1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Reed Rotondo, No. CV-24-00005-PHX-JAT
10 Plaintiff, ORDER
11 v.
12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Pending before the Court is Plaintiff Reed Rotondo’s appeal from the Commissioner 16 of the Social Security Administration’s (“SSA,” “Commissioner,” or “Defendant,”) denial 17 of Social Security benefits. (Doc. 13). The appeal is fully briefed (Doc. 13; Doc. 17; Doc. 18 18), and the Court now rules. 19 I. BACKGROUND 20 The issues presented in this appeal are whether the ALJ committed materially 21 harmful error by (1) failing to include Plaintiff’s upper extremity limitations resulting from 22 his peripheral neuropathy in the RFC; (2) inappropriately dismissing RN Farmer’s 23 “medical opinion”; and (3) failing to meet her burden at Step Five in the sequential 24 disability evaluation process. (Doc. 13 at 4, 6, 7). 25 A. Factual Overview 26 Plaintiff was 37 years old on his alleged disability onset date. (Id. at 2). He has a 27 college education and a history of past relevant work as a commercial designer, technology 28 training coordinator, and vocational instructor. (Doc. 9-3 at 38). Plaintiff filed his disability 1 insurance benefits (DIB) application on May 12, 2020, alleging disabilities beginning on 2 April 29, 2020. (Doc. 13 at 1). On July 27, 2021, and March 4, 2022, Plaintiff testified in 3 telephonic hearings before an ALJ. (Id.) The ALJ denied Plaintiff’s claim on November 4, 4 2022. (Id. at 2). On November 6, 2023, the SSA Appeals Council denied Plaintiff’s request 5 for review of that decision and adopted the ALJ’s decision as the agency’s final decision. 6 (Id.) 7 B. The SSA’s Five-Step Evaluation Process 8 To qualify for social security disability insurance benefits, a claimant must show 9 that he “is under a disability.” 42 U.S.C. § 423(a)(1)(E). To be “under a disability,” the 10 claimant must be unable to engage in “substantial gainful activity” due to any medically 11 determinable physical or mental impairment. Id. § 423(d)(1). The impairment must be of 12 such severity that the claimant cannot do his previous work or any other substantial gainful 13 work within the national economy. Id. § 423(d)(2). The SSA has created a five-step 14 sequential evaluation process for determining whether an individual is disabled. See 20 15 C.F.R. § 404.1520(a)(1). The steps are followed in order, and each step is potentially 16 dispositive. See id. § 404.1520(a)(4). 17 At Step One, the ALJ determines whether the claimant is engaging in “substantial 18 gainful activity.” Id. § 404.1520(a)(4)(i). “Substantial gainful activity” is work activity that 19 is (1) “substantial,” i.e., doing “significant physical or mental activities”; and (2) “gainful,” 20 i.e., usually done “for pay or profit.” 20 C.F.R. § 416.972(a)–(b). If the claimant is engaging 21 in substantial gainful work activity, the ALJ will find the claimant is not disabled. Id. § 22 404.1520(a)(4)(i). 23 At Step Two, the ALJ determines whether the claimant has “a severe medically 24 determinable physical or mental impairment” or severe “combination of impairments.” Id. 25 § 404.1520(a)(4)(ii). To be “severe,” the claimant’s impairment must “significantly limit” 26 the claimant’s “physical or mental ability to do basic work activities.” Id. § 404.1520(c). 27 If the claimant does not have a severe impairment or combination of impairments, the ALJ 28 will find the claimant is not disabled. Id. § 404.1520(a)(4)(ii). 1 At Step Three, the ALJ determines whether the claimant’s impairment(s) “meets or 2 equals” an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404. Id. § 3 404.1520(a)(4)(iii). If so, the ALJ will find the claimant is disabled, but if not, the ALJ 4 must assess the claimant’s “residual functional capacity” (“RFC”) before proceeding to 5 Step Four. Id. §§ 404.1520(a)(4)(iii), 404.1520(e). The claimant’s RFC is his ability 6 perform physical and mental work activities “despite his limitations,” based on all relevant 7 evidence in the case record. Id. § 404.1545(a)(1). To determine RFC, the ALJ must 8 consider all the claimant’s impairments, including those that are not “severe,” and any 9 related symptoms that “affect what [the claimant] can do in a work setting.” Id. §§ 10 404.1545(a)(1)–(2). 11 At Step Four, the ALJ determines whether the claimant has the RFC to perform the 12 physical and mental demands of “his past relevant work.” Id. §§ 404.1520(a)(4)(iv), 13 404.1520(e). “Past relevant work” is work the claimant has “done within the past 15 years, 14 that was substantial gainful activity.” Id. § 404.1560(b)(1). If the claimant has the RFC to 15 perform his past relevant work, the ALJ will find the claimant is not disabled. Id. § 16 404.1520(a)(4)(iv). If the claimant cannot perform his past relevant work, the ALJ will 17 proceed to Step Five in the sequential evaluation process. 18 At Step Five, the final step, the ALJ considers whether the claimant “can make an 19 adjustment to other work,” considering his RFC, age, education, and work experience. Id. 20 § 404.1520(a)(v). If so, the ALJ will find the claimant not disabled. Id. If the claimant 21 cannot make this adjustment, the ALJ will find the opposite. Id. 22 C. The ALJ’s Application of the Factors 23 Here, at Step One, the ALJ concluded that the record established that Plaintiff had 24 not engaged in substantial gainful activity since April 1, 2018, the alleged onset date. (Doc. 25 9-3 at 25). 26 At Step Two, the ALJ determined that Plaintiff had the following severe 27 impairments: “lumbar degenerative disc disease; Ehlers-Danlos syndrome, hypermobility 28 type; orthostatic hypotension; peripheral neuropathy; cannabinoid hyperemesis syndrome; 1 and protein S deficiency with history of superior mesenteric vein and subclavian vein 2 thromboses.” (Id.) 3 At Step Three, the ALJ found that Plaintiff did not have any impairment or 4 combination of impairments that met or medically equaled a listed impairment in Appendix 5 1 to Subpart P of 20 C.F.F. Part 404. (Id. at 29). Subsequently, the ALJ determined that 6 Plaintiff had the RFC to perform sedentary work as defined in 20 C.F.R. § 404.1567(a) and 7 416.967(a), except this person can lift and carry 20 pounds occasionally 8 and 10 pounds frequently, sit for 3 hours at a time and 7 hours 9 total out of an 8-hour day; stand for 1 hour at a time and 4 hours total out of an 8-hour day; and walk for 30 minutes at a time 10 and 2 hours total out of an 8-hour day. He can frequently 11 operate foot controls; occasionally climb ramps and stairs; never climb ladders, ropes, or scaffolds; occasionally balance, 12 stoop, kneel, crouch, and crawl; and frequently reach. This 13 individual must avoid concentrated exposure to extreme temperatures and vibration and even moderate exposure to 14 hazards, like dangerous moving machinery and unprotected 15 heights. He is able to understand, remember, and carry out simple instructions and make simple, work-related decisions in 16 a routine work setting, and perform tasks that do not involve 17 fast-paced production requirements, like those found in assembly line work or fast-food restaurants during mealtimes. 18 (Id. at 31). 19 At Step Four, the ALJ determined that Plaintiff was unable to perform any past 20 relevant work. (Id. at 38). At Step Five, the ALJ found that Plaintiff could make sufficient 21 adjustments to perform a significant number of jobs in the national economy given his age, 22 education, work experience, and RFC. (Id. at 39). Examples of such jobs included patcher, 23 order clerk, information clerk, and document preparer. (Id.) Accordingly, the ALJ 24 concluded that Plaintiff was not disabled as defined in the Social Security Act from the 25 alleged onset date through November 4, 2022. (Id. at 40). 26 II. LEGAL STANDARD 27 This Court may not set aside a final denial of disability benefits unless the ALJ’s 28 decision is “based on legal error or not supported by substantial evidence in the record.” 1 Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (quoting Benton ex rel. Benton v. 2 Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003)). “Substantial” evidence involves “more 3 than a mere scintilla but less than a preponderance.” Thomas v. Barnhart, 278 F.3d 947, 4 954 (9th Cir. 2002). Substantial evidence is relevant evidence that “a reasonable mind 5 might accept as adequate to support a conclusion.” Id. (quoting Desrosiers v. Sec’y of 6 Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988)). The Court, in its review, must 7 consider the record in its entirety, “weighing both the evidence that supports and evidence 8 that detracts from the [ALJ’s] conclusion.” Id. (quoting Garrison v. Colvin, 759 F.3d 995, 9 1009 (9th Cir. 2007)). 10 The ALJ—not this Court—is responsible for resolving ambiguities, resolving 11 conflicts in medical testimony, determining credibility, and drawing logical inferences 12 from the medical record. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing 13 Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989); Gallant v. Heckler, 753 F.2d 14 1450, 1453 (9th Cir. 1984)). Therefore, when the evidence of record could result in more 15 than one rational interpretation, “the ALJ’s decision should be upheld.” Orn v. Astrue, 495 16 F.3d 625, 630 (9th Cir. 2007); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1198 17 (9th Cir. 2004) (“When the evidence before the ALJ is subject to more than one rational 18 interpretation, [the Court] must defer to the ALJ’s conclusion.”). Further, this Court may 19 only review the reasons the ALJ provides in the disability determination; it “may not affirm 20 the ALJ on a ground upon which he did not rely.” Garrison, 759 F.3d at 1010. 21 III. DISCUSSION 22 Plaintiff claims that the ALJ committed materially harmful legal error, based on the 23 following allegations: (1) the ALJ failed to include upper extremity limitations resulting 24 from Plaintiff’s peripheral neuropathy in the RFC; (2) the ALJ’s dismissal of RN Farmer’s 25 “medical opinion” was inappropriate; and (3) the ALJ failed to prove Plaintiff can perform 26 other work existing in significant numbers in the national economy. (Doc. 13 at 4, 6, 7). 27 The Court examines each claim in turn. 28 A. RFC and Upper Extremity Limitations 1 Plaintiff argues that the ALJ committed “harmful, reversible, error” because despite 2 finding peripheral neuropathy to be a severe impairment, the ALJ did not include in the 3 RFC any limits regarding Plaintiff’s upper extremity limitations—specifically, those 4 involving his “ability to use his hands for fingering, feeling[,] or grasping.” (Doc. 13 at 4). 5 Plaintiff asserts that the ALJ instead “focused on the limitations she placed on the 6 plaintiff’s ability to stand, walk, and perform postural maneuvers which would account for 7 how the neuropathy impacts his lower extremities,” failing to discuss “why there were no 8 assigned limitations to account for the neuropathy in his dominant hand.” (Doc. 13 at 5). 9 In his opening brief, as grounds for including hand limitations in the RFC, Plaintiff 10 points to “objective testing in the form of electromyography and nerve conduction studies,” 11 which confirm “the existence of peripheral neuropathy in [Plaintiff’s] right upper and lower 12 extremities.” (Doc. 13 at 4). Plaintiff also points to his administrative hearing testimony 13 that he “experiences pins and needles in his hands,” that gabapentin “numbs out his hands,” 14 and that he has “issues with dropping things,” as well as his wife’s testimony regarding his 15 “inability to hold onto items.” (Doc. 13 at 4). 16 The ALJ clearly considered the above evidence, writing in her decision the 17 following: 18 A November 2019 electromyography revealed the presence of 19 peripheral neuropathy. (See, e.g., Ex. 4F at 24-28). The 20 claimant reports his neuropathic attacks consist of a feeling of pins and needles in his hands and feet with sluggishness, 21 impaired gait, memory issues, and difficulty concentrating. 22 (See, e.g., Ex. 4F at 7; 5F at 1). Providers did, on occasion, find paresthesia in his distal extremities. (Ex. 12F at 7). 23
24 (Doc. 9-3 at 35) (emphasis added). 25 As to Plaintiff’s argument that the ALJ failed to discuss “why there were no assigned 26 limitations to account for the neuropathy in [Plaintiff’s] dominant hand” (Doc. 13 at 5), the 27 Court disagrees. Regarding Plaintiff’s peripheral neuropathy as it pertains to his RFC, the 28 ALJ wrote as follows: 1 Given maximum consideration to the claimant’s allegations of 2 gait impairment, sluggishness, and dysthesias, the residual 3 functional capacity limits the claimant’s exertional and postural activities in the workplace. Greater limitations are not 4 warranted, however, as treatment records regularly revealed 5 normal sensation. (See, e.g., Ex. 5F at 3; 10F at 3)…. Additionally, reports to treaters indicated that he found 6 Gabapentin beneficial. (Ex. 12F at 6). Significantly, the 7 claimant reported 75 percent improvement in his symptoms with his medications and stated he was tolerating them well. 8 (Ex. 18F at 7). Overall, the apparent relief with conservative 9 treatment and frequency of grossly normal findings demonstrate that this impairment and its effects are not as 10 intense, persistent, or limiting as he alleges. Therefore, 11 additional limitations are not warranted for this impairment.
12 (Id.) (emphasis added). Here, the ALJ considered the Plaintiff’s neuropathy, including the 13 dysthesias in his hands, and consequently included limitations of exertional and postural 14 activities in Plaintiff’s RFC. (Id.) The ALJ then explained, however, that treatment records 15 revealing normal sensation and evidence of significant improvement of Plaintiff’s 16 symptoms with medication suggested that the effects of Plaintiff’s peripheral neuropathy— 17 including those impacting his upper extremities—were “not as intense, persistent, or 18 limiting as [Plaintiff] alleges.” (Id.) Based on this substantial evidence, the ALJ 19 appropriately concluded that “additional limitations are not warranted.” (Id.) 20 Moreover, the ALJ cites additional evidence in support of her decision not to include 21 additional upper extremity limitations in the RFC. In determining the RFC, the ALJ 22 considered the findings of two State agency medical consultants and the medical opinions 23 of Plaintiff’s treating physician, Dr. John Daller. (Id. at 37–38). Both State consultants 24 identified peripheral neuropathy as one of Plaintiff’s impairments, yet opined that Plaintiff 25 has no manipulative limitations. (Exs. 2A at 7; 4A at 12). Dr. Daller opined that Plaintiff 26 could perform “Handling,” “Fingering,” and “Feeling” with both hands “Continuously” 27 over the course of a workday. (Exs. 33F at 4; 35F at 4). The ALJ found the State 28 consultants’ opinions to be “generally persuasive” and Dr. Daller’s opinion to be “most 1 persuasive” in part because these opinions were consistent with longitudinal evidence in 2 Plaintiff’s medical record revealing normal “strength, sensation, and range of motion … in 3 spite of [Plaintiff’s] impairments,” including his peripheral neuropathy. (Id.). These 4 medical opinions constitute substantial evidence in support of the ALJ’s decision not to 5 include additional upper extremity limitations in the RFC. Thomas, 278 F.3d at 954 6 (indicating that substantial evidence is relevant evidence that “a reasonable mind might 7 accept as adequate to support a conclusion” and involves “more than a mere scintilla but 8 less than a preponderance.”) (internal citation omitted). 9 In his Reply Brief, for the first time, Plaintiff essentially argues that the evidence 10 upon which the ALJ relied in her decision regarding the inclusion of upper extremity 11 limitations in Plaintiff’s RFC is insufficient. (See Doc. 18 at 2–4). Specifically, Plaintiff 12 asserts that: (1) the ALJ’s finding that “treatment records regularly revealed normal 13 sensation” lacks “the significance the Commissioner tries to attach, because the “history of 14 illness” in the treatment records to which the ALJ refers “focused on [Plaintiff’s] 15 symptomology and not his functional limitations” (Doc. 18 at 2); (2) because these records 16 reflect the results of of examinations that “were performed via telehealth” due to “the 17 COVID-19 pandemic,” they “do not constitute substantial evidence” (Id. at 3); (3) the 18 opinions of the State agency consultants and Dr. Daller lack sufficient rationale (Id. at 3– 19 4); (4) a “normal” neurological exam that Dr. Daller cited to support his opinion was “not, 20 in fact, normal” (Id.); and (5) the ALJ’s reliance on the improvement in Plaintiff’s 21 neuropathy symptoms following Gabapentin administration “is flawed because [Plaintiff] 22 reported that the side effects also make him slow and weak.” (Id. at 4). However, Plaintiff 23 failed to specifically assert any of these issues in his Opening Brief. (see generally Doc. 24 13). As such, this Court is under no obligation to take these issues into consideration. 25 Independent Towers of Washington v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) 26 (“[The Ninth Circuit] has repeatedly admonished that we cannot manufacture arguments 27 for an appellant and therefore we will not consider any claims that were not actually argued 28 in [an] appellant’s opening brief. Rather, we review only issues which are argued 1 specifically and distinctly in a party’s opening brief.”) (internal citations and quotations 2 omitted). 3 Furthermore, even if the Court were to address these additional issues, to the extent 4 Plaintiff suggests an alternative reading of the record to support his argument for a more 5 restrictive RFC, the Court must defer to the ALJ to resolve any conflicts in the evidence. 6 See Andrews, 53 F.3d at 1039 (stating that the ALJ, not a reviewing court, is responsible 7 for resolving ambiguities and resolving conflicts in the medical testimony and medical 8 record, determining credibility, and drawing logical inferences). That there may be 9 evidence that potentially supports an alternative assessment does not provide a basis for 10 this Court to alter the ALJ’s RFC determination under a deferential standard of review. 11 Orn, 495 F.3d at 630 (stating that when the evidence of record could result in more than 12 one rational interpretation, “the ALJ’s decision should be upheld”); Batson, 359 F.3d at 13 1198 (“When the evidence before the ALJ is subject to more than one rational 14 interpretation, [the Court] must defer to the ALJ’s conclusion.”). 15 Plaintiff also points to his administrative hearing testimony that he “experiences 16 pins and needles in his hands,” that gabapentin “numbs out his hands,” and that he has 17 “issues with dropping things”—as well as his wife’s testimony regarding his “inability to 18 hold onto items”—as additional grounds to incorporate upper extremity limitations into the 19 RFC. (Doc. 13 at 4). However, the ALJ did not find Plaintiff’s testimony regarding these 20 symptoms to be credible. (Doc. 9-3 at 35) (“Overall, the apparent relief with conservative 21 treatment and frequency of grossly normal findings demonstrate that this impairment and 22 its effects are not as intense, persistent, or limiting as [Plaintiff] alleges.”). Nor did she find 23 believable Plaintiff’s wife’s testimony. (Id. at 33) (“While considered, these statements are 24 not consistent with the objective findings in the medical record.”). As Plaintiff did not 25 specifically challenge the ALJ’s determination regarding this testimony on appeal in his 26 opening brief, the Court considers this issue waived. Independent Towers of Washington, 27 350 F.3d at 929 (“we cannot manufacture arguments for an appellant and therefore we will 28 not consider any claims that were not actually argued in [an] appellant’s opening brief”) 1 (internal citation and quotation omitted); Shaibi v. Berryhill, 870 F.3d 874, 882 (9th Cir. 2 2017) (same). 3 Accordingly, the Court finds that in declining to include limitations regarding 4 Plaintiff’s use of his upper extremities in the RFC, the ALJ committed no harmful error. 5 B. RN Farmer’s “Medical Opinion” 6 Plaintiff also claims that the “the ALJ’s dismissal of RN Farmer’s medical opinion 7 constitutes legal error” because she did not provide adequate justification for the dismissal. 8 (Doc. 13 at 6). First, Plaintiff argues that the ALJ failed to “explain how [she] considered 9 the supportability and consistency factors in reaching [her] findings.” (Id.) (citing 20 C.F.R. 10 § 404.1520c(b)(3)). Second, Plaintiff asserts that the ALJ’s finding that RN Farmer’s 11 “opinion [was] unpersuasive due to no treatment notes from RN Farmer being submitted 12 into the record” was inappropriate because the ALJ had a “heightened duty to develop the 13 record.” (Id. at 6–7). 14 During the administrative hearing on July 27, 2021, Plaintiff read a statement from 15 his in-home nurse, Billy Ann Farmer, R.N., into the record, as follows: 16 I met this patient in July of 2020 through a home health agency. 17 His physician, Dr. Desai, ordered for this patient to have one 18 to two liters of normal saline twice a week. And if I am not mistaken, that went up to three times a week if the patient 19 required the hydration or medication Zofran for nausea. While 20 taking care of this gentleman, I have yet to see him have a good seven days in a row. The day after his infusion, I will check in 21 with him, and he typically will have a good day … on that day, 22 but not always. I have been called out in several – symptoms [sic], and to keep the patient out of the COVID-filled 23 emergency rooms. This patient lives with the nausea and 24 abdominal pain on pretty much a daily basis. He reports this abdominal pain is stabbing or – and/or dull in the left lower 25 quadrant, but also mid-abdominal. During episodes for this 26 patient, the pain progresses to the right upper quadrant, right lung, and his right shoulder he also feels mid-sternal chest 27 discomfort, blurred vision, aphasia, dizziness, and he may become verbally, but never physically aggressive. I have 28 observed this patient on a Monday be pale, have poor skin 1 color, clammy to the touch, and reporting pain. When the pain gets bad enough, he reports flu-like pain, both muscular 2 discomfort and his skin hurts. Then by Thursday, I would 3 observe the patient on the floor, weeping from pain in the fetal position. From what I can tell, this patient has lost around ten 4 pounds at least in the last year, and this [is] just a visual 5 assessment of actual weight. I can attest at this point in this patient’s life, with what I have seen, he could not hold down a 6 full-time job. He would have to call out a minimum of three- 7 to-four times a week from what I’ve actually seen in person myself. I have also seen this patient have increased signs and 8 symptoms of depression at times. He tries to stay strong but 9 going through what I have seen him go through, I know this is both physically and mentally difficult. I do affirm that 10 everything I have stated, I have seen for myself and know from 11 first-hand knowledge due to caring for this gentleman.
12 (Doc. 9-3 at 52, 81–83). 13 The ALJ found RN Farmer’s statement unpersuasive, stating the following: 14
15 The written version of this statement is not in the record as it 16 was not submitted by the claimant. (See, e.g., Ex. 20E). Nevertheless, the undersigned has considered the statement. 17 However, no treatment records from Nurse Farmer were submitted. Because there are no treatment records to 18 substantiate the statement, it is not persuasive. Any statement 19 that the claimant is unable to work is a decision of disability reserved to the Commissioner and is therefore inherently 20 neither valuable nor persuasive. 21 22 (Id. at 37). 23 Defendant argues that the ALJ properly found that RN Farmer’s statement was not 24 a medical opinion, but rather, “a statement on an issue reserved to the Commissioner.” 25 (Doc. 17 at 5). The Court agrees with Defendant. See Martinez v. Astrue, 261 Fed. App’x. 26 33, 35 (9th Cir. 2007) (“[T]the opinion that [a claimant] is unable to work is not a medical 27 opinion, but is an opinion about an issue reserved for the Commissioner.”). As discussed 28 above, generally, under the revised 2017 SSA regulations, when reviewing an ALJ’s 1 decision to reject a medical source’s opinion, a court must determine whether the ALJ 2 “considered the supportability and consistency factors” and, if so, whether substantial 3 evidence supports the ALJ’s decisions concerning those factors. Woods, 32 F.4th at 792. 4 Yet, these requirements apply only to the ALJ’s evaluation of medical opinions, and not 5 all medical source statements qualify as opinions. Windish v. Comm’r of Soc. Sec. Admin., 6 No. CV-22-01162-PHX-DWL, 2023 WL 6568185, *7 (D. Ariz. Oct. 10, 2023) (citing Hale 7 v. Kijakazi, CV 21-53-H-JTJ, 2022 WL 14654959, *6 (D. Mont. Oct. 25,2022) (“An ALJ 8 must discuss statements by a medical source that qualify as ‘medical opinions’ … [but] is 9 not required to address statements by a medical source that do not qualify as medical 10 opinions.”) (citations omitted)). The 2017 SSA regulations define a “medical opinion” as: 11 A medical opinion is a statement from a medical source about 12 what you can still do despite your impairment(s) and whether 13 you have one or more impairment-related limitations or restrictions in the following abilities: ... (i) Your ability to 14 perform physical demands of work activities, such as sitting, 15 standing, walking, lifting, carrying, pushing, pulling, or other physical functions (including manipulative or postural 16 functions, such as reaching, handling, stooping, or crouching); 17 (ii) Your ability to perform mental demands of work activities, such as understanding; remembering; maintaining 18 concentration, persistence, or pace; carrying out instructions; 19 or responding appropriately to supervision, co-workers, or work pressures in a work setting; (iii) Your ability to perform 20 other demands of work, such as seeing, hearing, or using other 21 senses; and (iv) Your ability to adapt to environmental conditions, such as temperature extremes or fumes. 22 23 Id. (quoting 20 C.F.R. § 404.1513(a)(2)). 24 Here, RN Farmer’s statement does not satisfy the statutory definition of a “medical 25 opinion,” because it does not describe what Plaintiff can still do despite his impairments. 26 Id. (citing Dorsey v. Comm’r of Soc. Sec. Admin., No. CV-22-01297-PHX-DWL, 2023 WL 27 6058505, *5 (D. Ariz. Sept. 18, 2023) (“The statement in Dr. Subbarao’s treatment note 28 does not qualify as a ‘medical opinion’ ... because it does not address Plaintiff’s 1 functionality and merely describes the frequency ... of Plaintiff’s headaches.”); Brayden B. 2 v. Comm’r, Soc. Sec. Admin., No. 3:20-cv-1963-MO, 2023 WL 5606981, *4 (D. Or. Aug. 3 30, 2023) (“[The physician] did not provide any description of what Plaintiff could still do 4 despite his urticaria. Nothing in the record or Plaintiff’s briefing shows where [the 5 physician] identified what Plaintiff can do despite his limitations; the sum total of the 6 opinion is that his urticaria and dermatitis ‘keep him from working.’ Because that is not a 7 ‘medical opinion’ that requires independent analysis under the regulations, the Court finds 8 the ALJ did not err by failing to analyze [the physician’s] opinion.”) (citations omitted); 9 Rodin v. Comm’r of Soc. Sec., Case No. 1:21-cv-00900-SAB, 2023 WL 3293423, *18–19 10 (E.D. Cal. May 5, 2023) (“[N]otably absent are specific opinions concerning what Plaintiff 11 is capable of doing, and specific functional limitations.... Accordingly, the Court finds the 12 ALJ was not required to evaluate [the physician’s] treatment notes as a ‘medical opinion’ 13 under the relevant regulations.”). 14 Consequently, the Court agrees with Defendant’s assertion that RN Farmer’s 15 statement regarding Plaintiff did not constitute a “medical opinion.” Thus, although the 16 ALJ chose to discuss RN Farmer’s statement in her written decision, she was not required 17 to do so, nor was she required to articulate how supportability and consistency factors, 18 supported by substantial evidence, influenced her decision to reject the statement. 20 19 C.F.R. § 404.1520b(c)(3)(i). 20 Moreover, the Court finds little merit in Plaintiff’s argument that the ALJ erred in 21 finding that RN Farmer’s “opinion [was] unpersuasive due to no treatment notes from RN 22 Farmer being submitted into the record” because the ALJ had a “heightened duty to 23 develop the record.” (Doc. 13 at 6–7). The Court acknowledges that ALJs have a 24 heightened duty to develop the record where a claimant is not represented by counsel, as 25 is the case here. Celaya v. Halter, 332 F.3d 1177, 1177 (9th Cir. 2003). However, as 26 discussed above, the ALJ also found RN Farmer’s statement “neither valuable nor 27 persuasive” because “any statement that the claimant is unable to work is a decision of 28 disability reserved to the Commissioner.” (Doc. 9-3 at 37). This is a legitimate ground by 1 which an ALJ may reject a medical source statement. 20 C.F.R. § 404.1520(c)(3) 2 (“Statements on issues reserved to the Commissioner” are “[e]vidence that is inherently 3 neither valuable nor persuasive.”); Butch S. v. Kijakazi, No. 421CV00405BLWDKG, 2023 4 WL 2168469, at *11 (D. Idaho Feb. 6, 2023) (“The ALJ properly found Butler’s letter not 5 persuasive because it opinioned only on the ultimate issue reserved to the Commissioner 6 ... Butler’s letter offered no opinion concerning Plaintiff’s functional limitations [and] 7 [t]herefore, it was not a ‘medical opinion’ that the ALJ was required to evaluate under the 8 revised regulations[,] [r]ather, the letter concerned Plaintiff’s ability to procure and 9 maintain employment, which was neither valuable nor persuasive to the disability 10 determination.”). As such, even assuming arguendo that the ALJ did err in rejecting RN 11 Farmer’s statement due to a lack of corresponding treatment notes, any such error is 12 harmless. Molina v. Astrue, 674 F.3d, 1104, 1115 (9th Cir. 2012) (stating an ALJ’s error is 13 harmless where it is “inconsequential to the ultimate nondisability determination”). 14 C. Other Work Existing in Significant Numbers in the National 15 Economy 16 Plaintiff argues that the ALJ failed to meet her burden of showing at Step Five that 17 there is a significant number of jobs in the economy that Plaintiff can perform within the 18 limits of his assigned RFC. (Doc. 13 at 8). First, Plaintiff claims that the ALJ erred because 19 three of the occupations she identified at Step Five (“order clerk, information clerk, and 20 document preparer”) are at “Reasoning Level 3,” which exceeds the Reasoning Level 21 consistent with Plaintiff’s RFC (“Reasoning Level 2”). (Id. at 8–10). Second, Plaintiff 22 argues that although the fourth and final occupation the ALJ identified at Step Five, 23 “patcher,” is at “Reasoning Level 2,” consistent with Plaintiff’s RFC, the “25,253 [patcher] 24 jobs available in the national economy” is not a “significant number” sufficient to meet the 25 ALJ’s burden at Step Five. (Id.) 26 In support of his second argument, Plaintiff states that “there is no bright line rule” 27 in the Ninth Circuit regarding what qualifies as a significant number of jobs in the national 28 economy, emphasizing dicta in Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 529 (9th 1 Cir. 2014), where the court stated that an “ALJ’s finding that 25,000 national jobs is 2 sufficient presents a close call.” (Doc. 13 at 11). Plaintiff also identifies other district courts 3 in the Ninth Circuit that “have found numbers less than 25,000 to be insignificant.” (Id.) 4 (citing Baker v. Comm’r of Soc. Sec., No. 1:13-cv-01350-SAB, 2014 WL 3615497, *8 5 (E.D. Cal. July 21, 2014) (holding 14,500 national jobs insignificant); Valencia v. Astrue, 6 No. c. 11–06223 LB, 2013 WL 1209353, * 18 (N.D. Cal. Mar. 25, 2013) (holding 14,082 7 national jobs insignificant); Michael B. v. Comm’r of Soc. Sec., Civ. No. 3:19-cv-00760- 8 AA, 2022 WL 376031, *3 (holding 6,660 national jobs insignificant.)). 9 Plaintiff is correct that the Ninth Circuit has no bright line rule establishing what 10 constitutes “a significant number of jobs” in the national economy for the purposes of 11 determining disability at Step Five in the ALJ’s analysis. Nash v. Comm’r of Soc. Sec. 12 Admin., no. CV-23-02018-PHX-JAT, 2024 WL 1550771, *8 (D. Ariz. Apr. 10, 2024) 13 (citing Gutierrez, 740 F.3d at 528, 529). Hence, this Court must look to “exemplary 14 decisions by the Ninth Circuit to determine an estimate for what constitutes a significant 15 number of jobs in the national economy.” Id. In Gutierrez, as Plaintiff points out, the Ninth 16 Circuit stated that a total of 25,000 national jobs presented “a close call.” 740 F.3d at 529. 17 However, despite this, the court ultimately determined that a total of 25,000 jobs constitutes 18 a significant number in the national economy “because it represents a significant number 19 of jobs in several regions of the country.” Id. Further, the other cases to which Plaintiff 20 cites in support of his argument are unpublished decisions from district courts and are 21 therefore persuasive, not binding, authority. 22 Thus, under the Ninth Circuit’s precedent finding that a total of 25,000 national jobs 23 is significant, and under its precedential deference to “an ALJ’s supported finding that that 24 a particular number of jobs in the claimant’s region was significant,” the Court concludes 25 that a total of 25,253 “patcher” jobs represents a significant number of jobs in the national 26 economy. Nash, 2024 WL 1550771, at *8 (reaching the same conclusion and providing the 27 same reasoning regarding 129,000 total national jobs). 28 Consequently, even if, as Plaintiff argues, he is unable to perform the requirements || of the occupations of “order clerk, information clerk, and document preparer” because their 2|| Reasoning Levels exceed the Reasoning Level consistent with his RFC, work that Plaintiff 3 || could perform still exists in significant numbers in the national economy. As such, the ALJ committed no materially harmful error based on her finding to this end. 5 IV. CONCLUSION 6 For the foregoing reasons, 7 IT IS ORDERED that the ALJ’s decision is AFFIRMED. 8 IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment 9|| accordingly. 10 Dated this 2nd day of December, 2024. 11 a 3 12 B _ James A. Teil Org Senior United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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