1 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8
Joshua Maron, ) No. CV-18-00194-PHX-SPL ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) Commissioner of Social Security ) 12 Administration, ) 13 ) ) 14 Defendant. )
15 Plaintiff Joshua Maron seeks judicial review of the denial of his application for 16 disability insurance benefits under the Social Security Act, 42 U.S.C. § 405(g). 17 Plaintiff argues that the Administrative Law Judge (“ALJ”) erred by: (1) finding 18 certain impairments were not severe; (2) failing to consider Plaintiff’s obesity in 19 determining his residual functional capacity (“RFC”); and (3) rejecting Plaintiff’s 20 subjective complaints (Doc. 15 at 6-7). 21 A person is considered “disabled” for the purpose of receiving social security 22 benefits if he or she is unable to “engage in any substantial gainful activity by reason of 23 any medically determinable physical or mental impairment which can be expected to result 24 in death or which has lasted or can be expected to last for a continuous period of not less 25 than 12 months.” 42 U.S.C. § 423(d)(1)(A). The Social Security Administration’s decision 26 to deny benefits should be upheld unless it is based on legal error or is not supported by 27 substantial evidence. Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). 28 “Substantial evidence is more than a mere scintilla but less than a preponderance.” Bayliss 1 v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citation omitted). “It means such 2 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 3 Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation omitted). The Court must review 4 the record as a whole and consider both the evidence that supports and the evidence that 5 detracts from the ALJ’s determination. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 6 I. DISCUSSION 7 A. IMPAIRMENT SEVERITY 8 1. PHYSICAL IMPAIRMENTS 9 Plaintiff first argues that the ALJ erred in finding his tinnitus, arthopathies, hernia, 10 gastroesophageal reflux disease, hypertension, fatigue, and non-insulin dependent diabetes 11 mellitus were not severe (Doc. 15 at 7). At step two of the sequential evaluation process, 12 the ALJ considers the medical severity of the claimant’s impairments. 20 C.F.R. § 13 404.1520(a)(ii). This step is essentially “a de minimis screening device [used] to dispose 14 of groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citation 15 omitted). “An impairment or combination of impairments can be found ‘not severe’ only 16 if the evidence establishes a slight abnormality that has ‘no more than a minimal effect on 17 an individual’s ability to work.’” Id. 18 In arguing that the ALJ erred in finding his tinnitus, arthopathies, hernia, 19 gastroesophageal reflux disease, hypertension, fatigue, and non-insulin dependent diabetes 20 mellitus were not severe, Plaintiff simply counts the number of times those diagnoses were 21 listed in the record (Doc. 15 at 2-3; Doc. 19 at 2-3). Frequency, however, does not equate 22 to severity of symptoms, or provide the ALJ with evidence establishing more than “a slight 23 abnormality that has ‘no more than a minimal effect on an individual’s ability to work.’” 24 Smolen, 80 F.3d at 1290. Accordingly, the Court finds the ALJ did not err in finding those 25 impairments to be not severe. See 20 C.F.R. § 404.1521. 26 2. MENTAL IMPAIRMENTS 27 Plaintiff next argues that the ALJ also erred at step three of the sequential evaluation 28 process in finding Plaintiff did not have an impairment that meets the severity of any listing 1 in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Doc. 15 at 8). See Burch v. Barnhart, 400 2 F.3d 676, 679 (9th Cir. 2005) (stating that if the criteria of a listing are met, “the claimant 3 is automatically presumed disabled”). An impairment is satisfied by a showing of an 4 extreme limitation in one area of mental functioning, or a marked limitation in two areas 5 of mental functioning. Plaintiff specifically argues the ALJ erred in finding he did not have 6 marked difficulties in maintaining social functioning and maintaining concentration (Doc. 7 15 at 8). A “marked” limitation falls between moderate and extreme on a five-point scale 8 (no limitation, mild limitation, moderate limitation, marked limitation, or extreme 9 limitation). 10 Although there is documentation of anxiety and anger issues, the record contains 11 evidence that Plaintiff’s social functioning was not a marked limitation. For example, in a 12 September 2014 behavioral health and medical history questionnaire, Plaintiff stated “[he] 13 can sometimes be outgoing and sometimes shy.” (AR 686). In addition, he stated that “in 14 a social sense [he is] shy at first until [he] get[s] to know the person but performing in front 15 of people [he is] fine. [He] love[s] being around people, but [he doesn’t] like crowds of 16 people.” (AR 686). There is also evidence that Plaintiff acted and participated in a church 17 play (AR 171, 769), attended and was involved with his church (AR 145, 665, 770), and 18 occasionally participated in a singles group (AR 143, 170, 665). Accordingly, there is 19 evidence in the record to support the ALJ’s finding that Plaintiff’s limitation in social 20 functioning was a moderate limitation. 21 With respect to concentration, persistence, or pace, the ALJ found that despite 22 Plaintiff’s complaints of stress, anxiety, and post-traumatic stress disorder, the record 23 contained sufficient evidence to show he could perform simple tasks requiring sustained 24 concentration (AR 56). The ALJ noted that Plaintiff’s ability to concentrate was 25 demonstrated by his enjoyment in watching television and reading, (AR 715, 802), and 26 although a psychological evaluation further noted he could be tangential at times, Plaintiff 27 was able to follow simple instructions (AR 667; see also AR 154; AR 175 (a disability 28 determination explanation finding Plaintiff’s difficulties in maintaining concentration, 1 persistence or pace to be “moderate”). The Court thus finds the ALJ did not err in finding 2 Plaintiff’s concentration, persistence, or pace to be a moderate limitation. 3 B. CONSIDERATION OF OBESITY 4 Plaintiff argues that the ALJ erred in not considering the impact of obesity in his 5 RFC (Doc. 15 at 8). An RFC assessment “must consider an individual’s maximum 6 remaining ability to do sustained work activities in an ordinary work setting on a regular 7 and continuing basis.” Burch, 400 F.3d at 683 (quoting Titles II & XVI: Evaluation of 8 Obesity, Social Security Ruling (“SSR”) 02-1P, 2002 WL 34686281, at *6 (Sept. 12, 9 2002)). “Obesity can cause limitation of function” and “[t]he effects of obesity may not 10 be obvious.” Id. “An individual may have limitations in any of the exertional functions 11 such as sitting, standing, walking, lifting, carrying, pushing, and pulling.
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1 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8
Joshua Maron, ) No. CV-18-00194-PHX-SPL ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) Commissioner of Social Security ) 12 Administration, ) 13 ) ) 14 Defendant. )
15 Plaintiff Joshua Maron seeks judicial review of the denial of his application for 16 disability insurance benefits under the Social Security Act, 42 U.S.C. § 405(g). 17 Plaintiff argues that the Administrative Law Judge (“ALJ”) erred by: (1) finding 18 certain impairments were not severe; (2) failing to consider Plaintiff’s obesity in 19 determining his residual functional capacity (“RFC”); and (3) rejecting Plaintiff’s 20 subjective complaints (Doc. 15 at 6-7). 21 A person is considered “disabled” for the purpose of receiving social security 22 benefits if he or she is unable to “engage in any substantial gainful activity by reason of 23 any medically determinable physical or mental impairment which can be expected to result 24 in death or which has lasted or can be expected to last for a continuous period of not less 25 than 12 months.” 42 U.S.C. § 423(d)(1)(A). The Social Security Administration’s decision 26 to deny benefits should be upheld unless it is based on legal error or is not supported by 27 substantial evidence. Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). 28 “Substantial evidence is more than a mere scintilla but less than a preponderance.” Bayliss 1 v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citation omitted). “It means such 2 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 3 Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation omitted). The Court must review 4 the record as a whole and consider both the evidence that supports and the evidence that 5 detracts from the ALJ’s determination. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 6 I. DISCUSSION 7 A. IMPAIRMENT SEVERITY 8 1. PHYSICAL IMPAIRMENTS 9 Plaintiff first argues that the ALJ erred in finding his tinnitus, arthopathies, hernia, 10 gastroesophageal reflux disease, hypertension, fatigue, and non-insulin dependent diabetes 11 mellitus were not severe (Doc. 15 at 7). At step two of the sequential evaluation process, 12 the ALJ considers the medical severity of the claimant’s impairments. 20 C.F.R. § 13 404.1520(a)(ii). This step is essentially “a de minimis screening device [used] to dispose 14 of groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citation 15 omitted). “An impairment or combination of impairments can be found ‘not severe’ only 16 if the evidence establishes a slight abnormality that has ‘no more than a minimal effect on 17 an individual’s ability to work.’” Id. 18 In arguing that the ALJ erred in finding his tinnitus, arthopathies, hernia, 19 gastroesophageal reflux disease, hypertension, fatigue, and non-insulin dependent diabetes 20 mellitus were not severe, Plaintiff simply counts the number of times those diagnoses were 21 listed in the record (Doc. 15 at 2-3; Doc. 19 at 2-3). Frequency, however, does not equate 22 to severity of symptoms, or provide the ALJ with evidence establishing more than “a slight 23 abnormality that has ‘no more than a minimal effect on an individual’s ability to work.’” 24 Smolen, 80 F.3d at 1290. Accordingly, the Court finds the ALJ did not err in finding those 25 impairments to be not severe. See 20 C.F.R. § 404.1521. 26 2. MENTAL IMPAIRMENTS 27 Plaintiff next argues that the ALJ also erred at step three of the sequential evaluation 28 process in finding Plaintiff did not have an impairment that meets the severity of any listing 1 in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Doc. 15 at 8). See Burch v. Barnhart, 400 2 F.3d 676, 679 (9th Cir. 2005) (stating that if the criteria of a listing are met, “the claimant 3 is automatically presumed disabled”). An impairment is satisfied by a showing of an 4 extreme limitation in one area of mental functioning, or a marked limitation in two areas 5 of mental functioning. Plaintiff specifically argues the ALJ erred in finding he did not have 6 marked difficulties in maintaining social functioning and maintaining concentration (Doc. 7 15 at 8). A “marked” limitation falls between moderate and extreme on a five-point scale 8 (no limitation, mild limitation, moderate limitation, marked limitation, or extreme 9 limitation). 10 Although there is documentation of anxiety and anger issues, the record contains 11 evidence that Plaintiff’s social functioning was not a marked limitation. For example, in a 12 September 2014 behavioral health and medical history questionnaire, Plaintiff stated “[he] 13 can sometimes be outgoing and sometimes shy.” (AR 686). In addition, he stated that “in 14 a social sense [he is] shy at first until [he] get[s] to know the person but performing in front 15 of people [he is] fine. [He] love[s] being around people, but [he doesn’t] like crowds of 16 people.” (AR 686). There is also evidence that Plaintiff acted and participated in a church 17 play (AR 171, 769), attended and was involved with his church (AR 145, 665, 770), and 18 occasionally participated in a singles group (AR 143, 170, 665). Accordingly, there is 19 evidence in the record to support the ALJ’s finding that Plaintiff’s limitation in social 20 functioning was a moderate limitation. 21 With respect to concentration, persistence, or pace, the ALJ found that despite 22 Plaintiff’s complaints of stress, anxiety, and post-traumatic stress disorder, the record 23 contained sufficient evidence to show he could perform simple tasks requiring sustained 24 concentration (AR 56). The ALJ noted that Plaintiff’s ability to concentrate was 25 demonstrated by his enjoyment in watching television and reading, (AR 715, 802), and 26 although a psychological evaluation further noted he could be tangential at times, Plaintiff 27 was able to follow simple instructions (AR 667; see also AR 154; AR 175 (a disability 28 determination explanation finding Plaintiff’s difficulties in maintaining concentration, 1 persistence or pace to be “moderate”). The Court thus finds the ALJ did not err in finding 2 Plaintiff’s concentration, persistence, or pace to be a moderate limitation. 3 B. CONSIDERATION OF OBESITY 4 Plaintiff argues that the ALJ erred in not considering the impact of obesity in his 5 RFC (Doc. 15 at 8). An RFC assessment “must consider an individual’s maximum 6 remaining ability to do sustained work activities in an ordinary work setting on a regular 7 and continuing basis.” Burch, 400 F.3d at 683 (quoting Titles II & XVI: Evaluation of 8 Obesity, Social Security Ruling (“SSR”) 02-1P, 2002 WL 34686281, at *6 (Sept. 12, 9 2002)). “Obesity can cause limitation of function” and “[t]he effects of obesity may not 10 be obvious.” Id. “An individual may have limitations in any of the exertional functions 11 such as sitting, standing, walking, lifting, carrying, pushing, and pulling. It may also affect 12 ability to do postural functions, such as climbing, balance, stooping, and crouching.” Id. 13 Here, the Court finds that the ALJ properly considered Plaintiff’s obesity in his RFC 14 determination. First, the ALJ noted that “[t]he record reflects persistent obesity” and found 15 the impairment was “severe” at step-two of the sequential evaluation process (AR 54). In 16 addition, in assessing Plaintiff’s RFC, the ALJ relied on the opinions of State Agency 17 physicians (AR 59) Sharon Keith (AR 126-128) and Charles Fina (AR 148-151), both of 18 whom explicitly noted Plaintiff’s obesity in their evaluations (AR 128, 150). See Pepper 19 v. Colvin, 712 F.3d 351, 364 (7th Cir. 2013) (noting that the failure to discuss functional 20 limitations resulting specifically from obesity “may be harmless when the RFC is based on 21 limitations identified by doctors who specifically noted obesity as a contributing factor to 22 the exacerbation of other impairments.”); Arnett v. Astrue, 676 F.3d 586, 593 (7th Cir. 23 2012) (noting “error could conceivably be harmless if the ALJ indirectly took obesity into 24 account by adopting limitations suggested by physicians who were aware of or discussed 25 [the claimant’s] obesity.”). Accordingly, the Court finds the ALJ properly incorporated 26 Plaintiff’s obesity into his RFC. 27 C. PLAINTIFF CREDIBILITY 28 Finally, Plaintiff argues the ALJ erred in rejecting Plaintiff’s subjective complaints. 1 In evaluating a claimant’s testimony, the ALJ is required to engage in a two-step analysis. 2 Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, the ALJ must decide whether 3 the claimant has presented objective medical evidence of an impairment reasonably 4 expected to produce some degree of the symptoms alleged. Id. If the first test is met and 5 there is no evidence of malingering, the ALJ can reject the testimony regarding the severity 6 of the symptoms only by providing specific, clear, and convincing reasons for the rejection. 7 Id. “In determining credibility, an ALJ may engage in ordinary techniques of credibility 8 evaluation, such as considering claimant’s reputation for truthfulness and inconsistencies 9 in claimant’s testimony.” Burch, 400 F.3d at 680. Here, the ALJ found Plaintiff’s medical 10 impairments could reasonably be expected to cause some of the alleged symptoms, but 11 concluded that his statements as to the intensity or limiting effects of those symptoms were 12 not entirely consistent with the record (AR 58). 13 Plaintiff alleges the ALJ erred in discrediting Plaintiff’s pain and symptom 14 testimony because it was inconsistent with Plaintiff’s daily activities and hearing 15 observations (Doc. 15 at 8-9). “Engaging in daily activities that are incompatible with the 16 severity of symptoms alleged can support an adverse credibility determination.” Ghanim v. 17 Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014). Plaintiff alleged that as the result of pain, he 18 had difficulty completing simple tasks (AR 347, 356, 364, 371), fatigued easily within 15- 19 20 minutes (AR 356-357, 364, 370), suffered from excessive pain within 10-15 minutes of 20 any activity (AR 374), suffered from loneliness (AR 404), and had difficulty walking, 21 standing, and sitting (AR 359). Despite these allegations, the ALJ found Plaintiff was 22 encouraged to increase his physical activity to improve chronic pain (AR 857), acted and 23 participated in a church play (AR 171, 769), attended church weekly (AR 665, 770), prepared 24 light meals (AR 166), did light chores (AR 664), did light yard work (AR 166), exercised 25 (AR 142, 168, 486, 510, 862), and occasionally participated in a singles group (AR 143, 170, 26 665). In addition, the ALJ also noted that during a June 2014 psychological consultative 27 examination, Plaintiff reported he was suffering a “10/10 pain level” (AR 663). The ALJ 28 stated that “[f]rom a common sense standpoint,” a person suffering at that level “should be 1 immediately seeking medical assistance,” but that Plaintiff proceeded with the interview 2 in light of his claim (AR 59). The Court finds that the record thus provided the ALJ with 3 sufficient evidence to conclude that Plaintiff’s activities and conduct were incompatible 4 with the severity of the symptoms alleged. To hold otherwise would require this Court to 5 reweight the evidence and arrive at a different conclusion. See Sandgathe v. Charter, 108 6 F.3d 978, 980 (9th Cir. 1997) (finding the Court must uphold the ALJ’s determination even 7 when “the evidence is susceptible to more than one rational interpretation.”). The Court is 8 unable to do so.1 9 To the extent Plaintiff cites to Perminter v. Heckler, 765 F.2d 870 (9th Cir. 1985) 10 to argue the ALJ erred in reflecting on hearing observations and noting that Plaintiff 11 “seemed to retain an adequate ability to hear and communicate at the hearing,” (AR 55) 12 the Court finds Plaintiff’s reliance to be misplaced. In Perminter, the Ninth Circuit found 13 the ALJ improperly relied on personal observations during the hearing to deny benefits, 14 despite evidence to the contrary. Here, on the other hand, the ALJ used those observations 15 as a basis for discounting Plaintiff’s credibility. Because Perminter is distinguishable, the 16 Court finds no error. Accordingly, 17 IT IS ORDERED that the final decision of the Commissioner of Social Security 18 Administration is affirmed. 19 /// 20 /// 21 /// 22 /// 23 /// 24 ///
25 1 Because the Court finds the ALJ provided specific, clear, and convincing reasons 26 for rejecting Plaintiff’s testimony based on daily activities and conduct, the Court does not address the other justifications provided in the decision. See Molina v. Astrue, 674 F.3d 27 1104, 1115 (9th Cir. 2012) (“[A]n ALJ’s error was harmless where the ALJ provided one or more invalid reasons for disbelieving a claimant’s testimony, but also provided valid 28 reasons that were supported by the record.”). 1 IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment 2.| accordingly and terminate this case. 3 Dated this 26th day of September, 2019. 4 5 6
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