Rush v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: May 31, 2024
• Docket: 3:22-cv-08200
• Status: Unknown

Opinion

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

9 Rhonda Rush, No. CV-22-08200-PCT-GMS

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14

15 16 Plaintiff Rhonda Rush seeks review under 42 U.S.C. § 405(g) of the final decision 17 of the Commissioner of Social Security (“the Commissioner”), which denied her disability 18 insurance benefits and supplemental security income under §§ 216(i), 223(d), and 19 1614(a)(3)(A) of the Social Security Act. Because the decision of the Administrative Law 20 Judge (“ALJ”) is supported by substantial evidence and is not based on legal error, the 21 Commissioner’s decision is affirmed. 22 I. BACKGROUND 23 Plaintiff was born in July 1962. She has at least a high school education. (Doc. 11- 24 3 at 169). Her prior jobs were cashier, cleaning apartments, special needs 25 childcare/teacher, and road flagger. (Id. at 177–81). Plaintiff’s impairments are 26 neuropathy in feet and hands, pain in the back, neck and hip, tennis elbow, headaches and 27 jaw pain, numbness in arms and depression. (Id. at 193–99). 28 1 On April 22, 2019, Plaintiff applied for disability and disability insurance benefits. 2 She filed for supplemental security income the next day. In both applications, Plaintiff 3 alleged disability on September 29, 2017. Plaintiff later amended her alleged onset date to 4 December 4, 2017. These claims were denied initially on September 19, 2019, and upon 5 reconsideration on June 26, 2020. On April 28, 2021, she appeared with her attorney 6 telephonically and testified at a hearing before the ALJ. A vocational expert also testified. 7 (Id. at 23). On August 25, 2021, the ALJ issued a decision that Plaintiff was not disabled 8 within the meaning of the Social Security Act. The Appeals Council denied Plaintiff’s 9 request for review of the hearing decision, making the ALJ’s decision the Commissioner’s 10 final decision. (Id. at 2, 23, 31). On October 31, 2022, Plaintiff sought review from this 11 Court (Doc. 1). 12 II. STANDARD OF REVIEW 13 The district court reviews only those issues raised by the party challenging the ALJ’s 14 decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). “[O]nly issues [that] 15 are argued specifically and distinctly in a party’s opening brief” are reviewed.” Indep. 16 Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003). Moreover, when 17 claimants are represented by counsel, they must raise all issues and evidence at their 18 administrative hearings to preserve them on appeal.” Meanel v. Apfel, 172 F.3d 1111, 1115 19 (9th Cir. 1999). Failure to do so will only be excused when necessary to avoid a manifest 20 injustice. Id. 21 A court may set aside the Commissioner’s disability determination only if the 22 determination is not supported by substantial evidence or is based on legal error. Orn v. 23 Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “Substantial evidence is more than a mere 24 scintilla but less than a preponderance.” Id. (quoting Bayliss v. Barnhart, 427 F.3d 1211, 25 1214 n. 1 (9th Cir.2005)). It is “relevant evidence that a reasonable person might accept 26 as adequate to support a conclusion” considering the record as a whole. Id. (quoting Burch 27 v. Barnhart, 400 F.3d 676, 679 (9th Cir.2005)). In determining whether substantial 28 evidence supports a decision, the court must consider the record as a whole and may not 1 affirm simply by isolating a “specific quantum of supporting evidence.” Id. (quoting 2 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir.2006)). Generally, when the 3 evidence is susceptible to more than one rational interpretation, courts “must uphold the 4 ALJ’s findings if they are supported by inferences reasonably drawn from the record.” 5 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). “Overall, the standard of review is 6 ‘highly deferential.’” Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 7 2015) (quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir.2009)). 8 III. FIVE-STEP SEQUENTIAL EVALUATION PROCESS 9 To determine whether a claimant is disabled for purposes of the Social Security Act, 10 the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the 11 burden of proof on the first four steps, but the burden shifts to the Commissioner at step 12 five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).1 13 At step one, the ALJ found that Plaintiff meets the insured status requirements of 14 the Social Security Act through June 30, 2023, and that she has not engaged in substantial 15 gainful activity since December 4, 2017. (Doc. 11-3 at 25). At step two, the ALJ found 16 that Plaintiff has the following severe impairments: peripheral neuropathy not otherwise 17 specified, lumbar degenerative disc disease, cervical spondylosis status post ACDF, 18 migraine headaches, chronic pain syndrome, lower extremity fracture, osteoarthritis, 19 degenerative joint disease/tendinitis/impingement syndrome status post right shoulder 20 surgery, tenosynovitis, and carpal tunnel syndrome. (Id. at 26). At step three, the ALJ 21 1 At the first step, the ALJ determines whether the claimant is engaging in substantial 22 gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant has a severe 23 medically determinable physical or mental impairment. § 404.1520(a)(4)(ii). If not, the claimant is not disabled and the inquiry ends. Id. At step three, the ALJ considers whether 24 the claimant’s impairment or combination of impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. § 404.1520(a)(4)(iii). 25 If so, the claimant is automatically found to be disabled. Id. If not, the ALJ proceeds to step four. See id. At step four, the ALJ assesses the claimant’s residual functional capacity 26 and determines whether the claimant is still capable of performing past relevant work. § 404.1520(a)(4)(iv). If so, the claimant is not disabled and the inquiry ends. Id. If not, 27 the ALJ proceeds to the fifth and final step, where he determines whether the claimant can perform any other work based on the claimant’s residual functional capacity, age, 28 education, and work experience. § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is disabled. Id. 1 determined that Plaintiff does not have an impairment or combination of impairments that 2 meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 3 404, Subpart P, Appendix 1. At step four, the ALJ found that Plaintiff has the residual 4 functional capacity to perform light work as defined in 20 C.F.R. 404.1567(b) and 5 416.967(b). She can occasionally push and pull with the right dominant upper extremity; 6 occasionally reach overhead with the right dominant upper extremity; occasionally climb 7 ladders, kneel and crawl; frequently climb ramps or stairs, balance, stoop and crouch. She 8 can never climb ropes or scaffolds; and must avoid concentrated exposure to hazards, 9 including heights and moving machinery. The ALJ further found that Plaintiff is able to 10 perform any of her past relevant work as a flagger (DOT 371.667-010, SVP 3, light 11 according to the DOT, and performed at light). This work does not require the performance 12 of work-related activities precluded by Plaintiff’s residual functional capacity (20 C.F.R. 13 404.1565 and 416.965). At step five, the ALJ concluded that, considering Plaintiff’s age, 14 education, work experience, and residual functional capacity, there are jobs that exist in 15 significant numbers in the national economy that Plaintiff could perform. (Doc. 11-3 at 16 27). 17 IV. ANALYSIS 18 A. The ALJ Provided Clear and Convincing Reasons for Discrediting 19 Plaintiff’s Symptom Testimony. 20 If a claimant’s statements about pain or other symptoms are not substantiated by 21 objective medical evidence, the ALJ must nevertheless consider all of the evidence in the 22 case record, including any statement by the claimant and other persons, concerning the 23 claimant’s symptoms. SSR 16-3p, 2016 WL 1119029, at *4 (March 16, 2016), amended 24 by SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017) [hereinafter SSR 16-3p]. Then the ALJ 25 must make a finding on the intensity, persistence, and limiting effects of claimant’s 26 symptoms. Id. 27 28 1 In evaluating the intensity, persistence, and limiting effects of a Claimant’s 2 symptoms, the ALJ will consider a set of seven factors in addition to all the existing 3 evidence: 4 1. Daily activities; 5 2. The location, duration, frequency, and intensity of pain or other 6 symptoms; 7 3. Factors that precipitate and aggravate the symptoms; 8 4. The type, dosage, effectiveness, and side effects of any 9 medication an individual takes or has taken to alleviate pain or 10 other symptoms; 11 5. Treatment, other than medication, an individual receives or has 12 received for relief of pain or other symptoms; 13 6. Any measures other than treatment an individual uses or has 14 used to relieve pain or other symptoms (e.g., lying flat on his 15 or her back, standing for 15 to 20 minutes every hour, or 16 sleeping on a board); and 17 7. Any other factors concerning an individual’s functional limitations and 18 restrictions due to pain or other symptoms. 19 Id. at *7–8. The ALJ will only discuss those factors made relevant by the evidence. Id. at 20 *8. A claimant’s statements about his own symptoms will weigh in this analysis based on 21 their consistency with the record: statements consistent with the record indicate Claimant’s 22 symptoms are more likely to reduce capacity to perform work-related activities, while 23 inconsistent statements indicate the opposite. Id. 24 First, the ALJ found that Plaintiff’s “medically determinable impairments could 25 reasonably be expected to cause the alleged symptoms.” (Doc. 11-3 at 28). Second, the 26 ALJ found Plaintiff’s “statements concerning the intensity, persistence and limiting effects 27 of these symptoms are not entirely consistent with the medical evidence and other evidence 28 in the record . . . .” (Id. at 28-29). 1 Plaintiff testified that she “does not have feeling in her hands and drops things” three 2 to five times a week. (Id.). Plaintiff also testified that she had “feelings of swelling and 3 tightening in her feet” and could only stand for two hours before needing a 15 to 30 minute 4 break. (Id.). Plaintiff further stated that she could lift up to 20 pounds prior to her shoulder 5 surgery, but was now experiencing a longer than expected recovery time. (Id.). Finally, 6 Plaintiff reported headaches, constant back and neck issues, and hip problems. (Id.). 7 The ALJ determined that Plaintiff’s statements regarding the severity of her 8 symptoms were inconsistent with medical and other evidence presented. (Id.). Regarding 9 medical evidence, the ALJ agreed that Plaintiff had been diagnosed with carpal tunnel 10 syndrome, tenosynovitis of the left radial styloid, and other mononeuropathies in the lower 11 limbs. (Id. at 28–29). However, the ALJ noted that multiple sources of medical evidence 12 indicate intact sensation in Plaintiff’s extremities. (Doc. 11-8 at 78, 92, 467, 470, 476, 13 482). Plaintiff also reported that her grip improved after surgery and “strong and equal 14 grips in May 2020 and February 2021.” (Doc. 11-3 at 29; Doc. 11-9 at 81, 104, 340). 15 Many examinations also noted no edema in Plaintiff’s feet. (Doc. 11-8 at 35, 45, 162, 510; 16 Doc. 11-9 at 99, 180, 267). Additional medical evidence indicates a lack of significant 17 neck or back pain. (Doc. 11-9 at 158, 163, 168, 175, 359). In all, the medical evidence 18 provides sufficient ground for the ALJ’s discounting of Plaintiff’s symptom testimony. 19 Additionally, the ALJ’s treatment of Plaintiff’s symptom testimony is further 20 supported by evidence that Plaintiff’s records indicated improvement with conservative 21 treatment as well as Plaintiff’s daily activities. (Doc. 11-7 at 42; Doc. 11-9 at 104). The 22 ALJ also found that Plaintiff completed daily tasks involving her hands that were 23 inconsistent with her symptom testimony. (Doc. 11-3 at 28–29, 191–92). In sum, the ALJ 24 had clear and convincing evidence from which to limit the persuasiveness of Plaintiff’s 25 symptom testimony. 26 27 28 1 B. The ALJ Did Not Err in Determining Plaintiff’s Residual Functional Capacity. 2 3 A residual functional capacity finding involves a detailed assessment of how a 4 claimant’s medical impairments affect her ability to work. In determining a claimant’s 5 residual functional capacity, the ALJ “must consider all relevant evidence in the record, 6 including, inter alia, medical records, lay evidence, and ‘the effects of [] symptoms, 7 including pain, that are reasonably attributed to a medically determinable impairment.’” 8 Robbins v. SSA, 466 F.3d 880, 883 (9th Cir. 2006) (quoting SSR 96–8p, 1996 WL 374184, 9 *5 (July 2, 1996)). The ALJ must consider the combined effect of multiple conditions, 10 including those that are not severe. See 20 C.F.R. § 404.1545(a)(2). A plaintiff’s illnesses 11 “must be considered in combination and must not be fragmentized in evaluating their 12 effects.” Lester v. Chater, 81 F.3d 821, 829 (9th Cir. 1995) (quoting Beecher v. Heckler, 13 756 F.2d 693, 694–95 (9th Cir. 1985)). 14 The ALJ did not err in determining Plaintiff’s residual functional capacity. The ALJ 15 provided a narrative description of how the evidence supports each conclusion in the 16 residual functional capacity assessment and explained any inconsistencies or ambiguities 17 in the evidence. See SSR 96-8p, 1996 WL 374184, at *7 (July 2, 1996). The ALJ provided 18 reasons for his disagreement with portions of the medical opinion evidence. The ALJ 19 incorporated those medical assessments that he found credible, including almost all of the 20 limitations that Drs. Keer and Bello assessed. (Doc. 11-3 at 30). The ALJ only drifted 21 from Drs. Keer and Bello’s assessment that Plaintiff could lift a maximum of ten pounds. 22 (Id.). Instead, the ALJ found that Plaintiff could lift up to twenty pounds because Plaintiff 23 was capable of lifting that amount prior to her shoulder surgery, from which she was 24 recovering. (Id. at 30). Despite Plaintiff’s argument to the contrary, the ALJ’s assessment 25 finds substantial support in the medical opinion evidence. Accordingly, the ALJ did not 26 err in determining Plaintiff’s Residual Functional Capacity. 27 28 1 CONCLUSION 2 Because the ALJ did not err in determining Plaintiff's Residual Functional Capacity || or in discounting Plaintiff's symptom testimony, the ALJ’s decision is affirmed. 4 5 IT IS THEREFORE ORDERED that the final decision of the Commissioner of || Social Security is affirmed. The Clerk shall enter judgment accordingly and shall terminate this case. 8 Dated this 31st day of May, 2024. ) 10 A Whacrsay Sooo) 11 Chief United states District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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