. § 404.1520(a)(4). The 21 ALJ found: (1) Furst has not engaged in substantial gainful activity since her application 22 date; (2) Furst’s severe impairments are liver disease, schizophrenia, and other psychotic 23 disorders; (3) Furst’s impairments do not automatically qualify her for benefits under 24 agency regulations; (4) notwithstanding her impairments, Furst retains the capacity to 25 perform light work, except she can only frequently balance and climb ramps or stairs, can 26 never climb ladders, ropes or scaffolds, must avoid working around moving machinery and 27 unprotected heights, and is limited to simple, routine, and repetitive tasks with only 28 occasional time around the public; and (5) considering Furst’s residual functional capacity, 1 age, education, and work experience, along with testimony from a vocational expert 2 (“VE”), Furst was not disabled because she could work as a production assembler, picking 3 table worker, or housekeeper. (AR 15-28.) The ALJ’s decision became final after the 4 denial of interagency review. Furst now asks the Court to review the ALJ’s decision. 5 The Court has jurisdiction pursuant to 42 U.S.C. § 405(g), reviews only those issues 6 raised by the party challenging the ALJ’s decision, and will uphold the ALJ’s decision 7 unless it contains harmful legal error or is not supported by substantial evidence. Orn v. 8 Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Furst argues the ALJ: (1) improperly found 9 Furst’s visual and lower back impairments are not severe at step two; (2) ignored a treating 10 source opinion; and (3) failed to account for Furst’s moderate limitation in concentration, 11 persistence, or pace when posing hypothetical questions to the VE. The Court takes these 12 arguments in turn. 13 1. Step two is a de minimis screening standard meant to dispose of groundless 14 claims. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). An ALJ may find that an 15 impairment is not severe “only if the evidence establishes a slight abnormality that has no 16 more than a minimal effect on an individual’s ability to work.” Webb v. Barnhart, 433 17 F.3d 683, 686 (9th Cir. 2005). As such, an ALJ’s conclusion that a plaintiff’s impairment 18 is not severe must be “clearly established by medical evidence.” Id. at 687. 19 Here, the ALJ cited some evidence suggesting Furst’s vision impairment is only a 20 slight abnormality, but the evidence does not so clearly rule out its severity. For example, 21 treatment notes from NP Bohannon on June 20, 2016 state that Furst is legally blind in her 22 right eye, and Furst testified that she does not drive or take the bus because it is too difficult 23 to read road signs. (AR 51, 1786, 1790.) Furst’s claim of severe vision impairment is not 24 wholly groundless. The ALJ should not have screened out this claim at step two. 25 The same is not true for Furst’s allegations of disabling lower back problems. The 26 record includes several treatment notes rating Furst’s back pain as a 7 or 8 out of 10, for 27 which Furst was prescribed pain relievers. (AR 1578, 1851, 1958-60.) But, as the agency 28 notes in its response brief, the medical record reveals that Furst’s back pain was not 1 particularly limiting. For example, musculoskeletal examinations were negative and 2 reflected good and normal range of motion, and Furst was observed to have normal gait 3 and station. (Doc. 13-14 (citing administrative records)). Though Furst undoubtedly 4 experiences back pain, the ALJ did not err in concluding that Furst’s back pain no more 5 than minimally affects her ability to function. 6 2. The ALJ failed to address a Mental Impairment Questionnaire completed by Dr. 7 Minerva Villafane. The agency argues that this error is harmless because Dr. Villafane’s 8 opinions are not supported by the record. It is not this Court’s place, however, to weigh 9 medical opinions in the first instance. The ALJ is responsible for weighing medical opinion 10 evidence and, therefore, a remand is appropriate so that the ALJ can address Dr. Villafane’s 11 assessment. 12 3. When determining whether disability claimants can perform other work in the 13 national economy, ALJs typically pose hypothetical questions to VEs. If an ALJ relies on 14 a VE’s answer to one of these hypothetical questions to conclude that jobs still exist for a 15 claimant notwithstanding her impairments, the hypothetical must include all the claimant’s 16 functional limitations. Brink v. Comm’r of Soc. Sec. Admin., 343 Fed. App’x. 211, 212 17 (9th Cir. 2009). Relying on Brink, Furst argues that the ALJ’s hypothetical question, which 18 limited Furst to simple, routine, and competitive tasks and only occasional public 19 interaction, did not adequately account for Furst’s moderate limitations in concentration, 20 persistence, and pace. (AR 19, 54.) This Court has rejected this exact argument in prior 21 cases, concluding that Brink (an unpublished, nonprecedential decision) is an outlier on 22 this point and inconsistent with binding Ninth Circuit precedent. See Stommes v. Comm’r 23 of Soc. Sec. Admin., No- CV-17-00071-PHX-DLR, 2018 WL 1531706, at *3 (D. Ariz. 24 Mar. 29, 2018). The ALJ’s hypothetical was proper. Accordingly, 25 // 26 // 27 // 28 // 1 IT IS ORDERED that the agency’s non-disability decision is REVERSED and || this matter REMANDED for further proceedings consistent with this decision. The Clerk || shall enter judgment accordingly and terminate this case. 4 Dated this 27th day of March, 2020. 5 6 (bog tha 9 Usted States Dictric Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Monica Faith Furst, No. CV-19-00847-PHX-DLR

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 16 Plaintiff Monica Furst applied for supplemental security income in June 2014. 17 Following state agency denials of her application, Furst appeared with counsel and testified 18 at a hearing before an Administrative Law Judge (“ALJ”). In September 2017, the ALJ 19 decided that Furst was not disabled. In doing so, the ALJ followed the sequential five-step 20 analysis applicable to disability benefits applications. 20 C.F.R. § 404.1520(a)(4). The 21 ALJ found: (1) Furst has not engaged in substantial gainful activity since her application 22 date; (2) Furst’s severe impairments are liver disease, schizophrenia, and other psychotic 23 disorders; (3) Furst’s impairments do not automatically qualify her for benefits under 24 agency regulations; (4) notwithstanding her impairments, Furst retains the capacity to 25 perform light work, except she can only frequently balance and climb ramps or stairs, can 26 never climb ladders, ropes or scaffolds, must avoid working around moving machinery and 27 unprotected heights, and is limited to simple, routine, and repetitive tasks with only 28 occasional time around the public; and (5) considering Furst’s residual functional capacity, 1 age, education, and work experience, along with testimony from a vocational expert 2 (“VE”), Furst was not disabled because she could work as a production assembler, picking 3 table worker, or housekeeper. (AR 15-28.) The ALJ’s decision became final after the 4 denial of interagency review. Furst now asks the Court to review the ALJ’s decision. 5 The Court has jurisdiction pursuant to 42 U.S.C. § 405(g), reviews only those issues 6 raised by the party challenging the ALJ’s decision, and will uphold the ALJ’s decision 7 unless it contains harmful legal error or is not supported by substantial evidence. Orn v. 8 Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Furst argues the ALJ: (1) improperly found 9 Furst’s visual and lower back impairments are not severe at step two; (2) ignored a treating 10 source opinion; and (3) failed to account for Furst’s moderate limitation in concentration, 11 persistence, or pace when posing hypothetical questions to the VE. The Court takes these 12 arguments in turn. 13 1. Step two is a de minimis screening standard meant to dispose of groundless 14 claims. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). An ALJ may find that an 15 impairment is not severe “only if the evidence establishes a slight abnormality that has no 16 more than a minimal effect on an individual’s ability to work.” Webb v. Barnhart, 433 17 F.3d 683, 686 (9th Cir. 2005). As such, an ALJ’s conclusion that a plaintiff’s impairment 18 is not severe must be “clearly established by medical evidence.” Id. at 687. 19 Here, the ALJ cited some evidence suggesting Furst’s vision impairment is only a 20 slight abnormality, but the evidence does not so clearly rule out its severity. For example, 21 treatment notes from NP Bohannon on June 20, 2016 state that Furst is legally blind in her 22 right eye, and Furst testified that she does not drive or take the bus because it is too difficult 23 to read road signs. (AR 51, 1786, 1790.) Furst’s claim of severe vision impairment is not 24 wholly groundless. The ALJ should not have screened out this claim at step two. 25 The same is not true for Furst’s allegations of disabling lower back problems. The 26 record includes several treatment notes rating Furst’s back pain as a 7 or 8 out of 10, for 27 which Furst was prescribed pain relievers. (AR 1578, 1851, 1958-60.) But, as the agency 28 notes in its response brief, the medical record reveals that Furst’s back pain was not 1 particularly limiting. For example, musculoskeletal examinations were negative and 2 reflected good and normal range of motion, and Furst was observed to have normal gait 3 and station. (Doc. 13-14 (citing administrative records)). Though Furst undoubtedly 4 experiences back pain, the ALJ did not err in concluding that Furst’s back pain no more 5 than minimally affects her ability to function. 6 2. The ALJ failed to address a Mental Impairment Questionnaire completed by Dr. 7 Minerva Villafane. The agency argues that this error is harmless because Dr. Villafane’s 8 opinions are not supported by the record. It is not this Court’s place, however, to weigh 9 medical opinions in the first instance. The ALJ is responsible for weighing medical opinion 10 evidence and, therefore, a remand is appropriate so that the ALJ can address Dr. Villafane’s 11 assessment. 12 3. When determining whether disability claimants can perform other work in the 13 national economy, ALJs typically pose hypothetical questions to VEs. If an ALJ relies on 14 a VE’s answer to one of these hypothetical questions to conclude that jobs still exist for a 15 claimant notwithstanding her impairments, the hypothetical must include all the claimant’s 16 functional limitations. Brink v. Comm’r of Soc. Sec. Admin., 343 Fed. App’x. 211, 212 17 (9th Cir. 2009). Relying on Brink, Furst argues that the ALJ’s hypothetical question, which 18 limited Furst to simple, routine, and competitive tasks and only occasional public 19 interaction, did not adequately account for Furst’s moderate limitations in concentration, 20 persistence, and pace. (AR 19, 54.) This Court has rejected this exact argument in prior 21 cases, concluding that Brink (an unpublished, nonprecedential decision) is an outlier on 22 this point and inconsistent with binding Ninth Circuit precedent. See Stommes v. Comm’r 23 of Soc. Sec. Admin., No- CV-17-00071-PHX-DLR, 2018 WL 1531706, at *3 (D. Ariz. 24 Mar. 29, 2018). The ALJ’s hypothetical was proper. Accordingly, 25 // 26 // 27 // 28 // 1 IT IS ORDERED that the agency’s non-disability decision is REVERSED and || this matter REMANDED for further proceedings consistent with this decision. The Clerk || shall enter judgment accordingly and terminate this case. 4 Dated this 27th day of March, 2020. 5 6 (bog tha 9 Usted States Dictric Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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