1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Bevin Alison LyBarger, No. CV-23-00422-TUC-RCC (BGM)
10 Plaintiff, REPORT AND RECOMMENDATION
11 v.
12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Pursuant to 42 U.S.C. § 405(g), Plaintiff Bevin Alison LyBarger seeks judicial 16 review of a final decision by the Commissioner of Social Security. (Doc. 1.) This matter 17 was referred to Magistrate Judge Bruce G. Macdonald for a report and recommendation 18 and has been fully briefed. (Docs. 18, 28, 30, 34.) Based on the administrative record 19 (AR) and the parties’ briefings, the Magistrate Judge recommends that the District Court, 20 upon its independent review, deny Plaintiff’s appeal and close this case. 21 PROCEDURAL HISTORY1 22 On July 27, 2016, Bevin LyBarger filed an application for disability insurance 23 benefits under Title II of the Social Security Act (SSA). (AR 155.) Plaintiff alleged she 24 had been disabled and unable to work since March 2, 2015, due to borderline personality 25
26 1 In January 2020, Plaintiff filed a supplemental security income (SSI) application under Title XVI of the SSA. (See AR 2898.) The claim was denied by ALJ Baum and the Appeals 27 Council. (Id.) ALJ Havens denied Plaintiff’s request to reopen that application and consider 28 it together with her disability insurance benefits (DIB) claim. (AR 2161-62, 2191-92.) As such, Plaintiff’s SSI claim is not before this Court. 20 C.F.R. § 416.1481. 1 disorder and post-traumatic stress disorder (PTSD). (AR 155-61.) Prior to March 2015, 2 Plaintiff worked at a Wal-Mart, as a truck driver, a cable installer, and a subscription cab 3 driver. (AR 245-46.) Plaintiff’s disability application was denied upon initial review, (AR 4 60-71), and upon reconsideration, (AR 73-88). After denial of her reconsideration request, 5 Plaintiff requested a hearing by an administrative law judge (ALJ). (AR 101-02.) 6 First Administrative Hearing 7 On July 5, 2018, Plaintiff’s first administrative hearing was held. (AR 32-59.) ALJ 8 Baum found Plaintiff had the severe impairments of PTSD, gastrointestinal disorder, 9 insomnia, and obesity coupled with lumbar spondylosis. (AR 15.) The ALJ found that 10 Plaintiff had the residual functional capacity (RFC) to perform medium work. (AR 18.) 11 He also determined that Plaintiff could perform work that existed in significant numbers in 12 the national economy. (AR 24.) The ALJ concluded that Plaintiff was not disabled under 13 the SSA. (AR 25.) The Appeals Council denied Plaintiff’s request for review. (AR 1.) 14 District Court Remand 15 On March 29, 2021, United States Magistrate Judge Lynnette C. Kimmins 16 remanded Plaintiff’s case back to the Commissioner for a new hearing because no medical 17 source familiar with Plaintiff’s mental health records offered a functional limitations 18 opinion. (AR 2279-80.) On remand, the Commissioner was instructed to obtain a 19 functional limitations opinion concerning Plaintiff’s mental health and review additional 20 medical records regarding her insomnia and memory impairment. (AR 2280.) 21 Second Administrative Hearing 22 On November 15, 2021, ALJ Baum conducted a second administrative hearing. 23 (AR 2218-49.) After the ALJ again denied Plaintiff’s claim, (AR 2307-2320), the Appeals 24 Council remanded the case for further proceedings with a new ALJ. (AR 2331-33.) 25 Third Administrative Hearing 26 On September 15, 2022, Plaintiff’s third administrative hearing was held. (AR 27 2188-2217.) ALJ Havens found that Plaintiff had the severe impairments of degenerative 28 disc disease, gastrointestinal disorder, insomnia, obesity, bipolar disorder, personality 1 disorder, anxiety, and PTSD. (AR 2164.) The ALJ determined that Plaintiff had the RFC 2 to perform medium work with limitations. (AR 2167.) The ALJ found that there were jobs 3 that existed in significant numbers in the national economy that Plaintiff could perform. 4 (AR 2176.) The ALJ concluded that Plaintiff was not disabled under the SSA. (AR 2177.) 5 The Appeals Council denied Plaintiff’s request for review. (AR 2151-54.) 6 Second District Court Complaint 7 On September 5, 2023, Plaintiff filed the complaint at hand asserting that the 8 Commissioner failed to support its decision by substantial evidence and that its decision 9 was based on legal error. (Doc. 1 at 3.) On November 3, 2023, the Commissioner filed 10 the administrative record. (Docs. 15-17.) On May 28, 2024, this case was reassigned to 11 Magistrate Judge Bruce G. Macdonald. (Doc. 18.) On August 21, 2024, a certified copy 12 of the administrative record was delivered to Plaintiff’s mailing address because Plaintiff 13 asserted that she had not received any previous answer or a copy of the administrative 14 record from the Commissioner. (Docs. 20, 23, 26, 27.) On September 30, 2024, Plaintiff 15 filed her opening brief. (Doc. 28.) On October 31, 2024, the Commissioner filed its 16 answering brief, (Doc. 30); and on December 30, 2024, Plaintiff filed her reply, (Doc. 34). 17 This Report and Recommendation follows. 18 BACKGROUND 19 Born on June 12, 1973, Plaintiff was forty-three years old when she filed for 20 disability benefits. (AR 155.) She earned her general equivalency diploma and obtained 21 two associate degrees in addition to receiving her commercial driver’s license (CDL). (AR 22 182, 320.) Plaintiff worked a number of jobs from 2008 through February 2015, including 23 truck driver, cable installer, college tutor, and cab driver. (AR 182.) Plaintiff testified that 24 on March 2, 2015, she had an insomnia-related breakdown and was unable to concentrate 25 on her work. (AR 2193-94.) Plaintiff pulled over to the side of the road, called her boss, 26 and quit her job. (AR 2194.) She has not sought employment since. (AR 2194.) From 27 March 2015 through June 2017, Plaintiff lived at home with her mother.2 (AR 2198-99.) 28 2 To obtain disability benefits, a claimant must demonstrate that she was disabled prior to 1 CLAIM EVALUATION 2 An administrative law judge employs a five-step process to evaluate disability 3 claims. Ford v. Saul, 950 F.3d 1141, 1148 (9th Cir. 2020). The burden of proof is on the 4 claimant at steps one through four. Id. To demonstrate a disability, the claimant must 5 show that: (i) she is not working; (ii) she has a severe mental or physical impairment; (iii) 6 the impairment meets or equals the requirements of a listed impairment under the SSA, 7 and; (iv) she has an RFC that precludes her from performing her past work. See 20 C.F.R. 8 § 404.1520(a)(4)(i)-(v); Ford, 950 F.3d at 1148-49. At step five, the burden shifts to the 9 ALJ to show that “the claimant can perform a significant number of other jobs in the 10 national economy.” Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir. 2002). This five- 11 step determination is based upon the claimant’s RFC, age, work experience, and education. 12 Hoopai v. Astrue, 499 F.3d 1071, 1075 (9th Cir. 2007). If the ALJ conclusively finds the 13 claimant “disabled” or “not disabled” at any point in the five-step process, the ALJ does 14 not proceed to the next step. 20 C.F.R. § 404.1520(a)(4). 15 ADMINISTRATIVE DECISION 16 The ALJ found that Plaintiff met the insured status requirements for disability 17 benefits through June 30, 2017. (AR 2164.) At step one, the ALJ determined that Plaintiff 18 had not engaged in substantial gainful activity since her alleged disability onset date of 19 March 2, 2015. (Id.) At step two, the ALJ found Plaintiff to have the severe impairments 20 of degenerative disc disease, insomnia, gastrointestinal disorder, obesity, bipolar disorder, 21 personality disorder, anxiety, and PTSD. (Id.) At step three, the ALJ determined that none 22 of Plaintiff’s impairments, alone or in combination with other impairments, were disabling. 23 (AR 2165.) The ALJ next determined that Plaintiff had the RFC to perform medium work 24 with certain limitations. (AR 2167.) In assessing Plaintiff’s RFC, the ALJ found that her
25 her last insured date. Armstrong v. Comm'r of Soc. Sec. Admin., 160 F.3d 587, 589 (9th 26 Cir. 1998). Plaintiff’s last insured date was June 30, 2017. (AR 2164.) Any deterioration in the condition after the period of eligibility is immaterial. See Johnson v. Shalala, 60 27 F.3d 1428, 1434 (9th Cir. 1995). As such, the ALJ asked Plaintiff questions limited to her 28 period of eligibility, which was the time between her alleged disability onset date of March 2, 2015, and her last insured date of June 30, 2017. (See, e.g., AR 2198.) 1 symptom statements were partially inconsistent with the relevant evidence of record. (AR 2 2173-74.) At step four, the ALJ determined that Plaintiff was unable to perform any past 3 relevant work. (AR 2175). Proceeding to step five, the ALJ found that Plaintiff could have 4 performed jobs that existed in significant numbers in the national economy, including linen 5 room attendant, laundry worker, or hospital cleaner, (AR 2176-77). The ALJ concluded 6 that Plaintiff was not disabled at any time from her alleged disability onset date of 7 March 2, 2015, through June 30, 2017, the date of last insured. (Id.) 8 LEGAL STANDARD 9 Federal court review of social security determinations is limited. Treichler v. 10 Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). A district court may 11 “set aside the Commissioner’s denial of disability insurance benefits when the ALJ’s 12 findings are based on legal error or are not supported by substantial evidence in the record 13 as a whole.” Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence 14 is more than a mere scintilla but less than a preponderance—it is such relevant evidence 15 that a reasonable mind might accept as adequate to support the conclusion.” Orteza v. 16 Shalala, 50 F.3d 748, 749 (9th Cir. 1995). If the evidence can support either party, the 17 court may not substitute its judgment for that of the ALJ. Matney ex rel. Matney v. Sullivan, 18 981 F.2d 1016, 1019 (9th Cir. 1992). The ALJ is responsible for resolving conflicts in the 19 testimony, determining credibility, and for resolving ambiguities in the record. Andrews 20 v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 21 DISCUSSION 22 As a preliminary matter, the Court finds Plaintiff fails to raise issues in her opening 23 brief that she includes in a letter attached to her complaint. (See Docs. 1 at 5-12; 28 at 1- 24 3.) The letter contains Plaintiff’s personal history interspersed with unsupported symptom 25 testimony and objections linked to non sequitur exhibit references. (See Doc. 1 at 5-12.) 26 Because the Court has given Plaintiff the explicit admonishment that it will only review 27 issues which are argued specifically and distinctly in a party’s opening brief, (see Doc. 6 28 at 2), it will not address arguments that appear elsewhere with limited exception. See Indep. 1 Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (ruling that the court 2 “will not consider any claims that were not actually argued in [the] appellant's opening 3 brief”); Smith v. Comm'r of Soc. Sec. Admin., 678 F. Supp. 3d 1131, 1134 (D. Ariz. 2023) 4 (same); Tianna B. v. Kijakazi, No. 4:20-CV-5125, 2022 WL 17224486, at *5 (E.D. Wash. 5 Mar. 15, 2022) (finding issues not specifically argued in claimant’s opening brief waived). 6 If an issue is not raised in an opening brief, the Court may only review the issue for 7 good cause shown, manifest injustice, or prejudice to the opposing party. United States v. 8 Ullah, 976 F.2d 509, 514 (9th Cir. 1992); see also Farley v. Colvin, 231 F. Supp. 335, 341 9 (N.D. Cal. 2017) (applying standard to Social Security appeal); Shade R. v. Comm'r of Soc. 10 Sec., No. C-20-1790, 2022 WL 36894, at *2 (W.D. Wash. Jan. 3, 2022) (same). The only 11 issue here that meets any of these criteria is Plaintiff’s argument that the ALJ erred by 12 improperly discounting the opinion of Susan Guinn Lahm. (See Doc. 1 at 6.) The Court 13 exercises its discretion to resolve this issue because the Commissioner had the opportunity 14 to respond. (See Doc. 30 at 5-7.) The Court includes the issue in its analysis of whether 15 the ALJ ignored or improperly discounted a treating provider’s opinion. 16 Plaintiff’s Arguments 17 Plaintiff asserts that the ALJ erred in four ways: (i) she ignored Plaintiff’s subjective 18 pain testimony; (ii) she ignored or improperly discounted the opinions of Plaintiff’s treating 19 providers; (iii) she failed to consider Plaintiff’s severe medically determinable impairments 20 collectively; and (iv) she determined that Plaintiff could perform jobs within the national 21 economy that medical evidence did not support. (Docs. 1 at 6; 28 at 1-3.) Plaintiff requests 22 that the Court overturn the Commissioner’s decision and grant benefits or remand the 23 decision for reconsideration of the evidence. (Doc. 1 at 3-4.) The Court finds that the ALJ 24 properly discounted Plaintiff’s subjective symptom testimony, considered and properly 25 discounted the opinions of Plaintiff’s treating providers, evaluated the collective severity 26 of Plaintiff’s medical impairments, and correctly determined that Plaintiff could perform 27 certain jobs within the national economy based on the substantial evidence before her. As 28 such, Plaintiff’s complaint should be denied and her appeal dismissed. 1 I. Subjective Symptom Testimony Properly Discounted 2 Plaintiff asserts that the ALJ ignored her subjective symptom testimony even though 3 her symptoms are heavily documented in her medical file. (Doc. 28 at 2.) When a claimant 4 has a medically determinable impairment that could reasonably be expected to produce the 5 pain or other symptoms alleged, and the record fails to contain evidence of malingering, 6 the ALJ can reject the claimant’s testimony about the severity of her symptoms “only by 7 offering specific, clear and convincing reasons for doing so.” Smolen v. Chater, 80 F.3d 8 1273, 1281 (9th Cir. 1996). Under the clear and convincing standard, the ALJ must identify 9 what testimony is not credible and provide evidence that undermines those specific claims. 10 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014). The findings must be “sufficiently 11 specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit 12 the claimant's testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995). If the ALJ's 13 finding is “supported by substantial evidence in the record, [the court] may not engage in 14 second-guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 15 The ALJ determined that Plaintiff’s subjective symptom testimony was “not entirely 16 consistent with the medical evidence and other evidence in the record[.]” (AR 2168.) The 17 ALJ provided clear and convincing reasons supported by substantial evidence in making 18 this determination. (See AR 2168-73.) 19 Administrative Hearing Testimony 20 At Plaintiff’s September 15, 2022, administrative hearing, she testified that her 21 disability began on March 2, 2015, when she had an insomnia-related breakdown and was 22 unable to sufficiently concentrate to do her work. (AR 2193-94.) Plaintiff stated that she 23 pulled over to the side of the road, called her boss, and quit her job. (AR 2194.) She also 24 testified that she was getting between forty-five minutes and four hours of sleep per night. 25 (AR 2199.) Plaintiff asserted that her insomnia and sciatica prevented her from working 26 at the time and that “past abusive things” were coming to the surface. (AR 2200-01.) 27 Plaintiff testified that since 2016, she had a hard time finishing books, (AR 2201), 28 and that since 2017, her concentration and memory had worsened, (AR 2202). She also 1 testified that there were some improvements too. (Id.) She quit smoking, which gave her 2 an additional hour or more of sleep per night, and she eliminated nearly all processed foods 3 from her diet. (Id.) While Plaintiff shared that she had multiple past suicide attempts, she 4 asserted that she had not had suicidal thoughts in a long time. (AR 2209.) Plaintiff also 5 shared that her improved diet had kept her neuropathy pain down. (AR 2203.) 6 When it came to discussion of Plaintiff’s work-related abilities, she became more 7 assertive of her alleged impairments. (AR 2210-11, 2216.) She said that if she were to 8 return to work, she wouldn’t know what she was doing half the time because she is easily 9 forgetful. (AR 2210.) She testified that she could be walking across the living room at 10 home intent on going to the bathroom and forget where she was going. (Id.) She asserted 11 that she was suffering from a gradual decline in her faculties and that if she could go back 12 to truck driving she would. (AR 2211.) Plaintiff added that there was no way that she 13 could stand or sit for six to eight hours a day with her neuropathy because of the shooting 14 pains that come on in an instance. (AR 2216.) She testified that the pain can be so severe 15 that she needs to lay in bed for up to two hours before it subsides. (Id.) Plaintiff stated she 16 refuses to take pain medication like Gabapentin because of its negative side effects. (Id.) 17 A. Symptom Evaluation Supported by Substantial Evidence 18 The ALJ discounted Plaintiff’s subjective symptom testimony and self-reported 19 limitations based on objective medical evidence and Plaintiff’s own daily activities, which 20 were inconsistent with her testimony and limitations. The United States Court of Appeals 21 for the Ninth Circuit has supported both methods for properly discounting subjective 22 symptom testimony. See Smartt v. Kijakazi, 53 F.4th 489, 498 (9th Cir. 2022) (“When 23 objective medical evidence in the record is inconsistent with the claimant's subjective 24 testimony, the ALJ may indeed weigh it as undercutting such testimony.”); Lingenfelter v. 25 Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007) (ruling that an ALJ may discount a claimant’s 26 subjective symptom testimony by considering “whether the claimant engages in daily 27 activities inconsistent with the alleged symptoms”). The Court reviews the ALJ’s decision 28 as to the symptoms that Plaintiff alleges preclude her ability to work. 1 1. Insomnia 2 While Plaintiff complained that an insomnia-related breakdown forced her to quit 3 her job and that she was only sleeping between 45 minutes and 4 hours per night, the ALJ 4 highlighted medical evidence that told a different story. (AR 2168-70.) In October 2016, 5 Plaintiff informed examining provider, psychologist Beverly Yoches, that she ended her 6 job because she “had a lot of problems with management,” that she slept 4 to 5 hours per 7 night, that she did not awaken during the night, and that she felt rested in the morning. (AR 8 320; 2168.) In May 2016, Plaintiff told Dr. Paramveer Bhugra, that while she suffered 9 episodes of apnea, she went to sleep at 9:00 p.m. (AR 2049; 2169.) During a May 2017 10 appointment with Nurse Practitioner (NP) Bernadine Miu, while reporting insomnia that 11 worsened with stress, Plaintiff denied awakening with choking or awakening with 12 shortness of breath, cataplexy, changes in appetite, decreased libido, gasping during sleep, 13 headache upon awakening, heartburn, increased fatigue, irritability, malocclusion, nasal 14 congestion, personality changes, sleepwalking, weight gain, wheezing or witnessed apnea 15 or irregular nighttime breathing. (AR 1411; 2170.) Plaintiff confirmed night terrors with 16 the same provider but stated that she would rather stay awake than have the terrors. (AR 17 1415; 2170.) The ALJ noted that while multiple providers encouraged Plaintiff to undergo 18 a sleep study, there was no confirmed diagnosis of sleep apnea is Plaintiff’s medical file, 19 nor was there medical evidence that she had ever undergone a sleep study. (AR 2169-70.) 20 The ALJ observed that Plaintiff failed to report complaints about insomnia, night terrors, 21 or daytime fatigue to her therapist once she was on a medication regimen. (AR 2170.) The 22 ALJ limited Plaintiff’s exposure to heights, moving machinery, and driving a car due to 23 possible daytime fatigue related to poor sleep. (Id.) The ALJ found that the evidence did 24 not support that Plaintiff would miss work or be off task such that an insomnia-related 25 limitation should be included in her residual functional capacity determination. (Id.) 26 2. Post-Traumatic Stress Disorder 27 Plaintiff testified that she stopped working due to several conditions coming to a 28 head including PTSD symptoms. (AR 2200-01.) The ALJ observed that treatment notes 1 from Desert Senita Community Health Center reflected that Plaintiff was negative for 2 depression, feeling down, hopelessness, and little interest or pleasure in doing things. (AR 3 956; 2170.) The ALJ added that there did not appear to be treatment for depression, PTSD, 4 or any other psychiatric complaints until March 2016 when Plaintiff reported depression 5 with anxiety. (AR 1083; 2170.) The ALJ observed that this was consistent with Plaintiff’s 6 reports to the consultative examiner that she had only intermittent psychiatric treatment. 7 (AR 320; 2170.) At Plaintiff’s March 2016 appointment with Dr. Walter Cayce, she was 8 positive for difficulty with concentration and excessive worry but negative for anxiety, 9 depression, feeling down, depressed, or hopeless, impaired judgment, personality changes, 10 or racing thoughts. (AR 1080; 2170.) No particular treatment was prescribed other than 11 Diazepam for sleep. (AR 1082; 2170.) At a July 2016 consultation reviewed by Licensed 12 Professional Counselor (LPC) Susan Guinn Lahm, Plaintiff described a good day as getting 13 everything done and doing things such as cooking or playing games, and a bad day as 14 having a lot to do and feeling overwhelmed. (AR 1033; 2170.) At an August 2016 follow- 15 up appointment, Plaintiff indicated that she was “looking for a diagnosis to apply for 16 disability.”3 (AR 1194; 2171.) In addition to this evidence, the ALJ provided two pages 17 of additional reasons for discounting Plaintiff’s PTSD testimony. (See AR 2170-72.) 18 3. Lower Back Pain 19 Plaintiff finally testified that her sciatica issues contributed to her not being able to 20 work including her inability to stand or sit for six to eight hours a day. (AR 2200, 2216.) 21 The ALJ confirmed that imaging showed spondylosis in the claimant's lumbar spine and 22 that she was referred to an orthopedic surgeon for L5 lumbar radiculopathy complaints, but 23 the ALJ was unable to locate any orthopedic examination. (AR 976; 2169.) The ALJ noted 24 that Plaintiff’s physical examinations occasionally revealed lumbar tenderness, mild to 25 moderate pain with range of motion, and pain with straight leg raises, (see e.g., AR 285, 26 971, 985, 1230, 2029, 2062), and that on one occasion, she was noted to have an antalgic
27 3 This statement may be interpreted as direct evidence of malingering. See Widman v. Astrue, 302 F. App'x 744, 747 (9th Cir. 2008). 28 1 gate, (see AR 2029). The ALJ contrasted these findings with other medical evidence where 2 Plaintiff was observed to have intact muscle strength and tone, normal reflexes, normal 3 sensation, a full range of motion, and a normal gait. (See AR 285-86, 342, 348-419, 920, 4 930, 1000, 1248, 1749, 1809, 2008-09, 2063.) The ALJ also noted that Plaintiff reported 5 that she was able to walk three-and-a-half miles per day for exercise and that she had not 6 received any steroid injections or surgical procedures. (See AR 2060; 2169.) 7 These clear and convincing reasons, and others in the ALJ’s decision, (see AR 2173- 8 75), demonstrate that the ALJ consistently discounted Plaintiff’s subjective symptom 9 testimony with substantial evidence. Plaintiff’s contrary argument is denied. 10 II. Provider Opinions Considered and Properly Discounted 11 Plaintiff next asserts that the ALJ “ignored completely” Physician Assistant (PA) 12 Nicola Lawrence’s clinical assessments and improperly dismissed the opinion of LPC 13 Guinn Lahm when making her disability determination. (Docs. 1 at 6; 28 at 2.) Because 14 Plaintiff filed her disability application before March 27, 2017, the prior Social Security 15 medical opinion regulations apply. E.M. v. Kijakazi, 591 F. Supp. 3d 595, 625 (N.D. Cal. 16 2022). To reject the testimony of a medically acceptable treating source, the ALJ must 17 provide specific, legitimate reasons based on substantial evidence in the record. Molina v. 18 Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (superseded on other grounds). However, 19 only licensed physicians and certain other qualified specialists are considered “acceptable 20 medical sources.” Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014) (cleaned up). 21 Physician assistants, nurse practitioners, and therapists are considered “other sources.” Id. 22 (citing 20 C.F.R. § 404.1513(d)); Molina, 674 F.3d at 1111. While the opinions of “other 23 sources” must still be considered, the ALJ may discount the opinions by giving “reasons 24 germane to each witness for doing so.” Revels v. Berryhill, 874 F.3d 648, 655 (9th Cir. 25 2017) (citation omitted). Those reasons include “the length of the treatment relationship 26 and the frequency of examination, the nature and extent of the treatment relationship, 27 supportability, consistency with the record, and specialization of the doctor.” Id. An ALJ 28 may also discount the statement of an “other source” because the opinion addresses the 1 ultimate issue of disability, which is an issue reserved to the Commissioner. See 20 C.F.R. 2 § 404.1527(d)(1). 3 Plaintiff’s assertion that Dr. Lawrence’s clinical assessments were ignored is 4 misleading and inaccurate. Plaintiff mistakes her own symptom testimony for a treating 5 provider’s clinical assessment in a February 8, 2018 progress note summarizing Plaintiff’s 6 medication management session with Dr. Lawrence. (See AR 784.) The ALJ was not 7 required to perform a line-by-line analysis of Plaintiff’s own testimony simply because it 8 appears in one of her medical records. Garcia v. Comm'r of Soc. Sec., 732 F. Supp. 3d 9 1199, 1217 (E.D. Cal. 2024) (ruling that an ALJ is not required to perform a line-by-line 10 analysis of the claimant’s testimony, as long as the ALJ’s rationale is clear enough to be 11 understood and is supported by substantial evidence); see also Wischmann v. Kijakazi, 68 12 F.4th 498, 505 (9th Cir. 2023) (cleaned up) (“[A]n ALJ need not discuss all evidence 13 presented to her[;] [r]ather, an ALJ must explain why significant probative evidence has 14 been rejected.”) While Plaintiff’s testimony appears in a progress note under the incorrect 15 heading “Prescriber’s Evaluation,” (AR 784), the ALJ considered similar testimony in her 16 RFC determination and in her overall disability finding. (See AR 2168-73.) Additionally, 17 review of Plaintiff’s medical record reflects that provider progress notes from Desert Senita 18 Community Health Center are contained in six (6) exhibits that cover 453 pages. (AR 428- 19 881.) The ALJ considered and referenced these exhibits nineteen times in her disability 20 determination. (See AR 2166-75.) As such, the ALJ did not ignore clinical assessments 21 from Plaintiff’s treating providers, and Plaintiff’s argument to the contrary is denied. 22 The ALJ also properly discounted statements from Plaintiff’s therapist, LPC Guinn 23 Lahm, for germane reasons. Counselor Guinn Lahm drafted a disability letter concluding 24 that Plaintiff was unable to work due to her PTSD, insomnia, and chronic fatigue diagnoses. 25 (AR 317.) The ALJ gave little weight to the letter because (i) it was unclear whether Guinn 26 Lahm personally evaluated Plaintiff that day; (ii) her statement was made a year after 27 Plaintiff’s alleged disability onset date; (iii) her conclusion that Plaintiff was unable to 28 work was an opinion on the ultimate issue reserved to the Commissioner; (iv) Plaintiff’s 1 treatment notes routinely reflected normal behavior and moods, normal memory, average 2 to above average intelligence, normal judgment and insight, normal thought processes and 3 thought content, and normal concentration; and (v) Guinn Lahm’s own treatment notes 4 showed that Plaintiff had improved functioning and reduced symptoms with medication 5 management and counseling. (See AR 2175 (citing over twenty (20) separate supporting 6 medical records).) Accordingly, Plaintiff’s argument that the ALJ erred by improperly 7 discounting LPC Guinn Lahm’s medical opinion is denied. 8 III. Combined Effect of Severe Impairments Considered 9 Plaintiff next argues that the ALJ failed to consider the entirety of her severe medical 10 impairments in arriving at her disability determination. (See Doc. 28 at 2 (“Throughout 11 the records and evidence … there [are] several examples of my disabilities and how severe 12 they are and that the entirety of them has not been collectively considered[.]”).) At step 13 two of the disability inquiry, the ALJ determines whether the claimant has a medically 14 severe impairment or combination of impairments. Smolen, 80 F.3d at 1289-90. Important 15 to the step two inquiry is the requirement that the ALJ consider the combined effect of all 16 of the claimant's impairments on her ability to function, without regard to whether each 17 alone was sufficiently severe. Id. at 1290. An impairment is severe if it “significantly 18 limits [an individual’s] physical or mental ability to do basic work activities.” Taylor v. 19 Astrue, 661 F. Supp. 2d 1184, 1191 (E.D. Wash. 2009) (citing 20 C.F.R. §§ 404.1520(c) 20 and 4160920(c)). Basic work activities include “physical functions such as walking, 21 standing, sitting, lifting, pushing, pulling, reaching, carrying or handling, as well as the 22 capacity for seeing, hearing and speaking, understanding, carrying out, and remembering 23 simple instructions, use of judgment, responding appropriately to supervision, co-workers 24 and usual work situations, and dealing with changes in a routine work setting.” Jimenez v. 25 Astrue, 641 F. Supp. 2d 954, 960 (C.D. Cal. 2009). 26 The ALJ determined that Plaintiff had the severe impairments of degenerative disc 27 disease, insomnia, gastrointestinal disorder, obesity, bipolar disorder, personality disorder, 28 anxiety, and PTSD. (AR 2164.) The ALJ evaluated Plaintiff’s severe impairments 1 individually and in combination with her mental impairments and concluded that they did 2 not meet or medically equal one of the listed disabilities in the Social Security guidelines. 3 (AR 2165-67.) Moreover, it is Plaintiff who carries the burden of establishing that she has 4 an impairment that meets or equals the criteria of an impairment listed in Appendix 1 of 5 the Commissioner’s regulations. See Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005) 6 (“An ALJ is not required to discuss the combined effects of a claimant's impairments or 7 compare them to any listing in an equivalency determination, unless the claimant presents 8 evidence in an effort to establish equivalence.”). Here, there was no uncontradicted, 9 credible medical evidence before the ALJ that Plaintiff suffered from a combination of 10 severe impairments that rendered her disabled under the SSA. Even on appeal, Plaintiff 11 fails to highlight consistent, objective medical evidence that demonstrates that she suffers 12 from a combination of severe impairments that render her unable to work. (See Doc. 28 at 13 1-3.) As such, the ALJ did not commit reversible error by failing to consider the combined 14 effect of Plaintiff’s severe impairments, and Plaintiff’s assertion to the contrary is denied. 15 IV. RFC Determination Supported by Substantial Evidence 16 Plaintiff’s final assertion is that the ALJ’s RFC determination is not supported by 17 the evidence in her medical record. (See Doc. 28 at 3 (“[T]hey said I could fold sheets at 18 a hotel, I cannot[.] I cannot hold my arms above my heart without having difficulty 19 breathing, the asthma that is mentioned multiple [times] throughout my medical records 20 prevents this.”).) Plaintiff fails to support her assertion that she cannot raise her arms above 21 her heart without difficulty breathing with any medical evidence or other evidence in the 22 record. (See id.) She also failed to raise this issue in front of the ALJ even though she was 23 represented by counsel. (See AR 2216); Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 24 1999), as amended (June 22, 1999) (reiterating that appellants must raise issues at their 25 administrative hearings to preserve them on appeal). In making her medium work RFC 26 determination, the ALJ partially relied on a reviewing provider’s evaluation that found that 27 Plaintiff could lift and carry up to fifty pounds, could sit, stand, and walk for up to six hours 28 in a normal eight-hour workday, and that she had a number of postural and environmental 1 || limitations to consider, including avoiding concentrated exposure to hazards. (See AR 84- 2|| 86; 2174.) The ALJ also noted that myriad treatment notes often belied Plaintiff's claims of significant impairments. (AR 2175.) The Court fails to find any reversible error in the ALJ’s RFC determination and denies Plaintiff's argument on the matter. 5 RECOMMENDATION 6 The Magistrate Judge recommends that the District Court, upon its independent 7\| review, deny Plaintiff's complaint, (Doc. 1), and affirm the Commissioner’s final decision. 8 || Under the Federal Rules of Civil Procedure, any party may serve and file written objections 9|| within fourteen (14) days of being served with a copy of this Report and Recommendation. Fed. R. Civ. P. 72(b)(2). Due to the significant delay in prosecuting this case, and under 11 || the Court’s discretion, the responding party shall have seven (7) days after being served || with a copy of the opposing party’s written objections to file a response. No replies shall 13 || be filed unless leave is granted by the District Court. If objections are filed, the parties shall use the following case number: 23-cv-422-RCC. Failure to file timely objections to 15 || any factual or legal determination of the Magistrate Judge may result in waiver of the right of review. 17 18 Dated this 10th day of February, 2025. 19 20 21 Honorable Bruce G. Macdonald 9 United States Magistrate Judge 23 24 25 26 27 28
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