Hahto-Aune v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: February 9, 2021
• Docket: 3:20-cv-05524
• Status: Unknown

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 LISA H.-A., 8 Plaintiff, CASE NO. C20-5524-BAT 9 v. ORDER AFFIRMING THE 10 COMMISSIONER’S DECISION COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. 12

13 Plaintiff seeks review of the denial of her application for Disability Insurance Benefits. 14 Plaintiff contends the ALJ erred by (1) finding she can perform past work, although a prior ALJ 15 decision found she could not; (2) relying on vocational expert (“VE”) testimony that conflicts 16 with the Dictionary of Occupational Titles (“DOT”); (3) entering findings at steps three and four 17 and crafting a residual functional capacity (“RFC”) assessment that fail to account for all of her 18 limitations; and (4) failing to account for Plaintiff’s amendment of the alleged onset date. Dkt. 19 20 at 1. As discussed below, the Court AFFIRMS the Commissioner’s final decision and 20 DISMISSES the case with prejudice. 21 BACKGROUND 22 Plaintiff is currently 58 years old, has a bachelor’s degree and training as a pharmacy 23 technician, and her previous jobs include pharmacy technician. Tr. 60-61, 219. In April 2014, 1 she applied for benefits, alleging disability as of October 10, 2013. Tr. 191-94. Her application 2 was denied initially and on reconsideration. Tr. 123-29, 131-35. At an administrative hearing, 3 Plaintiff amended her alleged onset date to August 10, 2014. Tr. 689. The ALJ conducted 4 hearings in September 2015 and January 2016 (Tr. 47-97), and subsequently found Plaintiff not

5 disabled. Tr. 31-41. The Appeals Council denied Plaintiff’s request for review (Tr. 1-6), and 6 Plaintiff appealed to this court, which reversed the ALJ’s decision and remanded for further 7 administrative proceedings. Tr. 751-62. After remand hearings (Tr. 680-725), a different ALJ 8 subsequently found Plaintiff not disabled. Tr. 653-71. Plaintiff now seeks judicial review of the 9 ALJ’s decision. 10 THE ALJ’S DECISION 11 Utilizing the five-step disability evaluation process,1 the ALJ found:

12 Step one: Plaintiff did not engage in substantial gainful activity between her original alleged onset date and her date last insured (“DLI”) of December 31, 2018. 13

Step two: Through the DLI, Plaintiff had the following severe impairments: 14 affective/bipolar disorder and degenerative disc disease.

15 Step three: These impairments did not meet or equal the requirements of a listed impairment.2 16

RFC: Through the DLI, Plaintiff could perform light work with additional limitations: 17 she could occasionally reach overhead. She could understand, remember, and carry out instructions and tasks of occupations with a specific vocational preparation level of 1-3. 18 She could have occasional interaction with co-workers and supervisors, and infrequent and superficial interaction with the general public. 19

Step four: Plaintiff could perform her past work as a pharmacy technician. 20

Tr. 653-71. 21

23 1 20 C.F.R. §§ 404.1520, 416.920. 2 20 C.F.R. Part 404, Subpart P, Appendix 1. 1 DISCUSSION 2 A. Alleged Onset Date 3 Plaintiff amended her alleged onset date to August 10, 2014, at an administrative hearing. 4 See Tr. 689. The ALJ acknowledged this amendment early in the decision (Tr. 654), but then

5 adjudicated the period running from her original alleged onset date (October 10, 2013) through 6 the DLI of December 31, 2018. See Tr. 671. Plaintiff bears the burden of establishing the ALJ 7 harmfully erred and has failed to do so here. There is nothing showing the ALJ excluded 8 evidence relevant to Plaintiff's amended onset date by utilizing a mistaken onset date. Although 9 Plaintiff suggests the ALJ erred in relying on evidence from 2013, she has not shown that the 10 2013 evidence is wholly irrelevant to an understanding of Plaintiff’s functioning since August 11 10, 2014 the alleged onset date. See Dkt. 20 at 17-18. While medical evidence that predate the 12 alleged onset date is of limited value, Carmickle v. Comm'r of Soc. Sec. Admin., 533 F.3d 1155, 13 1165 (9th Cir.2008), “[t]he ALJ must consider all medical opinion evidence” and that can 14 include evidence before the onset date. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th

15 Cir.2008). Because the ALJ’s decision discusses the evidence that post-dates Plaintiff’s 16 amended alleged onset date as well, and does not give undue weight to the 2013 evidence, see 17 Tr. 656-70, the Court finds Plaintiff has failed to meet her burden to show harmful error flowing 18 from the ALJ’s failure to account for Plaintiff’s amendment of her alleged onset date. 19 B. Residual Functional Capacity 20 Plaintiff argues the ALJ erred in failing to account for her neck impairment, back 21 impairment, hand paresthesia, migraines, and mental impairments at step three and in the RFC 22 assessment. Dkt. 20 at 5-17. Here argument also raises challenges to the ALJ’s assessment of 23 Plaintiff’s testimony as well as various medical opinions. 1 1. Neck and back impairments 2 Plaintiff argues various reports and treatment notes mention pain and numbness resulting 3 from her neck and back impairments. Dkt. 20 at 5-6. She contends the ALJ “fails to include” 4 her hand/finger numbness and tingling “for impermissible reasons, and erroneously concludes

5 the Plaintiff ‘does not have’ a bilateral upper extremity impairment affecting fine and gross 6 motor manipulations at step three.” Dkt. 20 at 6 (quoting Tr. 658). Plaintiff also argues her 7 spinal impairments are worse than the ALJ found. Dkt. 20 at 6-8. 8 The ALJ found Plaintiff’s degenerative disc disease was a severe impairment at step two 9 (Tr. 656), but found at step three the impairment did not meet or equal a listing because the 10 record did not contain evidence satisfying all of the criteria of Listing 1.02 or 1.04, specifically 11 nerve root impingement or compromised spinal cord, or the inability to effectively perform fine 12 and gross motor manipulations. Tr. 658. 13 Plaintiff disputes the record fails to corroborate nerve root impingement or compromised 14 spinal cord, contending that findings of “severe foraminal stenosis” mean the same thing. Dkt.

15 20 at 7. But the ALJ acknowledged Plaintiff’s severe bilateral foraminal stenosis (Tr. 658), and 16 even if the ALJ could or should have found that this finding was equivalent to nerve root 17 impingement or compromised spinal cord, there are other elements of Listing 1.04 (including 18 neuroanatomic distribution of pain, limitation of motion of the spine, motor loss accompanied by 19 sensory or reflex loss, and positive straight leg-raising both sitting and supine) that Plaintiff does 20 not show she satisfies. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04. Thus, Plaintiff fails to 21 establish the ALJ erred in finding she did not meet or equal Listing 1.04. 22 Likewise, Plaintiff has not shown the ALJ erred in finding she did not meet or equal 23 Listing 1.02. Plaintiff points to various places in the record where she alleged hand/finger 1 numbness (Dkt. 20 at 5-8), but does not show or argue these reports or findings are equivalent to 2 a finding that Plaintiff has lost the ability to effectively perform gross and fine movements, as 3 required by Listing 1.02. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.02. As such, Plaintiff has 4 not established the ALJ erred in finding that she did not meet or equal Listing 1.02.

5 To the extent Plaintiff also argues the ALJ erred in failing to include any RFC limitations 6 resulting from her hand/finger numbness or back pain (Dkt. 20 at 8-11), the ALJ discussed 7 Plaintiff’s allegations of disabling limitations in this regard and explained he found her 8 allegations to be inconsistent with her own statements in her agency paperwork (denying 9 physical limitations in May 2014 (Tr. 253)) along with the many normal findings as to 10 functionality in the medical record. Tr. 661-63. Although Plaintiff contends she did not know at 11 the time she completed her paperwork she was required to list every symptom (Dkt. 20 at 10), 12 and that she continued to report symptoms to providers throughout the adjudicated period, 13 Plaintiff fails to establish the ALJ erred in relying on inconsistencies between her allegations and 14 her own statements as well as the many normal findings of providers to discount Plaintiff’s

15 allegations of disabling physical limitations pertaining to her degenerative disc disease. See 16 Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (ALJ may consider a claimant’s 17 inconsistent or non-existent reporting of symptoms); Carmickle v. Comm’r of Social Sec. Admin., 18 533 F.3d 1155, 1161 (9th Cir. 2008) (“Contradiction with the medical record is a sufficient basis 19 for rejecting the claimant’s subjective testimony.”). 20 The Court declines to reweigh the evidence in Plaintiff’s favor and finds Plaintiff has not 21 met her burden to show the ALJ harmfully erred in assessing her back and neck impairments. 22 23 1 2. Migraines 2 The ALJ found Plaintiff’s migraines were not a severe impairment at step two because 3 Plaintiff’s allegations of migraine frequency and severity were contradicted by the record and the 4 record also showed medication was effective in treating the migraines. Tr. 656-57. The ALJ

5 also found that even if migraines were considered a severe impairment at step two, the record did 6 not establish greater limitations caused by migraines than the ALJ included in the RFC 7 assessment. Tr. 657. 8 Plaintiff contends the ALJ relied on a single treatment note to discount the severity of her 9 migraines (Dkt. 20 at 11), but this argument mischaracterizes the content of the ALJ’s decision. 10 See Tr. 656-57 (summarizing multiple treatment notes spanning years). Furthermore, Plaintiff 11 has not shown the evidence established the existence of any limitation caused by her migraines, 12 which the ALJ should have included in the RFC assessment. The ALJ discussed Plaintiff’s 13 allegations and explained why he discounted them, and Plaintiff has not shown these reasons are 14 erroneous. See Tr. 656-57. Because the ALJ properly considered Plaintiff’s alleged limitations

15 caused by her migraines, any error in the ALJ’s failure to include migraines at step two would be 16 harmless. See Buck v. Berryhill, 869 F.3d 1040, 1048-49 (9th Cir. 2017). 17 3. Mental impairments 18 Lastly, Plaintiff argues the ALJ erred in discounting her allegations as to her mental 19 limitations. In finding Plaintiff’s mental limitations were less severe than she alleged, the ALJ 20 pointed to (1) normal mental status examinations, (2) treatment notes documenting minimal 21 psychiatric symptoms, and (3) serious symptom flares occurring in the context of lack of 22 compliance with medications or acute stress related to a death in the family. Tr. 664-66. The 23 1 ALJ also discounted certain opinion evidence and lay statements describing mental limitations 2 inconsistent with the record. Tr. 666-70. 3 Plaintiff contends the record should be interpreted to support her allegations rather than 4 discount them (Dkt. 20 at 14-17), but the argument rests on an alternative interpretation of the

5 record rather than establishing error in the ALJ’s decision. For example, Plaintiff disagrees that 6 her symptom exacerbation is linked to lack of medication and/or situational stressors, contending 7 the record shows exacerbations “happen whether on or off medication.” Dkt. 10 at 14 (citing Tr. 8 995-1008, 1015-18, 1087-88, 1138-39.) Plaintiff does not show she was hospitalized for 9 psychiatric symptoms at a time that she was compliant with medications, however, and thus does 10 not show the ALJ erred in finding a link between her hospitalizations and her lack of compliance 11 with medications. Tr. 665-66. Further the ALJ did not find medications resolved all of 12 Plaintiff’s mental symptoms, and instead included significant mental restrictions in the RFC 13 assessment. See Tr. 660. Thus, Plaintiff’s identification of treatment notes mentioning the 14 existence or report of symptoms even while medication-compliant does not demonstrate the ALJ

15 harmfully erred. 16 Additionally, although Plaintiff argues the ALJ erred in relying on her lack of medication 17 compliance as a reason to discount her allegations without considering why she failed to comply 18 (Dkt. 20 at 14-15), the ALJ in fact discussed the evidence pertaining to Plaintiff’s lack of 19 compliance at length, and concluded that her lack of compliance was volitional rather than 20 caused by her mental impairments. Tr. 665-66. Plaintiff has not shown the ALJ erred in these 21 findings. 22 Plaintiff further challenges the ALJ’s assessment of the medical opinions and lay 23 statements, arguing the ALJ erred in relying on one treatment note as evidence Plaintiff 1 maintained a normal presentation during that appointment, when many other appointments 2 document abnormal symptoms. Dkt. 20 at 15-17. The argument overlooks the other reasons the 3 ALJ discounted the opinion and lay statements, specifically the normal mental status 4 examinations, the many normal findings contained in multiple treatment notes, and Plaintiff’s

5 improvement when compliant with medication. Tr. 668-70. The ALJ thus did not impermissibly 6 rely on one treatment note out of context, as Plaintiff contends. 7 To the extent Plaintiff argues the ALJ relied on reasons previously rejected in a court 8 remand order to discount the opinion of examining psychiatrist Kathleen Andersen, M.D., 9 Plaintiff overlooks the ALJ’s explanation in the current decision. The court remand order 10 suggested that a one-time examination report cannot be discounted simply as based on a one- 11 time examination, particularly because Dr. Andersen reviewed Plaintiff’s records. See Tr. 759. 12 But the ALJ explained in the current decision that Plaintiff’s presentation during Dr. Andersen’s 13 evaluation was “drastically different” than her presentation during appointments throughout the 14 relevant period, and emphasized that Dr. Andersen herself highlighted her limited perspective on

15 Plaintiff’s functioning. Tr. 668-69 (referencing Tr. 465 (“I interacted briefly with [Plaintiff].”), 16 475 (“Because of [Plaintiff’s] mental state, I was not able to carry out the interview. However, I 17 was asked to provide what information I have about my brief interaction with her.”), 480 (“My 18 interactions with her were brief, and it would be difficult to draw diagnostic conclusions.”)). The 19 ALJ adequately explained why Dr. Andersen’s limited perspective, in conjunction with 20 contrasting treatment notes from throughout the adjudicated period, undermined the reliability of 21 her conclusions. Tr. 668-69. Plaintiff has not shown the ALJ merely reiterated reasoning 22 already rejected in a prior court remand order, or shown the ALJ’s reasoning in the current 23 decision was erroneous. See 20 C.F.R. §§ 404.1527(c)(6), 416.927(c)(6) (providing that in 1 considering the weight to afford a medical opinion, an ALJ may consider the extent to which a 2 medical source is familiar with the other information in a claimant’s record). 3 Plaintiff broadly states the ALJ failed to provide legally sufficient reasons to discount 4 other opinions and lay statements (Dkt. 20 at 16-17), but does not address the ALJ’s reasons or

5 explain why they are insufficient. See Tr. 668-70. Accordingly, the Court finds that Plaintiff has 6 failed to meet her burden to show harmful legal error in the ALJ’s decision with respect to this 7 evidence. 8 C. Past Relevant Work 9 In the prior decision, the ALJ found considering Plaintiff’s RFC, she could not perform 10 her past work. See Tr. 40. That decision was reversed and vacated, and in the current decision, 11 which contains a similar but not identical RFC assessment, the ALJ relied on VE testimony to 12 find Plaintiff can perform her past work as a pharmacy technician. Tr. 670-71. 13 Plaintiff argues the ALJ erred in the current decision in failing to give res judicata effect 14 to the RFC assessment and step-four finding contained in the prior decision. Dkt. 20 at 2-3.

15 This argument is unfounded because the prior ALJ decision was reversed and vacated, and the 16 ALJ on remand held a new hearing and considered an expanded adjudicated period. These facts 17 distinguish this case from the cases cited by Plaintiff, which discuss res judicata in the context of 18 a prior administratively final ALJ decision. See Chavez v. Bowen, 844 F.2d 691, 692-93 (9th 19 Cir. 1988); Drake v. Saul, 805 Fed. Appx. 467 (9th Cir. Mar. 5, 2020). Plaintiff cites no 20 authority suggesting that an ALJ should give res judicata effect to a prior decision that has been 21 reversed and vacated, and the Court is not aware of any such authority. 22 23 1 D. Vocational Expert Testimony 2 Lastly, Plaintiff argues the ALJ erred in relying on VE testimony at step four without 3 resolving the conflicts between the testimony and the DOT. An ALJ has an affirmative 4 responsibility to inquire as to whether a VE’s testimony is consistent with the DOT and, if there

5 is a conflict, determine whether the VE’s explanation for such a conflict is reasonable. Massachi 6 v. Astrue, 486 F.3d 1149, 1152-54 (9th Cir. 2007). 7 At the hearing, the ALJ asked the VE whether a person limited to medium work with 8 occasional overhead reaching, with the ability to perform work with a specific vocational 9 preparation level of 3 or less, would be able to perform Plaintiff’s past relevant work. Tr. 717. 10 The VE stated a person with that RFC could perform the job of pharmacy technician. Id. The 11 ALJ then added a restriction to occasional interaction with coworkers and supervisors, and 12 infrequent and superficial interaction with the general public. Tr. 718. The VE testified the 13 pharmacy technician job would still remain feasible. See id. In conclusion, the VE stated his 14 testimony was based on the DOT. Tr. 724.

15 Plaintiff notes the DOT defines the pharmacy technician job to require frequent reaching, 16 handling, and fingering, and suggests the DOT is therefore inconsistent with the ALJ’s finding 17 that Plaintiff is restricted to occasional overhead reaching. Dkt. 20 at 4. But the DOT does not 18 explicitly state or suggest the pharmacy technician job requires frequent overhead reaching. See 19 DOT 074.382-010, available at 1991 WL 646728. In the absence of either a specific statement 20 in the DOT or a logical inference based on the DOT job description, Plaintiff has failed to 21 identify an obvious conflict between the VE testimony and the DOT as to the reaching 22 requirements of the pharmacy technician job. See Gutierrez v. Colvin, 844 F.3d 804, 808 (9th 23 Cir. 2016) (holding that although the DOT defined a job to require frequent reaching, a 1 restriction on overhead reaching is not necessarily implicated where the need to reach overhead 2 is unlikely or unforeseeable in that particular job). 3 Plaintiff also argues the VE’s testimony was inconsistent with the DOT because a 4 pharmacy technician assists a pharmacist, and thus there is an implied conflict between the DOT

5 and the social restrictions in the RFC assessment. The DOT does define the pharmacy technician 6 job to require rendering assistance to a pharmacist in carrying out various duties, but it also 7 defines the job to require a “not significant” degree of “taking instructions-helping”. See DOT 8 074.382-010, available at 1991 WL 646728. Furthermore, the VE was asked specifically about 9 the social requirements of the pharmacy technician job and the VE explained that a person with 10 Plaintiff’s social restrictions could still perform the job, given its low “people” score. Tr. 719- 11 21. Thus, again, Plaintiff has failed to identify an obvious conflict between the VE’s testimony 12 and the DOT, and has not shown that the ALJ erred in relying on the testimony in entering step- 13 four findings. 14 The Court according concludes Plaintiff fails to show the ALJ improperly relied on VE

15 testimony that conflicts with the DOT at step four. 16 CONCLUSION 17 For the foregoing reasons, the Commissioner’s decision is AFFIRMED and this case is 18 DISMISSED with prejudice. 19 DATED this 9th day of February 2021. 20 A 21 BRIAN A. TSUCHIDA Chief United States Magistrate Judge 22