Rodriguez v. Kijakazi

Opinion

PATRICIA R.,1 Case No.: 3:23-cv-02096-VET

Plaintiff, ORDER REGARDING JOINT v. MOTION FOR JUDICIAL REVIEW

LELAND DUDEK, Acting Commissioner of the Social Security Administration,2 [Doc. No. 16] Defendant.

1 Partially redacted in compliance with Civil Local Rule 7.1(e)(6)(b). Plaintiff seeks review of Defendant Commissioner’s denial of her application for disability insurance benefits and supplemental security income. Doc. No. 1. Before the Court is the parties’ Joint Motion for Judicial Review of Final Decision of the Commissioner of Social Security. Doc. No. 16 (“Joint Motion”). Therein, Plaintiff seeks resolution of the following issues: (1) whether the Administrative Law Judge (“ALJ”) properly evaluated Plaintiff’s testimony; and (2) whether the ALJ properly considered Plaintiff’s asthmatic flareups in evaluating her residual functional capacity (“RFC”). Id. at 5. Having considered the parties’ arguments, applicable law, and the record before it, and for the reasons discussed below, the Court AFFIRMS the Commissioner’s final decision. A. Procedural History Pursuant to the Social Security Act (“Act”), Plaintiff first applied for disability insurance benefits and supplemental security income on December 5, 2017, alleging disability commencing on February 28, 2013. Administrative Record (“AR”) 351–357.3 The Commissioner denied the application initially and on reconsideration. AR 273–277, 281–291. Plaintiff requested a de novo hearing before an ALJ, and on November 13, 2019, the ALJ held a hearing. AR 295, 167–200. On December 23, 2019, the ALJ found that Plaintiff was not disabled. AR 16–27. The Appeals Council declined review, and following a complaint for judicial review, this Court reversed the ALJ decision and remanded the matter for further proceedings. AR 1–6, 1200–1216. On remand, the ALJ conducted another hearing and issued an unfavorable decision on September 11, 2023. AR 1106–1120, 1129–1160. The ALJ again concluded that Plaintiff was not disabled within the meaning of the Act. AR 1106–1120. On November 13, 2023, Plaintiff initiated this action seeking judicial review of the ALJ’s decision. Doc. No. 1. The parties filed the Joint Motion on May 17, 2024.

B. Summary of the ALJ’s September 2023 Decision The ALJ followed the Commissioner’s five-step sequential evaluation process to determine whether Plaintiff was disabled. See 20 C.F.R. § 404.1520(a)(4). At step one, the ALJ determined that Plaintiff had “not engaged in substantial gainful activity since February 28, 2013,” the alleged onset date. AR 1109. At step two, the ALJ found that Plaintiff had the following severe impairments: diabetes mellitus II, asthma, osteoarthritis, hands, fingers, bunions of the feet, major depressive disorder, and generalized anxiety disorder. Id. At step three, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or was medically equivalent to those in the Commissioner’s Listing of Impairments. Id. Before proceeding to step four, the ALJ found that Plaintiff has the RFC to perform medium work with several limitations, including, in the part, the following: (1) ability to lift, carry, push, and pull 50 pounds occasionally and 25 pounds frequently; (2) ability to stand and/or walk 6 hours and sit 6 hours in an 8 hour workday with normal breaks; (3) avoid concentrated exposure to extreme cold, wetness, vibration, and pulmonary irritants; (4) avoid constant and regular contact with the general public; and (5) work in a low stress environment with few workplace changes. AR 1111– 1112. As part of the RFC assessment, the ALJ considered Plaintiff’s testimony regarding the frequency and severity of her asthma. The ALJ found that her statements “about the intensity, persistence, and limiting effects” of her symptoms were inconsistent with examination findings in the record, which did not support “the intensity, frequency, and debilitating effects to the extent alleged” by Plaintiff. AR 1113. In support of this conclusion, the ALJ cites examinations from July 2015, February 2016, October 2016, November 2017, February 2018, April 2018, and July 2018 where Plaintiff’s asthma symptoms were minimal or absent. AR 1113–1115. The ALJ further notes that Plaintiff was treated for asthma episodes which “resolved without complication,” Plaintiff repeatedly showed normal oxygen levels despite some minimal wheezing, had normal pulmonary efforts, and had never been intubated. AR 1115. In support of these statements, the ALJ cites examinations from February 2020, July 2020, September 2020, October 2020, March 2021, February 2021, October 2022, November 2022, January 2023, and March 2023. Id. At step four, based on Plaintiff’s RFC, the ALJ found that Plaintiff could not perform past relevant work. AR 1118. At step five, considering Plaintiff’s age, education, work experience, and RFC, the ALJ determined that Plaintiff could perform jobs that exist in significant numbers in the national economy. Id. Accordingly, the ALJ concluded that Plaintiff was not disabled between February 28, 2013 and the date of the decision. Id. A court may set aside the Commissioner’s denial of benefits “only if the ALJ’s decision was not supported by substantial evidence in the record as a whole or if the ALJ applied the wrong legal standard.” Coleman v. Saul, 979 F.3d 751, 755 (9th Cir. 2020); see 42 U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla,” and “means only . . . such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 587 U.S. 97, 103 (2019) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see also Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (substantial evidence is “more than a mere scintilla, but less than a preponderance”). A court “must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). If the evidence can reasonably support either affirming or reversing a decision, the Court may not substitute its judgment for that of the ALJ. Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014). Thus, “[i]f the evidence is susceptible to more than one rational interpretation, it is the ALJ’s conclusion that must be upheld.” Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (internal quotations omitted). Further, “review of an ALJ’s fact- finding for substantial evidence is deferential, and the threshold for such evidentiary sufficiency is not high.” Id. at 1159 (internal quotations omitted) (quoting Biestek, 587 U.S. at 103); Kitchen v. Kijakazi, 82 F.4th 732, 738 (9th Cir. 2023) (“Overall, the standard of review is highly deferential.”). Lastly, the Court will not reverse for harmless error. Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015). “An error is harmless only if it is inconsequential to the ultimate nondisability determination.” Lambert v. Saul, 980 F.3d 1266, 1278 (9th Cir. 2020) (internal quotations omitted). Plaintiff presents the following issues for the Court’s review, arguing that the ALJ erred as to each: 1. Whether the ALJ properly evaluated Plaintiff’s testimony; and 2. Whether the ALJ properly considered Plaintiff’s asthmatic flareups in evaluating the residual functional capacity. See generally Joint Motion. The Court addresses each in turn. A. The ALJ’s Analysis of Plaintiff’s Symptom Testimony Determining whether a claimant’s symptom testimony is credible involves a two- step analysis. “First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged.” Ferguson v. O’Malley, 95 F.4th 1194, 1199 (9th Cir. 2024) (quoting Garrison, 759 F.3d at 1014). As part of this analysis, “the claimant is not required to show that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of the symptom.” Garrison, 759 F.3d at 1014 (citation and internal quotations omitted). “Nor must a claimant produce objective medical evidence of the [symptom] itself, or the severity thereof.” Id. (citation and internal quotations omitted). “If the claimant satisfies the first step of the analysis, and there is no evidence of malingering, ‘the ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.’” Id. at 1014–1015 (quoting Smolen v. Charter, 80 F.3d 1273, 1281 (9th Cir. 1996)). “The clear and convincing standard is the most demanding required in Social Security cases.” Id. “The standard isn’t whether our court is convinced, but instead whether the ALJ’s rationale is clear enough that it has the power to convince.” Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022). “Contradiction with the medical record is a sufficient basis for rejecting the claimant’s subjective testimony.” Id. (citation omitted). “Ultimately, the ‘clear and convincing’ standard requires an ALJ to show his work . . . .” Id. “If the ALJ fails to provide specific, clear, and convincing reasons for discounting the claimant’s subjective symptom testimony, then the ALJ’s determination is not supported by substantial evidence.” Ferguson, 95 F.4th at 1199 (citation omitted). Here, there was no evidence or finding of malingering. See generally AR 1106– 1120. Accordingly, the ALJ was required to articulate specific, clear, and convincing reasons for rejecting Plaintiff’s testimony about the severity of her symptoms. Plaintiff argues that the ALJ failed to meet this standard in rejecting Plaintiff’s testimony. Joint Motion at 7. Specifically, Plaintiff contends that the ALJ ignored relevant medical evidence regarding Plaintiff’s asthma symptoms and failed to specify the testimony “undercut” by the medical evidence. Id. at 8–12. Plaintiff also faults the ALJ for relying on medical evidence that purportedly reflects cyclical improvements interspersed with debilitating symptoms and not “broader developments.” Id. at 12–13. The Court disagrees with Plaintiff’s characterization of the referenced evidence. First, while the ALJ does not address every piece of medical evidence related to Plaintiff’s asthma, he is not required to do so. See Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (“[I]n interpreting the evidence and developing the record, the ALJ does not need to discuss every piece of evidence.”) (internal citation and quotations omitted). Second, contrary to Plaintiff’s assertions, the ALJ identifies the relevant testimony at issue. Specifically, the ALJ notes that Plaintiff testified that she “is frequently hospitalized for asthma,” was recently treated for an asthma attack, was admitted to the hospital twice in 2023 and “treated in the ER about four times,” and uses a nebulizer and an inhaler. AR 1113. The ALJ also cites Plaintiff’s testimony that she “has episodic asthma flare-ups, lasting between 2 to [3] weeks,” she still has problems with flare-ups after discharge from care, and she suffers from coughing and headaches as “symptoms do not go away within a few days typically.” Id. Third, the Court rejects the notion that the ALJ impermissibly “cherry-picked” from the record. See Holohan v. Massanari, 246 F.3d 1195, 1207 (9th Cir. 2001). On the contrary, as detailed below, the ALJ cites to numerous records between 2015 through 2023 relating to Plaintiff’s asthma, including records detailing Plaintiff’s asthma symptoms at various times. For instance, the ALJ cites examination notes from February 4, 2020 that describe “minimal wheezing” and “wheezing noise” when Plaintiff breaths through her mouth. AR 1115 (citing AR 1533). The ALJ also references examination notes from July 21, 2020, stating that Plaintiff had “bilateral wheezing throughout all lung fields.” AR 1115 (citing AR 1644). The ALJ further cites examination notes from November 18, 2022, describing “course breath sounds” and a “faint wheeze” from Plaintiff. AR 1115 (citing AR 2590). Notably, Plaintiff references these examination records in support of her argument that the ALJ ignored medical evidence. Joint Motion at 9, 10. The ALJ also cites records relating to a hospitalization and a visit to urgent care. AR 1115 (citing AR 1644, 1651). Fourth, review of the evidence cited by the ALJ confirms that substantial evidence supports the ALJ’s conclusion, namely that the record is inconsistent with Plaintiff’s testimony. Specifically, the ALJ first cites to seven medical exams between October 2014 and July 2018 where Plaintiff showed reduced, or no symptoms related to asthma. AR 1113–1115 (citing AR 467, 479, 488, 496, 502, 579–580, 713). This includes, in part, the following: (i) a February 2016 exam where, despite Plaintiff’s complaint of asthmatic symptoms for the preceding three weeks, the examining physician found normal respiratory effort with no retractions or wheezes, see AR 1113 (citing AR 488); (ii) an October 2016 exam where Plaintiff complained of multiple asthma episodes a year, but the examining physician found her “breath sounds normal,” “no respiratory distress,” and no wheezes or rales, id. (citing AR 479); (iii) a November 2017 exam where Plaintiff is experiencing coughing, but her “breath sounds normal” and “she has no wheezes,” id. (citing AR 467); and (iv) a February 2018 exam where Plaintiff is exhibiting wheezes and rales but is suffering from pneumonia, id. (citing AR 579–580). The ALJ also cites more recent examinations between 2020 and 2023 that provide descriptions of mild to nonexistent asthma symptoms, including the following: (i) six examinations from July 22, 2020 through February 14, 2021 where Plaintiff showed normal oxygen saturation levels, see AR 1115 (citing AR 1651, 1664, 1688, 1795, 1802, 1829); (ii) five exams from July 21, 2020 to January 25, 2023 where examination notes indicate that “pulmonary effort is normal,” “no respiratory distress,” “no wheezing,” and/or “no rales,” id. (citing 1644, 1651, 2567, 2590, 2662); and (iii) clinical notes from October 22, 2020 that state Plaintiff “has never required oxygen and has never been intubated” despite “frequent exacerbations of her asthma;” id. (citing AR 1719). In short, the ALJ cites numerous medical examination records that repeatedly document normal pulmonary/chest efforts, normal breath sounds, no wheezing, no rales in the lungs, and normal oxygen saturation levels, despite Plaintiff’s reports of severe asthma symptoms or flareups. While the ALJ may not have cited every medical record referenced by Plaintiff in the Joint Motion, the ALJ is not required to “perform a line-by-line exegesis of the claimant’s testimony, nor … draft dissertations when denying benefits.” Lambert v. Saul, 980 F.3d 1266, 1277–1278 (9th Cir. 2020). In fact, “the ALJ’s analysis need not be extensive.” Treichler v. Comm’r of SSA, 775 F.3d 1090, 1103 (9th Cir. 2014). Lastly, the Court notes that many of the records Plaintiff cites concerning her asthma symptoms is mixed at best. For example, Plaintiff cites May 12, 2018 exam notes that reference wheezing and coughing, but those same notes indicate Plaintiff has “no respiratory distress” and “no rales.” AR 668. Similarly, an August 28, 2019 exam record states that Plaintiff has “diffuse I&O wheezing and left lower lobe rales” but also notes normal effort and breath sounds. AR 1085. Exam notes from two visits in November 2019 find “mild diffuse wheezing” or wheezing and rales in Plaintiff’s left lung, but also note “no respiratory distress,” “no rales,” and chest “effort normal.” AR 1482, 1507. In sum, the ALJ identifies the testimony at issue, analyzes the record relevant to that testimony, and ties that together to find that Plaintiff’s medical exams are inconsistent with Plaintiff’s testimony regarding the severity of her asthma symptoms. Accordingly, the Court finds that the ALJ provided specific, clear, and convincing reasons for rejecting Plaintiff’s testimony. B. The ALJ’s Analysis of Asthma Symptoms in Evaluating the RFC The RFC is the maximum a claimant can do in the workplace despite his or her limitations. 20 C.F.R. § 404.1545(a)(1). “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record, including, inter alia, medical records, lay evidence, and the effects of symptoms, including pain, that are reasonably attributed to a medically determinable impairment.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006) (emphasis in original). Moreover, “careful consideration” is required for “any evidence about symptoms because subjective descriptions may indicate more severe limitations or restrictions that can be shown by medical evidence alone.” Id. (internal citations and quotations omitted). “While the ALJ may find testimony not credible in part or in whole, he or she may not disregard it solely because it is not substantiated affirmatively by objective medical evidence.” Id. The ALJ meets this burden “by setting out a detailed and thorough summary of the facts and conflicting evidence, stating his interpretation thereof, and making findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986)). The Court will affirm an ALJ’s determination of a claimant’s RFC “if the ALJ applied the proper legal standard and his decision is supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). In determining her RFC, Plaintiff contends that the ALJ failed to properly consider her asthmatic flareups. In support thereof, Plaintiff identifies the number of days per year, from 2016 through 2022, during which Plaintiff was purportedly “adversely” or “significantly” affected by asthma flareups. Joint Motion at 22–24. And based on the frequency of Plaintiff’s asthma flareups, Plaintiff draws two conclusions. First, Plaintiff argues that such flareups would lead to a level of absenteeism from work that would effectively prevent her from maintaining employment. Id. at 24–25. Alternatively, Plaintiff suggests that the asthmatic flareups would limit her to light exertion, meaning she could not perform any of the medium occupations identified. Id. Both conclusions fail as neither has support in the record. First, as Plaintiff candidly admits, the absenteeism argument requires this Court to assume that Plaintiff “would be absent from work during periods of asthma exacerbation.” Id. at 24. And while the Vocational Expert (“VE”) confirmed that a person who is absent 25 days in a calendar year or consistently absent for more than one day a month would not “sustain” work, the VE was “speaking in generalities.” See AR 1152, 1154. Beyond argument and assumption, Plaintiff cites nothing in the record to support the conclusion that every asthma flareup referenced by Plaintiff would cause her to be absent from work (as Plaintiff suggests). For instance, Plaintiff cites no doctor or expert opining that Plaintiff’s asthmatic flareups would impact her attendance at work, let alone cause chronic absenteeism. Under these circumstances, there is no basis to conclude that the ALJ erred by not considering absenteeism in formulating the RFC. Similarly, there is no support for the conclusion that the asthma flareups would limit Plaintiff to light exertion work. Again, Plaintiff cites no medical evidence or expert opinions suggesting that the asthma flareups would cause the functional limitations that Plaintiff suggests. On the contrary, as outlined above, the record demonstrates that despite Plaintiff’s asthma, Plaintiff’s examinations repeatedly showed normal pulmonary/chest effort, normal breath sounds, no wheezing/rales in the lungs, and usually normal oxygen saturation levels. Speculation and argument by counsel are insufficient to support the conclusion that the ALJ erred. Lastly, the Court finds that the ALJ carefully considered the record as whole, including Plaintiff’s testimony, and crafted an RFC that contained several limitations. Those limitations accounted for Plaintiff’s asthma symptoms, including, for example, limitations that Plaintiff avoid concentrated exposure to extreme cold, wetness, vibration, fumes, dusts, gases, odors, poor ventilation and other pulmonary irritants, including smoke and cat dander. AR 1112. Notably, in determining the RFC, the ALJ relied, in part, on the opinions of DDS medical consultants, who are accepted medical sources that reviewed the medical evidence and supported their conclusions with detailed narrative reports. AR 1116; see also AR 201–217, 237–254. Plaintiff does not challenge the conclusions of the DDS medical consultants. The ALJ also, as outlined above, considered and explicitly referenced and/or discussed numerous records from 2015 through 2023 relating to Plaintiff’s asthma and associated symptoms. Moreover, for the reasons discussed supra, the ALJ’s consideration of Plaintiff’s symptom reports was legally sufficient and supported by substantial evidence. In short, in determining the RFC, the ALJ’s analysis satisfies the ALJ’s obligation to provide careful consideration of the available evidence relating to Plaintiff’s asthma symptoms, including flareups. Plaintiff may disagree with the ALJ’s analysis and advocate for an alternative interpretation, including drawing assumptions therefrom, but “[w]here the evidence is susceptible to more than one rational interpretation, it is the ALJ’s conclusion that must be upheld.” Morgan v. Comm’r of the SSA, 169 F.3d 595, 599 (9th Cir. 1999); Owen v. Saul, 808 F. App’x 421, 423 (9th Cir. 2020) (“Resolving conflicts is the ALJ’s responsibility and prerogative . . .”). The Court will not second guess the ALJ’s reasonable interpretation. Accordingly, the Court finds that the ALJ’s RFC determination is supported by substantial evidence. }|}V. CONCLUSION Based on the foregoing, the Court AFFIRMS the Commissioner’s final decision denying benefits. Accordingly, the IT IS HEREBY ORDERED that judgment be entered favor of Defendant Commissioner of the Social Security Administration and against Plaintiff. The Clerk of the Court is directed to close this action. [Jr Sh Dated: March 28, 2025 Honorable Valerie E. Torres United States Magistrate Judge 12