Peddle v. Commissioner of Social Security

Opinion

UNITED STATES DISTRICT COURT AT TACOMA TERESA P., CASE NO. C18-6050 BHS Plaintiff, ORDER AFFIRMING DENIAL OF v. BENEFITS COMMISSIONER OF SOCIAL SECURITY, Defendant. I. BASIC DATA Type of Benefits Sought: (X) Disability Insurance ( ) Supplemental Security Income Plaintiff’s: Sex: Female Age: 39 at the time of alleged disability onset. Principal Disabilities Alleged by Plaintiff: Congestive heart failure, left bundle branch block, C5–C6 left disc osteophyte complex, chronic fatigue/possible narcolepsy, intracranial hypertension, systolic dysfunction, sinus tachycardia, anemia, chronic back pain, chronic shortness of breath. See Admin. Record (Dkt. # 7) (“AR”) at 68.

Disability Allegedly Began: March 13, 2015 Principal Previous Work Experience: Patient scheduler, front desk receptionist. AR at 31, 206. Education Level Achieved by Plaintiff: High school diploma. II. PROCEDURAL HISTORY—ADMINISTRATIVE

Before Administrative Law Judge (“ALJ”) Cynthia Rosa: Date of Hearing: September 7, 2017 Date of Decision: February 28, 2018 Appears in Record at: 21–32 Summary of Decision: The claimant has not engaged in substantial gainful activity since March 13, 2015, the alleged onset date. See 20 C.F.R. §§ 404.1571–76. The claimant has the following severe impairments: History of atrial flutter status post ablation in 2012; mild systolic dysfunction and left bundle branch block; narcolepsy; degenerative disc disease of the cervical spine with spondylosis at C5–C6 status post fusion at C5–C6; left shoulder mild osteoarthritis with a small labral tear; and fibromyalgia. See 20 C.F.R. § 404.1520(c).

The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. See 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526. The claimant has the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 404.1567(b), with exceptions. She can occasionally climb ramps and stairs, but never ropes, ladders, or scaffolds. She can occasionally stoop and crouch, but never crawl or kneel. She can occasionally reach overhead bilaterally. She should avoid concentrated exposure to extreme heat, extreme cold, vibration, and hazards. She should be able to change position between sitting and standing in 30-minute intervals.

The claimant is capable of performing past relevant work as a patient scheduler and front desk receptionist. This work does not require the performance of work-related activities precluded by the claimant’s RFC. See 20 C.F.R. § 404.1565. The claimant has not been under a disability, as defined in the Social Security Act, from March 13, 2015, through the date of the ALJ’s decision. See 20 C.F.R. § 404.1520(f).

Before Appeals Council: Date of Decision: November 13, 2018 Appears in Record at: AR at 5–7 Summary of Decision: Denied review. III. PROCEDURAL HISTORY—THIS COURT Jurisdiction based upon: 42 U.S.C. § 405(g) Brief on Merits Submitted by (X) Plaintiff (X) Commissioner Pursuant to 42 U.S.C. § 405(g), the Court may set aside the Commissioner’s denial of Social Security benefits when the ALJ’s findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d

1211, 1214 n.1 (9th Cir. 2005). “Substantial evidence” is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving any other

ambiguities that might exist. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Although the Court is required to examine the record as a whole, it may neither reweigh the evidence nor substitute its judgment for that of the ALJ. See Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). “Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Id.

Plaintiff bears the burden of proving she is disabled within the meaning of the Social Security Act (“Act”). Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The Act defines disability as the “inability to engage in any substantial gainful activity” due to a physical or mental impairment which has lasted, or is expected to last, for a continuous period of not less than twelve months. 42 U.S.C. § 423(d)(1)(A). A claimant is disabled

under the Act only if her impairments are of such severity that she is unable to do her previous work, and cannot, considering her age, education, and work experience, engage in any other substantial gainful activity existing in the national economy. 42 U.S.C. § 423(d)(2)(A); see also Tackett v. Apfel, 180 F.3d 1094, 1098–99 (9th Cir. 1999). The Commissioner has established a five-step sequential evaluation process for

determining whether a claimant is disabled within the meaning of the Act. See 20 C.F.R. § 404.1520. The claimant bears the burden of proof during steps one through four. Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). At step five, the burden shifts to the Commissioner. Id.

A. Whether the ALJ adequately accounted for limitations caused by Plaintiff’s narcolepsy and fibromyalgia. B. Whether the ALJ erred in failing to address statements from treating provider Kimberly Hutchison, M.D. C. Whether the ALJ reasonably determined Plaintiff could perform past work

as actually and generally performed. A. The ALJ Did Not Harmfully Err in Accounting for Limitations Caused by Plaintiff’s Narcolepsy and Fibromyalgia Plaintiff argues the ALJ erred by failing to include in the RFC limitations she alleges her narcolepsy and fibromyalgia caused. Pl. Op. Br. (Dkt. # 11) at 3–7. The ALJ found that Plaintiff had, among other things, severe impairments of narcolepsy and fibromyalgia. AR at 23. Plaintiff argues the ALJ erred by failing to include limitations that narcolepsy has been found to cause. See Pl. Op. Br. at 3–4. Plaintiff quotes from an online source indicating that narcolepsy can cause daytime drowsiness and sudden attacks of sleep, and argues that the ALJ needed to include limitations in the RFC that would address these symptoms. See id. Plaintiff’s argument fails. A finding that an impairment is severe does not automatically mean the impairment inhibits a claimant from engaging in basic work activities. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228–29 (9th Cir. 2009); see Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007). Rather, the ALJ is only obligated to include in the RFC limitations actually established by the evidence. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). Plaintiff does not refute the ALJ’s findings simply because an internet source mentions possible symptoms narcolepsy can cause. Plaintiff points to a statement from provider Caitlin Conrad, PA-C, to argue that additional limitations caused by narcolepsy should have been included in the RFC. Ms.

Conrad reported that Plaintiff “has difficulty with concentration, memory and driving. Her sleepiness affects her quality of life. She is unable to schedule naps while at work.” AR at 497. But the ALJ discounted Ms. Conrad’s statements, finding that they were “not entirely consistent with her treatment notes.” AR at 30. Plaintiff presents no argument as to how the ALJ erred in discounting Ms. Conrad’s statements, so they do not help Plaintiff’s argument. See Indep. Towers of Wash. v. Wash., 350 F.3d 925, 929 (9th Cir.

2003) (“The art of advocacy is not one of mystery. Our adversarial system relies on the advocates to inform the discussion and raise the issues to the court. Particularly on appeal, we have held firm against considering arguments that are not briefed.”). With respect to fibromyalgia, Plaintiff argues the ALJ failed to include in the RFC limitations indicated by Plaintiff’s testimony. See Pl. Op. Br. at 6–7. Plaintiff asserts,

without any argument, that “[t]he ALJ did not state any convincing reason for rejecting any of [Plaintiff’s] testimony.” Pl. Op. Br. at 7 (emphasis omitted). But the ALJ rejected Plaintiff’s testimony as inconsistent with the medical evidence and her activities of daily living. See AR at 29–30. Plaintiff has presented no argument as to how the ALJ erred in reaching these determinations, and has thus failed to show error. See Indep. Towers of

Wash., 350 F.3d at 929. B. The ALJ Did Not Harmfully Err in Addressing Dr. Hutchison’s Opinions Plaintiff argues the ALJ erred in failing to consider a statement from Dr. Hutchison. Pl. Op. Br. at 8–10. Dr. Hutchison treated Plaintiff for sleep disorders. See AR at 361–79. Dr. Hutchison noted after one appointment that she “[c]ounseled [Plaintiff] on limited driving, 2 x 20 minute naps daily.” AR at 378. Plaintiff argues this

constituted an opinion, and the ALJ erred by failing to address it. See Pl. Op. Br. at 8–10. Plaintiff has failed to show the ALJ harmfully erred. See Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012) (citing Shinseki v. Sanders, 556 U.S. 396, 407-09 (2009)) (holding that the party challenging an administrative decision bears the burden of proving harmful error). An ALJ must address a doctor’s opinions, but is not required to discuss a doctor’s treatment recommendations in evaluating the claimant’s RFC. See Rounds v.

Comm’r Soc. Sec. Admin., 807 F.3d 996, 1005–06 (9th Cir. 2015) (holding that the ALJ need not consider a treatment recommendation in the absence of identified functional limitations); Valentine, 574 F.3d at 691–92 (reasoning that the ALJ is not required to credit or reject a doctor’s recommendations for coping with symptoms when those recommendations do not include opinions as to specific functional limitations). That Dr.

Hutchison “counseled” Plaintiff about taking naps does not mean Dr. Hutchison opined that Plaintiff must take two 20-minute naps a day. See AR at 378. Dr. Hutchison provided no specific functional opinion, and the ALJ therefore did not err in failing to address her treatment note. C. The ALJ Did Not Harmfully Err in Finding Plaintiff Could Perform Past Work Plaintiff argues the ALJ erred in finding Plaintiff could perform her past work as a patient scheduler and front-desk receptionist. Pl. Op. Br. at 10–16. At step four of the disability evaluation, the ALJ must determine whether the claimant perform any of her past work considering her RFC. 20 C.F.R. § 404.1520(a)(iv). To determine whether a claimant can perform her past work, an ALJ considers whether the claimant can perform

the functional demands and job duties of his past work “as [s]he . . . actually performed it,” or “as generally required by employers throughout the economy.” Social Security Ruling (“SSR”) 82–61, 1982 WL 31387, at *1–2 (Jan. 1, 1982). ALJs ordinarily look to the Dictionary of Occupational Titles (“DOT”) to determine the maximum requirements of occupations as generally performed. See SSR 00–4p, 2000 WL 1898704, at *3 (Dec. 4, 2000). “Information about a particular job’s requirements or about occupations not

listed in the DOT may be available in other reliable publications, information obtained directly from employers, or from a [vocational expert’s] experience in job placement or career counseling.” Id. at *2. If testimony from the vocational expert (“VE”) conflicts with information in the DOT, the ALJ must “elicit a reasonable explanation” from the VE before relying on his or her testimony. See SSR 00–4p, 2000 WL 1898704, at *2.

The ALJ found, among other things, that Plaintiff could perform her past work as a patient scheduler as generally performed. See AR at 31–32. Plaintiff contends the ALJ erred in making this finding because the DOT does not address whether patient scheduler jobs provide the ability to alternate sitting and standing. Pl. Op. Br. at 12–14. As such, according to Plaintiff, the VE’s testimony that Plaintiff could perform this job as

generally performed conflicted with the DOT, and the ALJ erred in failing to address that conflict. Id. The ALJ did not harmfully err at step four. The ALJ’s duty to elicit a reasonable explanation for conflicts with the DOT is only triggered when there is an “obvious or apparent” conflict. See Gutierrez v. Colvin, 844 F.3d 804, 808 (9th Cir. 2016). No such conflict exists here because the DOT is silent on whether patient scheduler jobs have a

sit/stand option. See Dewey v. Colvin, 650 F. App’x 512, 514 (9th Cir. 2016) (holding that the ALJ did not need to address a conflict with the DOT and VE testimony where the DOT was “silent on whether the jobs in question allow for a sit/stand option”).1 The VE’s testimony filled in a gap, and the ALJ therefore did not err in finding that Plaintiff could perform her past work as a patient scheduler as generally performed. The Court need not address Plaintiff’s remaining step four arguments because any

error was harmless. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (quoting Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008)) (holding that an error is harmless “where it is ‘inconsequential to the ultimate disability determination’”). The ALJ’s finding that Plaintiff could perform her past work as a patient scheduler as generally performed remains valid regardless of whether the ALJ

erred in finding that Plaintiff could perform her past work as a patient scheduler as actually performed, or could perform her past work as a front desk receptionist as actually or generally performed. The ALJ therefore did not harmfully err.

1 The jobs in question in Dewey were defined as sedentary but the DOT, like the patient scheduler job. See Dewey, 650 F. App’x at 514 (citing DOT 521.687-086, 1991 WL 674226 (sorter); and DOT 713.687-018, 1991 WL 679271 (final assembler). Therefore, it is hereby ORDERED that the Commissioner’s final decision denying

Plaintiff disability benefits is AFFIRMED and this case is DISMISSED with prejudice. Dated this 7th day of May, 2020. A BENJAMIN H. SETTLE United States District Judge