Mary Rodgers-Vey v. Nancy A. Berryhill

• Court: District Court, C.D. California
• Decided: January 28, 2021
• Docket: 2:19-cv-02785-MWF-JPR
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 MARY R.-V., ) Case No. CV 19-2785-MWF (JPR) 11 ) Plaintiff, ) 12 ) ORDER ACCEPTING FINDINGS AND v. ) RECOMMENDATIONS OF U.S. 13 ) MAGISTRATE JUDGE ANDREW SAUL, Commissioner ) 14 of Social Security, ) ) 15 Defendant. ) ) 16 ) 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the 18 Complaint, Joint Stipulation, Administrative Record, and all 19 other records on file as well as the Report and Recommendation of 20 U.S. Magistrate Judge. On December 14, 2020, Plaintiff filed 21 Objections to the R. & R., in which she mostly simply repeats 22 arguments from the Joint Stipulation.1 23 For instance, Plaintiff reiterates that the ALJ erred in 24 failing to exhibit and consider a medical-source statement from 25 treating doctor Russell W. Nelson opining that Plaintiff was 26 27 1 Defendant filed a response to the Objections on December 28 28, 2020. 1 prohibited from repetitive twisting, turning, or bending, among 2 other things. (See Objs. at 2-4.) As the Magistrate Judge 3 found, however, Plaintiff affirmatively waived this argument when 4 her counsel confirmed on two occasions at the hearing before the 5 ALJ that the record was “complete,” particularly given that the 6 ALJ had already held the record open for her to submit additional 7 documents. (R. & R. at 50.) Plaintiff argues that the Court 8 should disregard this express waiver because the Social Security 9 regulations “obligate plaintiffs on an ongoing basis to inform or 10 submit all evidence.” (Objs. at 3 (citing 20 C.F.R. § 11 404.1512).) She posits a hypothetical scenario in which a 12 “plaintiff is receiving treatment for an impairment with an 13 unknown diagnosis” at the time of the hearing and complains that 14 the Magistrate Judge’s holding “would bar submission” of evidence 15 resolving the uncertainty. (Id.) But of course those facts are 16 not present here: Dr. Nelson had been providing treatment to 17 Plaintiff for years, and nothing about his late-submitted opinion 18 indicates any changed circumstances or reasons why it could not 19 have been rendered earlier. In the face of Plaintiff’s counsel’s 20 two acknowledgments that the record was complete, she has 21 affirmatively waived this issue. 22 In any event, as the Magistrate Judge noted (R. & R. at 51- 23 52), it is apparent from the DOT descriptions of the accounting- 24 clerk and payroll-clerk jobs the ALJ found Plaintiff could 25 perform as well as from the VE’s testimony concerning them that 26 the jobs do not require repetitive twisting, turning, or bending. 27 (See AR 1130); “Accounting Clerk,” DOT 216.482-010, 1991 WL 28 671933 (Jan. 1, 2016); “Payroll Clerk,” DOT 215.382-014, 1991 WL 1 671908 (Jan. 1, 2016). Thus, any error by the ALJ in failing to 2 consider Dr. Nelson’s opinion was harmless, as the Magistrate 3 Judge recognized. (R. & R. at 52.) And Plaintiff has not 4 contested that finding. 5 Plaintiff also argues that this Court should remand for the 6 ALJ to resolve the ambiguity in the record presented by an 7 opinion from an unidentified source that Plaintiff would be 8 absent from work two times a week. (See Objs. at 4; R. & R. at 9 46.) But as the Magistrate Judge noted, the unidentified opinion 10 was from before the alleged onset date and before Plaintiff’s 11 back surgery. (R. & R. at 46.) Further, the opinion concerned 12 Plaintiff’s ability to do her prior job as actually performed (AR 13 334-37; see AR 334-35), which is not at issue here because the 14 ALJ found she could do it only as generally performed (AR 19); 15 see Arnold v. Astrue, No. EDCV 10-1609 JC., 2011 WL 2261058, at 16 *8 n.5 (C.D. Cal. June 8, 2011) (any error in ALJ’s rejection of 17 doctor’s opinion that plaintiff could not return to prior work 18 was harmless because ALJ concluded plaintiff was unable to 19 perform any past relevant work). Plaintiff has made no attempt 20 to articulate the relevance of this opinion. (See Objs. at 4.) 21 Thus, remand is not necessary on this issue. 22 Plaintiff also objects that the ALJ erred in assessing the 23 opinions of Drs. Emad and Schwartz. (Id.) She fails, however, 24 to explain how the Magistrate Judge’s analysis on these issues 25 (see R. & R. at 45-49) was erroneous. (See Objs. at 4.) These 26 issues do not require remand. 27 Next, Plaintiff reiterates her claim that the ALJ erred in 28 discounting her subjective symptom statements. (See id. at 4-6.) 1 To start, she argues that the 2015 pain questionnaire and 2 function report the ALJ cited in finding her statements 3 inconsistent with her daily activities was completed nearly three 4 years before her 2018 hearing testimony. (See id. at 4.) She 5 correctly points out that “there could have been a difference in 6 her report of her limitations” because “conditions progress and 7 may worsen over time.” (Id.) But the Magistrate Judge properly 8 recognized that the inconsistencies regarding Plaintiff’s daily 9 activities undermined her testimony. (See R. & R. at 28-30.) 10 For example, Plaintiff’s claim in her 2015 pain questionnaire 11 that her driving was limited because of the side effects of her 12 medication conflicted with her denial to Dr. Niamehr of any 13 medication side effects. (Id. at 30.) Although Plaintiff now 14 argues that the ALJ ignored reports that her daily activities, 15 such as driving, were conducted with “assistance, great pain, and 16 other limitation-related disruptions” (Objs. at 5), the 17 inconsistency between her hearing testimony that her medications 18 caused “dizzy spells,” nausea, anxiety, shakiness, “disturb[ance] 19 of [her] thinking skill,” and nervousness “about cars driving 20 next to [her]” (AR 1113-14) and the statement to Dr. Niamehr 21 cannot be explained by the frequency or difficulty of her 22 activities. The Magistrate Judge also correctly noted that 23 Plaintiff’s dispute of the ALJ’s characterization of her 24 statements does not undermine the ALJ’s observation that her 25 testimony that she spent “almost all of [her] time in bed” was 26 exaggerated in light of other statements in the record, including 27 her hearing testimony that she regularly went out to eat after 28 church. (R. & R. at 30.) 1 Plaintiff challenges the Magistrate Judge’s finding that no 2 treating source assessed functional limitations consistent with 3 Plaintiff’s allegations. (See Objs. at 5.) Although she 4 correctly notes that she was found to have “trigger points” for 5 fibromyalgia during some examinations (id.), she fails to rebut 6 the Magistrate Judge’s observation that no functional limitations 7 were assigned based on those findings or any others. (R. & R. at 8 31.) Indeed, Plaintiff’s argument that those findings support 9 her position that her fibromyalgia was severe is belied by the 10 December 15, 2014 examination finding of 10 trigger points, one 11 shy of the 11 needed for a fibromyalgia diagnosis, and another 12 doctor’s statement that her fibromyalgia was “inactive.” (Id.) 13 Plaintiff reiterates her argument from the Joint Stipulation that 14 the trigger-point findings demonstrate that the ALJ erred in 15 failing to consider her fibromyalgia within the context of SSR 16 12-2p. (Objs. at 6-7.) But she has not articulated any basis 17 for this argument or rebutted the Magistrate Judge’s reasons for 18 rejecting it. (See id. at 5; R. & R. at 31, 39-40.) 19 Plaintiff acknowledges that Dr. Sisto stated that her 20 significant subjective complaints did not appear to be justified 21 by the objective findings. (See Objs. at 6.) Indeed, he was 22 “stunned” at the level of treatment she had received given the 23 mild findings. (AR 450.) She argues, however, that this was a 24 selective reading of Dr. Sisto’s report and the longitudinal 25 record because Dr. Sisto also acknowledged that she was 26 symptomatic. (Id.) But there is no dispute that Plaintiff had 27 symptoms or that she was diagnosed with fibromyalgia. (R. & R. 28 at 37.) Symptoms and a diagnosis do not equal a severe 1 impairment, however. See Febach v. Colvin, 580 F. App’x 530, 531 2 (9th Cir. 2014) (finding that depression diagnosis alone was 3 insufficient to show severe impairment). The Magistrate Judge 4 correctly relied on Dr. Sisto’s statements in finding that 5 Plaintiff’s subjective symptom statements were inconsistent with 6 the modest physical findings in the record. (R. & R. at 32-33.) 7 Plaintiff contends that the ALJ should have incorporated 8 limitations from hand pain into the RFC. (See Objs. at 6.) She 9 argues that the Magistrate Judge’s finding that no medical source 10 had assessed the severity of her carpal tunnel syndrome as more 11 than mild was inaccurate because Dr. Nelson stated in his 12 supplemental opinion that she had intense pain in her neck and 13 back, with radiating arm and leg symptoms. (Id.) But Dr. 14 Nelson’s supplemental opinion did not say that Plaintiff 15 experienced any wrist or hand pain, did not diagnose her with 16 carpal tunnel syndrome, and did not assign any manipulative 17 limitations. (J. Stip., Ex. A at 8.) The Magistrate Judge did 18 not err. 19 Finally, Plaintiff reasserts her arguments that the ALJ 20 failed to properly account for the additional impairments of 21 fibromyalgia, obesity, and headaches in the RFC. (See Objs. at 22 6-7.) She argues that the ALJ’s statements that there was very 23 little evidence to support a finding of severe fibromyalgia was 24 “an inaccurate reading of [her] medical records.” (See id.) The 25 Magistrate Judge correctly noted, however, that the ALJ did not 26 reject Plaintiff’s fibromyalgia diagnosis; indeed, the ALJ found 27 “persuasive” the opinions of doctors who diagnosed it. (R. & R. 28 at 40.) Further, the Magistrate Judge correctly found that any 1 error in failing to explicitly analyze SSR 12-2p in assessing 2 Plaintiff’s fibromyalgia was harmless. (Id.) As the Magistrate 3 Judge noted, SSR 12-2p provides two sets of criteria to be used 4 for determining whether a claimant has a medically determinable 5 impairment. (Id. at 39); see 77 Fed. Reg. 43640, 43641-43 (July 6 25, 2012). Once the Commissioner finds that a claimant has 7 fibromyalgia, he proceeds to the normal sequential evaluation 8 process to determine whether the claimant is disabled. 77 Fed. 9 Reg. at 43643. Plaintiff has cited no record evidence that would 10 support a more restrictive RFC under the sequential evaluation 11 process. As the Magistrate Judge noted, Dr. Hoos found in 12 December 2014 that Plaintiff was “doing fairly well” on her 13 fibromyalgia medication and that the serological testing was 14 negative. (R. & R. at 39.) The number of trigger points noted 15 at that session fell short of the 11 generally considered 16 indicative of the condition. (Id.) And a doctor observed in 17 November 2013 that Plaintiff’s fibromyalgia was inactive. (Id.) 18 Finally, as the Magistrate Judge noted, no medical source 19 assessed significant limitations from fibromyalgia. (Id.) 20 Plaintiff has failed to demonstrate error. 21 Plaintiff also reiterates her argument that the ALJ failed 22 to properly assess her obesity. (See Objs. at 7.) With respect 23 to SSR 19-2p, the Magistrate Judge correctly found that it did 24 not apply to the ALJ’s May 2, 2018 decision because it became 25 effective on May 19, 2019. (R. & R. at 41); see SSR 19-2p, 2019 26 WL 2374244, at *5. Plaintiff does not challenge that finding, 27 instead contending that the ruling “should be considered in the 28 event the case is remanded.” (Objs. at 7.) As to SSR 02-1p, 1 Plaintiff repeats her assertion that there was “error with 2 respect to the then-existing ruling,” but as the Magistrate Judge 3 noted, she “offers no argument, much less evidence, as to how 4 [her obesity] caused limitations greater than those included in 5 her RFC.” (R. & R. at 42.) The Magistrate Judge also correctly 6 observed that although the ALJ did not explicitly reference SSR 7 02-1p, she discussed Plaintiff’s obesity, weight, and rapid 8 weight gain in her analysis of the medical evidence and the RFC. 9 (R. & R. at 41.) Both state-agency physicians also considered 10 Plaintiff’s obesity and found her even less limited than the ALJ. 11 (Id.) This issue does not require remand. 12 Finally, Plaintiff repeats her claim that the ALJ failed to 13 adequately assess her headaches or comply with SSR 19-4p. (See 14 Objs. at 7.) She argues that the ALJ committed reversible error 15 by finding the headaches to be a severe impairment but failing to 16 discuss their impact on her RFC. (Id.) But as the Magistrate 17 Judge noted, the ALJ discussed Plaintiff’s treatment with Drs. 18 Mescher and Kong for headaches. (R. & R. at 42.) Neither doctor 19 assessed any functional limitations from them. (Id.) Instead, 20 the treatment notes generally indicated that Plaintiff’s 21 headaches were well controlled with medication and chiropractic 22 therapy. (Id. at 42-43.) Plaintiff has failed to address or 23 rebut this evidence. The Magistrate Judge also correctly noted 24 that SSR 19-4p was inapplicable to the ALJ’s May 2, 2018 decision 25 because it was effective August 26, 2019. (R. & R. at 43.) 26 Plaintiff’s unsupported argument in her Objections that “the 27 error remains the same” even though SSR 19-4p was enacted 28 posthearing (Objs. at 7) is unavailing. 1 Having reviewed de novo those portions of the R. & R. to 2\)which Plaintiff objects, the Court accepts the findings and recommendations of the Magistrate Judge. IT THEREFORE IS ORDERED 4] that judgment be entered affirming the Commissioner’s decision 5 and dismissing this action with prejudice

DATED: January 28, 2021 sé Kp Wa Ae) 7 MTCHAEL W FITZGER{TD 3 U.S. DISTRICT JUDG:

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