Poetz v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: January 10, 2025
• Docket: 2:23-cv-02702
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Ronald A Poetz, No. CV-23-02702-PHX-KML

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Plaintiff Ronald A. Poetz seeks review of the Social Security Commissioner’s final 16 decision denying him disability insurance benefits. Because the Administrative Law 17 Judge’s (“ALJ’s”) decision is supported by substantial evidence and is not based on 18 harmful legal error, it is affirmed. 19 I. Background 20 Poetz protectively filed an application for disability insurance benefits on October 21 7, 2020.1 (Administrative Record (“AR”) 15.) The ALJ determined his severe impairments 22 were degenerative disc disease of the cervical spine with radiculopathy, remote history of 23 left shoulder surgery, idiopathic neuropathy, residuals of varicose vein surgeries, history 24 of respiratory failure, history of peripheral vestibular hypofunction/vertigo, and obesity. 25 (AR 18.) Poetz does not allege he had any other severe impairments. (See Docs. 14, 15.) 26 1 Poetz filed an application for disability insurance benefits in 2018 and received an 27 unfavorable decision. (AR 77–94.) Such a decision creates a rebuttable presumption that a claimant is not disabled. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173 (9th Cir. 28 2008) (citing Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988)). The ALJ determined the presumption was rebutted here because Poetz alleged new impairments. (AR 16.) 1 The ALJ denied Poetz’s claim (AR 23) and the appeals council denied his request 2 for review. (AR 1.) Poetz then appealed to this court. 3 II. Legal Standard 4 The court may set aside the Commissioner’s disability determination only if it is not 5 supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 6 630 (9th Cir. 2007). “Substantial evidence is more than a mere scintilla but less than a 7 preponderance” of evidence and is such that “a reasonable mind might accept as adequate 8 to support a conclusion.” Id. (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 9 2005)). The court reviews only those issues raised by the party challenging the decision. 10 See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). 11 III. Discussion 12 A. The ALJ’s Five-Step Disability Evaluation Process 13 Under the Social Security Act, a claimant for disability insurance benefits must 14 establish disability prior to the date last insured. 42 U.S.C. § 423(c); 20 C.F.R. § 404.131. 15 A claimant is disabled under the Act if he cannot engage in substantial gainful activity 16 because of a medically determinable physical or mental impairment that has lasted, or can 17 be expected to last, for a continuous period of twelve months or more. 42 U.S.C. 18 §§ 423(d)(1)(A); 1382c(a)(3)(A). 19 Whether a claimant is disabled is determined by a five-step sequential process. See 20 Woods v. Kijakazi, 32 F.4th 785, 787 n.1 (9th Cir. 2022) (summarizing 20 C.F.R. 21 § 404.1520(a)(4)). The claimant bears the burden of proof on the first four steps, but the 22 burden shifts to the Commissioner at step five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th 23 Cir. 1999). At step three, the claimant must show his impairment or combination of 24 impairments meets or equals the severity of an impairment listed in Appendix 1 to Subpart 25 P of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). At step four, the claimant must 26 show his residual functional capacity (“RFC”)—the most he can do with his impairments— 27 precludes him from performing his past work. Id. at § 404.1520(a)(4)(iv). If the claimant 28 meets his burden at step three, he is presumed disabled and the analysis ends. If the inquiry 1 proceeds and the claimant meets his burden at step four, then at step five the Commissioner 2 must determine if the claimant is able to perform other work that “exists in significant 3 numbers in the national economy” given the claimant’s RFC, age, education, and work 4 experience. Id. at § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. 5 At step three the ALJ determined Poetz did not have an impairment or combination 6 of impairments that medically equaled the severity of a listed impairment, and he had the 7 RFC to perform “light work” with additional limitations given his impairments. (AR 19.) 8 The ALJ used this RFC to conclude at step four that Poetz could perform his past relevant 9 work as a packaging supervisor, which does “not require the performance of work-related 10 activities precluded by” his RFC. (AR 22.) These conclusions were based, in part, on the 11 ALJ discounting some of Poetz’s symptom testimony. (See AR 19–22, 32–43.) 12 Poetz only argues the ALJ failed to articulate clear and convincing reasons to find 13 his testimony about the intensity, persistence, and limiting effects of his symptoms 14 unpersuasive. Poetz argues properly accounting for his symptom testimony “would require 15 an ALJ to find [him] disabled.” (Doc. 12 at 14.) 16 B. Poetz’s Symptom Testimony 17 The ALJ stated Poetz’s “medically determinable impairments could reasonably be 18 expected to cause some of [his] alleged symptoms; however, [his] statements concerning 19 the intensity, persistence and limiting effects of these symptoms were not entirely 20 consistent with the medical evidence and other evidence in the record.” (AR 18–19.) Poetz 21 contends the ALJ improperly relied on his daily activities and objective medical 22 evidence—specifically, repeated normal findings on physical examinations—as reasons to 23 discount his symptom testimony. (Docs. 12 at 8–14, 15 at 4–8.) 24 When a claimant has presented objective medical evidence of an underlying 25 impairment which could reasonably be expected to cause the severity of the symptoms 26 alleged and there is no evidence of malingering, an ALJ may only reject subjective 27 symptom-severity testimony by offering “specific, clear and convincing reasons for doing 28 so.” Revels v. Berryhill, 874 F.3d 648, 655 (9th Cir. 2017) (quoting Garrison v. Colvin, 1 759 F.3d 995, 1014–15 (9th Cir. 2014)). Such findings are sufficiently specific when they 2 permit a reviewing court to conclude the ALJ “did not arbitrarily discredit [a] claimant’s 3 testimony.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (simplified), 4 superseded on other grounds by 20 C.F.R § 404.1502(a). The ALJ did not find that Poetz 5 was malingering. So, the ALJ could only discredit his symptom testimony by providing 6 “specific, clear and convincing” reasons for doing so. Revels, 874 F.3d at 655. 7 Contradictions between a claimant’s symptom testimony and his daily activities 8 provide a valid ground for discounting his symptom testimony. See Molina v. Astrue, 674 9 F.3d 1104, 1113 (9th Cir. 2012) (“Even where [daily] activities suggest some difficulty 10 functioning, they may be grounds for discrediting the claimant’s testimony to the extent 11 that they contradict claims of a totally debilitating impairment”), superseded on other 12 grounds by 20 C.F.R. § 404.1502(a). And here, the ALJ was specific in describing why 13 Poetz’s activities contradicted his testimony; for example, in finding that preparing meals, 14 cleaning the kitchen, and doing laundry all involve moving the neck and using upper 15 extremities for gross and fine manipulation, contradicting Poetz’s claims of disabling pain 16 in the shoulder and cervical spine. (AR 20; see also AR 20 (describing how Poetz’s daily 17 walks contradicted his claim of disabling neuropathy).) But in considering daily activities 18 to discount a claimant’s symptom testimony, the ALJ must conduct a “transferability” and 19 “substantiality” analysis. That analysis requires an ALJ consider whether a claimant can 20 spend a “substantial part” of his day “engaged in pursuits involving the performance of 21 physical functions that are transferable to a work setting.” Id. (citation omitted) (emphases 22 added). The ALJ did not conduct such an analysis here (see AR 19–22) and the 23 Commissioner does not argue otherwise. (See Doc. 14.) It was therefore legal error for him 24 to use Poetz’s daily activities as a reason to discount his symptom testimony.2 25 The ALJ, however, properly used objective medical evidence to discount Poetz’s

26 2 Poetz also argues the ALJ improperly relied on his travel history to discount his symptom testimony. (Docs. 12 at 12–13, 15 at 7–9). But it was Poetz’s burden to describe how he 27 was able to travel in light of allegedly disabling impairments given the lack of other ambiguities in the record. See Lewis v. Comm'r of Soc. Sec., No. 121-CV-01243-ADA- 28 SAB, 2023 WL 2182464, at *8 (E.D. Cal. Feb. 23, 2023), report and recommendation adopted, No. 121-CV-01243-ADA-SAB, 2023 WL 3794402 (E.D. Cal. June 2, 2023). 1 symptom testimony, making any error in failing to make explicit transferability and 2 substantiality findings harmless. See Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) 3 (simplified) (an ALJ’s error is harmless when it is “inconsequential to the ultimate 4 nondisability determination.”). The ALJ cited medical records at length to support his 5 nondisability determination and to discount Poetz’s symptom testimony, far exceeding the 6 “mere scintilla” required by the substantial evidence standard. Orn, 495 F.3d at 630. (See 7 AR 18–22.) Poetz cites purportedly contrary medical records, but the relevance of those 8 records is not obvious and even if they could support a disability determination, that is not 9 the standard here. Rather, if “the evidence [in the record] is susceptible to more than one 10 rational interpretation” the court “will uphold the ALJ’s conclusion.” Tommasetti, 533 F.3d 11 at 1039. 12 Poetz contends the ALJ rejected his symptom testimony by highlighting selective 13 normal findings in his medical records such as medical documentation of normal sensation, 14 strength, shoulder range of motion, and gait. (Doc. 12 at 9.) Poetz argues the ALJ failed to 15 explain why he considered those normal findings but disregarded other evidence in the 16 record that supported or was consistent with Poetz’s symptom testimony. (Doc. 12 at 10.) 17 Again, though, where the record evidence supports multiple rational interpretations—as it 18 does here—the court must uphold the ALJ’s conclusion. Id. Poetz relies on a case from this 19 district that held an ALJ had erred by failing to consider “a significant piece of medical 20 evidence,” but he cites no such evidence here, so that argument also fails. (Doc. 12 at 11 21 (citing Lewis v. Comm’r of Soc. Sec. Admin., 625 F. Supp. 3d 942, 949–50 (D. Ariz. 22 2022)).) 23 The ALJ also discounted Poetz’s testimony of “constant dizziness” because he 24 exhibited “normal gait at multiple appointments,” denied dizziness at several 25 appointments, and showed “only slight difficulties with balance at his consultative 26 examination.” (AR 20–21.) Poetz contends the ALJ misinterpreted his testimony because 27 he did not claim constant dizziness but rather “dizziness when performing certain 28 movements.” (Doc. 12 at 10 n.5.) It is far from clear Poetz testified to that effect. The ALJ 1 asked Poetz if his dizziness “comes and goes or is [ ] there all the time[.]” (AR 37.) Poetz 2 replied “[i]t’s there all the time[.]” (AR 38.) He then went on to describe certain activities 3 that make him “extremely dizzy.” (AR 38.) When the ALJ asked whether Poetz gets dizzy 4 when “getting up from a seated position,” Poetz replied “[n]ot every time.” (AR 37.) It is 5 not clear from the transcript whether Poetz was or was not claiming constant dizziness. 6 (See AR 37–38.) But if Poetz “misspoke at the hearing . . . then his attorney should have 7 clarified the record at that time[,]” Ramirez v. Berryhill, No. CV 16-03755-KES, 2017 WL 8 5495505, at *24 (C.D. Cal. Nov. 15, 2017), and Poetz’s attorney asked no questions about 9 dizziness. (See AR 40–43.) So, it was reasonable for the ALJ to believe Poetz was testifying 10 he had constant dizziness and the contrast between the objective medical evidence and 11 Poetz’s testimony (see AR 20, 40–43) provides a valid basis for the ALJ to discount his 12 symptom testimony. 13 As Poetz points out, “ALJs may not cherry-pick portions of the evidence that 14 support the ALJ’s preferred outcome of a case while ignoring evidence that supports a 15 claimant’s symptom testimony.” (Doc. 12 at 10.) See Attmore v. Colvin, 827 F.3d 872, 16 877–78 (9th Cir. 2016) (noting an ALJ is “not permitted to ‘cherry pick’ from [ ] mixed 17 results to support a denial of benefits” but rather the ALJ’s examples must “constitute 18 examples of a broader development.”) (simplified). But Poetz does not explain how the 19 ALJ “cherry-picked” when normal findings and denials of symptoms existed throughout 20 the disability period. (See Doc. 12 at 11–12.) Contrary to Poetz’s argument that the ALJ 21 failed to “look to the record as a whole” (Doc. 15 at 6), the ALJ did discuss multiple 22 abnormal findings, noting some “could explain” or “could contribute” to the symptoms 23 Poetz complained of. (AR 20.) These included several of the records Poetz cited as 24 supporting a disability finding and as contradicting the ALJ’s findings. (Compare AR 20 25 with Doc. 12 at 10.) The ALJ evaluated the record as a whole and simply came to a different 26 conclusion than Poetz preferred. For these reasons, Poetz’s argument that the ALJ “cherry- 27 picked” portions of the medical records that supported his nondisability finding fails. 28 Although the ALJ erred in using Poetz’s daily activities in the testimony-rejection analysis without explicit substantiality and transferability findings, the error was harmless 2|| because the discrediting was otherwise supported by objective medical evidence. That 3|| evidence provided “specific, clear and convincing reasons” for discrediting Poetz’s 4|| symptom testimony and was sufficiently specific to conclude the ALJ “did not arbitrarily 5 || discredit” his testimony. Revels, 874 F.3d at 655 (quoting Garrison, 759 F.3d at 1014-15); 6|| Tommasetti, 533 F.3d at 1039. Thus, the ALJ’s decision to discredit Poetz’s testimony was || supported by substantial evidence. See Marsh, 792 F.3d at 1173. IV. Conclusion 9 Poetz’s contention that it was error for the ALJ to discount his symptom testimony fails. The ALJ’s decision is supported by substantial evidence and is not based on harmful legal error, so it is affirmed. 12 IT IS ORDERED affirming the March 28, 2023, decision of the ALJ. 13 IT IS FURTHER ORDERED directing the Clerk to enter final judgment consistent with this Order and close this case. 15 Dated this 10th day of January, 2025. 16 17 Vy, op A. Gf 18 ah AE Honorable Krissa M. Lanham 19 United States District Judge 20 21 22 23 24 25 26 27 28

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