Savino v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: September 30, 2019
• Docket: 4:18-cv-00446
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Kimbo Theresa Savino, No. CV-18-0446-TUC-BGM

10 Plaintiff,

11 v. ORDER

12 Andrew M. Saul,1 Acting Commissioner of Social Security, 13 Defendant. 14 15 Currently pending before the Court is Plaintiff’s Opening Brief (Doc. 18). 16 Defendant filed his Brief (“Response”) (Doc. 19), and Plaintiff filed her Reply (Doc. 20). 17 Plaintiff brings this cause of action for review of the final decision of the Commissioner 18 for Social Security pursuant to 42 U.S.C. § 405(g). The United States Magistrate Judge 19 has received the written consent of both parties, and presides over this case pursuant to 28 20 U.S.C. § 636(c) and Rule 73, Federal Rules of Civil Procedure. 21 I. BACKGROUND 22 A. Procedural History 23 On October 3, 2014, Plaintiff protectively filed a Title XVI application for 24 Supplemental Security Income (“SSI”) alleging disability as of April 25, 2013 due to HIV 25 positive status, severe depression and/or adjustment disorder, fibromyalgia, osteoarthritis, 26 27 1 The Court takes judicial notice that Nancy A. Berryhill is no longer Acting Commissioner of the Social Security Administration (“SSA”). The Court will substitute the new Commissioner 28 of the SSA, Thomas M. Saul, as Respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. See also Fed. R. App. P. 43(c)(2). 1 peripheral neuropathy, migraines, venous insufficiency with chronic edema, Chronic 2 Obstructive Pulmonary Disease (“COPD”) with allergy-induced asthma and mild 3 emphysema, sleep apnea, and hemorrhagia. See Administrative Record (“AR”) at 15, 18, 4 165–66, 178–80, 295, 316, 320, 377. The Social Security Administration (“SSA”) denied 5 this application on February 4, 2015. Id. at 15, 165–78, 192–95. On February 20, 2015, 6 Plaintiff filed a request for reconsideration, and on March 30, 2015, SSA denied Plaintiff’s 7 application upon reconsideration. Id. at 15, 179–91, 196, 197–200. On May 13, 2015, 8 Plaintiff filed her request for hearing. Id. at 15, 204. On October 31, 2016, a hearing was 9 held before Administrative Law Judge (“ALJ”) Charles Davis and on March 7, 2017, a 10 supplemental hearing was held. Id. at 15, 74–135. On August 23, 2017, the ALJ issued an 11 unfavorable decision.2 AR at 12–34. On October 17, 2017, Plaintiff requested review of 12 the ALJ’s decision by the Appeals Council, and on June 7, 2018, review was denied. Id. 13 at 1–6, 290–94. On September 4, 2018, Plaintiff filed this cause of action. Compl. (Doc. 14 1). 15 B. Factual History 16 Plaintiff was fifty-two (52) years old at the time of the administrative hearings and 17 forty-eight (48) at the time of the alleged onset of her disability. AR at 32,74, 108, 165, 18 178–80, 247, 264, 277, 279, 282, 295, 316, 377. Plaintiff obtained a high school diploma 19 and attended two (2) years of college. Id. at 178–79, 321. Prior to her alleged disability, 20 Plaintiff worked as a resident relations director for an apartment complex, a security guard, 21 waitress, and bartender. Id. at 32, 78–84, 322, 367–72. 22 . . . 23 . . . 24 . . . 25 . . .

26 2 In his decision, the ALJ noted that Plaintiff had “previously filed an application for 27 disability insurance benefits and supplemental security income which was denied in a decision dated April 12, 2013 (Exhibit B-1A).” AR at 15. The ALJ reviewed the pertinent Acquiescence 28 Ruling and “performed a de novo review of all findings as of the claimant’s alleged onset date in the current application.” Id. at 16. 1 1. Plaintiff’s Testimony 2 a. Administrative Hearing3 3 At the initial administrative hearing, Plaintiff reviewed her work history, which 4 included a security guard, resident relations director for a condominium/apartment 5 conversion, as a waitress, and a bartender. AR at 78–84. Plaintiff testified that she lived 6 with her aging mother and brother. Id. at 84–85. Plaintiff further testified that she cooks, 7 does her own laundry, can drive, occasionally does the grocery shopping, and takes her 8 dog out in the apartment complex. Id. at 85–87. Plaintiff also reviewed her current 9 conditions, medications, and treatment. Id. at 87–97. 10 On March 7, 2017, at the supplemental administrative hearing, Plaintiff confirmed 11 that she has to keep moving, has problems with her knees, cyclical vomiting, problems 12 with her thought process, and severe migraines. Id. at 120–21. Plaintiff also confirmed 13 that she was still living with her mother and brother. AR at 122. Plaintiff testified that her 14 cyclical vomiting had improved some, and although she had an episode approximately two 15 (2) weeks prior to the hearing, it only lasted a day or day and a half. Id. at 122–23. Plaintiff 16 further testified that she had more recently been diagnosed with pulmonary hypertension 17 and was having some bladder issues. Id. at 123. Plaintiff also testified that she regularly 18 needs to change positions, because she gets stiff easily. Id. Plaintiff reported that she can 19 sit for approximately fifteen (15) to twenty (20) minutes and can stand for only five (5) to 20 ten (10) minutes. Id. at 124. Plaintiff also indicated that she can lift approximately ten 21 (10) pounds, but has been having trouble with her right hand recently. AR at 124. Plaintiff 22 testified that she drops things, has difficulty writing and typing, and has difficulty opening 23 jars and doors. Id. at 124–25. Plaintiff further testified that she has migraines 24 approximately six (6) or seven (7) days per month, and takes medication, as well as lays in 25 a dark room away from other people. Id. at 125–26. 26

27 3 The ALJ appears to have relied on the March 7, 2017, Supplemental Administrative 28 Hearing. See AR at 15. As such, the Court only provides a cursory overview of Plaintiff’s testimony at the Initial Administrative Hearing. 1 b. Administrative Forms 2 i. Function Report—Adult 3 On December 27, 2014, Plaintiff completed a Function Report—Adult in this 4 matter. AR 355–366. Plaintiff reported that she lived in an apartment with family. Id. at 5 355. Plaintiff described the limitations of her medical conditions as follows: 6 Psychologically, I have increasingly isolated myself socially, still unable to 7 cope w/exactly what the physical impairments have taken from me. Physically, I have had little to no energy, often needing naps in the middle of 8 the day. I hurt all of the time, even w/ the medication, but I don’t want to 9 take the narcotic pain relievers, because my brain is foggy enough most days. I limit my showers most days, because I dread the pain caused by the water 10 on my skin (neuralgia pain). Due to the chronic urinrary [sic] stress 11 incontinence, I often leak through my clothes even when wearing pads, which I always do. 12 If I’m around too many people, or too much noise, I get jittery, most often 13 turning to anxiety/panic attacks, even if I know/am familiar with either. I 14 struggle climbing steps, up or down, due to pain in my hips (bursitis), knees (osteoarthritis), and sometimes even my feet (plantar fasicitis [sic]). When 15 standing in one place, it is only a short time before my lower back starts 16 burnin [sic]/aching and I have to lean on something to alleviate the pressure. It’s a little better if I’m actually moving/walking, but I can only walk short 17 distances before my knees start hurting w/ my lower back and I have to stop 18 and rest. If I sit, I must consistently move & adjust my position, and even then it is hard for me to stand and walk because the stiffness sets in quickly. 19 In all 3 instances, standing in one place, moving/walking, & especially sitting too long, my ankles, feet and calves start to swell from the venous 20 insufficiency. 21 My memory has been affected & I have to set alarms to remember simple 22 things, like taking my medication. I forget words, even easy ones sometimes, 23 and recall is slow. Reading is difficult because my mind wanders, and it took me close to 2 hours just to write his page and the previous one. 24 My muscles are weak, my stomach often hurts from the gastritis, I rarely 25 sleep w/o waking up multiple times thru the night, so I am always tired. 26 Trying to get on my knees is a painful struggle, kneeling is worse & I have to use objects or a wall to try & stand again. 27 28 Id. at 355–56. Plaintiff described her usual day as having coffee while waiting for her 1 stiffness to go away, getting dressed, eating a small breakfast, going to appointments or 2 sometimes the store, sometimes getting on the computer or watching television, taking her 3 dog out for a short walk, doing needlework or sewing, eating an early dinner, taking her 4 dog out for an evening walk, and watching television while crocheting, then going to bed. 5 Id. at 357–58. Plaintiff reported that she feeds and waters her dog, takes her out twice per 6 day, bathes her in the sink, and plays with her. Id. at 357, 360. Plaintiff also reported that 7 her mother sometimes feeds and waters her dog or plays with her. AR at 357. 8 Plaintiff indicated that prior to her illness she was able to do “everything” and was 9 very social and active, including reading and writing books, working around the house and 10 outside of the home, and spending time with her children and grandchildren. Id. at 357– 11 58. Plaintiff reported that she now has sleep apnea due to the weight gain resultant from 12 her medications and emotional distress. Id. at 357. Plaintiff further reported that regarding 13 her personal care, dressing is difficult because of her balance issues, showers are often 14 painful, her hair usually stays in a braid, and she has difficulty sitting and standing to use 15 the toilet. Id. at 359. Plaintiff noted that sometimes her mother reminds her to take care 16 of her personal needs and to take her medication. Id. Plaintiff also reported that she tries 17 to eat healthy and cooks daily, with preparation time up to an hour. AR at 359. Plaintiff 18 reported that she does laundry at the laundromat and washes dishes, but has difficulty with 19 dusting and bathroom cleaning because she is sensitive to cleaning products and allergens. 20 Id. at 361. Plaintiff indicated that her mother initiates tasks because of Plaintiff’s lack of 21 energy. Id. at 360. 22 Plaintiff reported that she can drive, but sometimes is unable to go out alone due to 23 migraines or her medications. Id. Plaintiff further reported that she is able to shop on the 24 computer, and sometimes for groceries in the store. Id. Plaintiff also reported that she can 25 pay bills, count change, handle a savings account, and use a checkbook or money orders. 26 AR at 362. Plaintiff noted that she has to be careful with money since the onset of her 27 conditions because she is more forgetful now. Id. Plaintiff listed her pre-illness hobbies 28 to include reading, writing, television, sewing, crocheting or knitting, and being on the 1 computer. Id. Plaintiff reported that she does not read anymore, does a little writing, 2 watches television daily, rarely sews, crochets when her hands do not hurt, and cooks most 3 of the time. Id. Plaintiff described spending time watching television with her mother, 4 texting with her children and other family members, and talking on the telephone or with 5 people that she encounters while walking her dog. Id. 6 Plaintiff indicated that she does not go out on a regular basis, and when she does 7 requires reminders and someone to accompany her. AR at 362. Plaintiff described that 8 since her conditions began her social contact has dropped and she is depressed and 9 reserved. Id. at 363. Plaintiff reported that her conditions affect her ability to lift, squat, 10 bend, stand, reach, walk, sit, kneel, talk, climb stairs, see, remember, complete tasks, 11 concentrate, and understand. Id. Plaintiff further reported being able to walk between one- 12 half and one block before needing rest. Id. Plaintiff also reported that she can pay attention 13 a maximum of ten (10) minutes at a time. Id. Plaintiff indicated that she can follow written 14 and spoken instructions, but sometimes needs to either reread or have the instructions 15 repeated. AR at 363. 16 Plaintiff noted that she is able to get along with authority figures and has never been 17 fired or laid off because she could not get along with people. Id. at 364. Plaintiff further 18 reported that she does not handle stress well, and needs time to adjust to changes in routine 19 due to anxiety, panic attacks, and fear of rejection. Id. Plaintiff also reported that she uses 20 a cane occasionally and glasses for reading. Id. 21 ii. Work History Report 22 Plaintiff also completed a Work History Report. AR at 367–74. Plaintiff listed her 23 prior work as a resident relations director at an apartment complex, security officer, 24 waitress, and bartender.4 Id. at 367. Plaintiff described the position of resident relations 25 director as addressing resident issues and working with maintenance to triage work orders. 26 Id. at 368. Plaintiff reported that while in this position, she used machines, tools, or 27 4 Plaintiff also listed Director of Continuing Education and Business Administrator/Human 28 Resources Director; however, these were determined by the ALJ to be too remote in time. See AR 127. 1 equipment; technical knowledge or skills; and wrote, completed reports, or performed 2 similar duties; she wrote, typed, or handled small objects for between four (4) and six (6) 3 hours per day; sat for three (3) to four (4) hours; walked for between two (2) and three (3) 4 hours; stood for between one (1) and two (2) hours; climbed, stooped, knelt, crouched, 5 handled, grabbed or grasped large objects for an hour or less per day; and never crawled. 6 Id. Plaintiff further reported that she frequently lifted twenty (20) pounds, and the heaviest 7 weight she lifted was fifty (50) pounds. Id. Plaintiff indicated that she supervised between 8 eight (8) and ten (10) people as a lead worker for between one (1) and two (2) hours per 9 day. AR at 368. 10 Plaintiff described the position of security officer as involving checking credentials 11 and operating the gate access control, as well as driving a golf cart around the community 12 and climbing stairs in the apartment buildings to ensure the security and safety of residents, 13 guests, and personnel. Id. at 369. Plaintiff reported using machines, tools, or equipment; 14 technical knowledge or skills; and writing, completing reports, or performing similar 15 duties. Id. Plaintiff further reported that the position required her to stand for between six 16 (6) and eight (8) hours; write, type, or handle small objects for between three (3) and four 17 (4) hours; walk and reach for between two (2) and three (3) hours; climbed for between 18 one (1) and two (2) hours; sit or stoop for one (1) hour or less; and never kneeled, crouched, 19 crawled, or handled, grabbed, grasped large objects. Id. Plaintiff noted that she did not 20 frequently lift anything, and the heaviest weight she lifted was less than ten (10) pounds. 21 Id. Plaintiff indicated that she supervised four (4) to six (6) people for between two (2) 22 and three (3) hours per day. AR at 369. 23 Plaintiff described her position of waitress and bartender as taking orders from 24 customers, submitting those orders, and delivering orders to customers, as well as being on 25 standby for customer needs, cleaning, and restocking. Id. at 370. Plaintiff noted that in 26 this position she used machines, tools, or equipment; technical knowledge or skills; and 27 wrote, completed reports, or performed similar duties. Id. Plaintiff reported walking, 28 standing, reaching, and writing, typing, or handling small objects for between six (6) and 1 eight (8) hours per day; climbing and stooping for between one (1) and two (2) hours per 2 day; crouching, and crawling for between one (1) hour or less; and never sitting, kneeling, 3 or crawling. Id. Plaintiff indicated that she frequently lifted ten (10) pounds, and that fifty 4 (50) pounds was the heaviest weight that she lifted. Id. Plaintiff further reported that she 5 supervised between one (1) and two (2) people at a time. AR at 370. 6 2. Medical Expert Edward Jasinski’s Testimony 7 Mr. Edward J. Jasinski, Ph.D. testified as a medical expert at the supplemental 8 administrative hearing. AR at 15, 112–20. Dr. Jasinski addressed mental health treatment 9 records that he reviewed from the alleged date of onset forward. Id. at 113. Dr. Jasinski 10 noted that Plaintiff’s diagnoses changed over the course of treatment. Id. at 113–14. Dr. 11 Jasinski also testified that he reviewed two mental health evaluations, one from December 12 2016 and one dated February 17, 2017. Id. at 113. Dr. Jasinski opined that regarding the 13 B Criteria, Plaintiff would have mild limitation in understanding, remembering, and 14 applying information; interacting with others; and concentration, persistence, and 15 maintaining pace. Id. at 114. Dr. Jasinski further opined that Plaintiff would have 16 moderate limitations on her ability to adapt and manage oneself. AR at 114. Dr. Jasinski 17 confirmed that he concluded that Plaintiff’s limitations did not meet or equal a listing. Id. 18 Dr. Jasinski also opined that the limitations he listed would not be significant 19 enough to impact work performance. Id. Dr. Jasinski explained that his finding that 20 Plaintiff was moderately limited in her ability to adapt and manage herself, specifically 21 addressed the consultative examiner’s statement that Plaintiff’s impairments may be more 22 significant under greater demand. Id. at 116–17. Plaintiff’s counsel asked about an 23 individual that “had a hard time responding to stress in the workplace, would that limit 24 their ability to function in a high-stress environment?” Id. at 117. Dr. Jasinski confirmed 25 that it might be difficult for such an individual. AR at 117. Plaintiff’s counsel also asked, 26 “If this individual had difficulty adapting to a high-stress environment, would she need to 27 be in an environment with more simple instructions, or you know, less social contact?” Id. 28 at 118. Dr. Jasinski testified that he did not see any issues, noting that the IQ testing did 1 not indicate any significant issues with cognitive functioning which is why he placed a 2 mild limitation in that area. Id. Dr. Jasinski further pointed out that even if Plaintiff had a 3 higher level of IQ functioning previously and subjectively felt a cognitive loss, objectively, 4 her mind is still working well within the normal range. Id. at 118–19. 5 3. Vocational Expert Cheryl Chandler’s Testimony 6 Ms. Cheryl R. Chandler testified as a vocational expert at the supplemental 7 administrative hearing. AR at 15, 126–33. Ms. Chandler classified Plaintiff’s past work 8 as waitress, bartender, security guard, and manager, apartment house.5 Id. at 127. Ms. 9 Chandler described Plaintiff’s past relevant work as a waitress, Dictionary of Occupational 10 Titles (“DOT”) number 311.477-018, with a Specific Vocational Preparation (“SVP”) of 11 3—semiskilled, and an exertional level of light. Id. 127–28. Ms. Chandler further 12 described Plaintiff’s past work of bartender, DOT number 312.474-010, an SVO of 3, and 13 a light exertional level. Id. at 128. Ms. Chandler also described the position of security 14 guard, DOT number 327.667-034, with an SVP of 3, and a light exertional level. Id. 15 Finally, Ms. Chandler described the position of manager, apartment house, DOT 186.167- 16 018, with an SVP of 5—skilled, and a light exertional level. AR at 128. 17 The ALJ asked Ms. Chandler to consider a hypothetical individual of the claimant’s 18 age and education, with the same work history, and the residual functional capacity to 19 perform a range of work, including can lift and carry up to twenty (20) pounds occasionally 20 and ten (10) pounds frequently, stand and walk up to six hours of an eight (8) hour workday, 21 sit for up to six hours of an eight (8) hour workday, but requires the ability to alternate 22 between sitting and standing approximately every thirty (30) minutes, the occasional 23 climbing of ramps and stairs, occasional balance, stoop, kneel, crouch, and crawl, no 24 ladders, ropes, or scaffolds, no concentrated exposure to pulmonary irritants, fumes, odors, 25 dust, gases, et cetera, no workplace hazards, and not production quotas or an assembly line 26 pace. Id. at 128–29. Ms. Chandler opined that the waitress, bartender, and security guard 27

28 5 Ms. Chandler considered manager, apartment house as the closest listing to Plaintiff’s past work as a residential relations director. AR at 127. 1 would not exist for such an individual because of the sit/stand option. Id. at 129. Ms. 2 Chandler opined that she would expect the apartment management to have more flexibility 3 with regard to the sit/stand, as well as meet the other requirements. Id. Ms. Chandler 4 testified that such an individual could also perform the position of unskilled cashier, DOT 5 number 211.462-010, with an SVP of 2, and light exertional level. Id. at 129–30. Because 6 of the sit/stand requirement, Ms. Chandler eroded the availability numbers by ninety (90) 7 percent and testified that there would be 94,000 jobs available in the national economy. 8 AR at 130, 132. Ms. Chandler also suggested the position of counter clerk, DOT number 9 249.366-010, with an SVP of 2, and light exertional level. Id. at 130. Ms. Chandler again 10 eroded the jobs available, which left approximately 10,000 jobs available in the national 11 economy. Id. at 130, 132. Ms. Chandler confirmed that her testimony was consistent with 12 the DOT or otherwise based on her experience and observation. Id. 13 Plaintiff’s counsel asked about the demands placed on an individual in the apartment 14 manager’s job, specifically regarding the level of stress. Id. Ms. Chandler testified that in 15 her experience that as a resident manager, you may get middle of the night calls, but if the 16 job is not as a resident manager, the position is routine. AR at 131. Ms. Chandler further 17 noted that based on her review of the description provided in Plaintiff’s work history it was 18 unclear whether it was a resident manager position or a standard eight (8) hour per day, 19 forty (40) hour work week position. Id. Plaintiff’s counsel also asked about the 20 employability of a person who had to miss five (5) to six (6) days per week. Id. Ms. 21 Chandler opined that such a person would not be able to maintain competitive employment. 22 Id. at 131–32. Upon further questioning by Plaintiff’s counsel, Ms. Chandler opined that 23 a person who had manipulative limitation with their dominant hand, including occasional 24 reaching, grasping, fingering, handling, or feeling, would not be able to maintain the 25 employment that she had previously suggested. Id. at 132. 26 4. Lay Witness Testimony 27 On December 27, 2014, Barbara Leipart completed a Function Report—Adult in 28 this matter. AR 344–54. Ms. Leipart reported that Plaintiff lived in an apartment with 1 family. Id. at 344. Ms. Leipart described the limitations of Plaintiff’s medical conditions 2 as follows: 3 Isolated self socially, unable to cope physically. No enengey [sic] & need to 4 take naps often during the day. Hurting all the time even when taking meds. Brain is foggy a lot. Doesn’t shower often because of pain from water. Have 5 urinary incontinence often changing pad & clothes when coughing. Have 6 panic attacks around crowded places especially noise. Trouble climbing stairs due to pain in hips, knees & feet. Back hurts if standing a short time. 7 Have to lean on something to take pressure off, or have to walk to help pain 8 a little. Walk only short distances. Can’t sit too long & have to adjust position often. Stiffness sets in when she I stands [sic]. Ankles & feet swell. 9 Set alarm to take meds or I forgets [sic]. Memory loss w/ simple words. Weak muscles, stomach hurts from gastritis. Sleep disrupted often so always 10 tired. Can’t get on knees, because it’s painful & hard to stand back up w/out 11 using something to hold on to. 12 Id. at 344–45. Ms. Leipart described Plaintiff’s usual day as having coffee while waiting 13 for her stiffness to go away, getting dressed, eating a small breakfast, going to appointments 14 or sometimes the store, sometimes getting on the computer or watching television, taking 15 her dog out for a short walk, doing needlework or sewing, eating an early dinner, taking 16 her dog out for an evening walk, and watching television while crocheting, then going to 17 bed. Id. at 346. Ms. Leipart reported that Plaintiff feeds and waters her dog, takes her out 18 twice per day, bathes her in the sink, and plays with her. Id. at 346, 348. Ms. Leipart also 19 reported that Plaintiff’s mother sometimes feeds and waters her dog or plays with her. AR 20 at 346. 21 Ms. Leipart indicated that prior to Plaintiff’s illness she was able to do “everything” 22 and was very social and active, including reading and writing books, working around the 23 house, and outside of the home. Id. Ms. Leipart reported that Plaintiff now has sleep apnea 24 due to the weight gain resultant from her medications and inactivity. Id. Ms. Leipart 25 further reported that regarding Plaintiff’s personal care, dressing is difficult because of her 26 balance issues, showers are often painful, her hair usually stays in a braid, and she has 27 difficulty sitting and standing to use the toilet. Id. at 347. Ms. Leipart noted that sometimes 28 Plaintiff’s mother reminds her to take care of her personal needs and to take her medication. 1 Id. Ms. Leipart also reported that Plaintiff tries to eat healthy and cooks daily, although 2 the preparation time is slow. AR at 347. Ms. Leipart reported that Plaintiff does laundry 3 at the laundromat and washes dishes, but has difficulty with dusting and bathroom cleaning 4 because she is sensitive to cleaning products and allergens. Id. at 349. Ms. Leipart 5 indicated that Plaintiff’s mother initiates tasks because of Plaintiff’s lack of energy. Id. at 6 348. 7 Ms. Leipart reported that Plaintiff can drive, but sometimes is unable to go out alone 8 due to migraines or her medications. Id. Ms. Leipart further reported that Plaintiff is able 9 to shop on the computer, and sometimes for groceries in the store. Id. Ms. Leipart also 10 reported that Plaintiff can pay bills, count change, handle a savings account, and use a 11 checkbook or money orders. AR at 350. Ms. Leipart noted that Plaintiff has to be careful 12 with money since the onset of her conditions because she is more forgetful now. Id. Ms. 13 Leipart listed Plaintiff’s pre-illness hobbies to include reading, writing, television, sewing, 14 crocheting or knitting, and being on the computer. Id. Ms. Leipart reported that Plaintiff 15 does not read anymore, does a little writing, watches television daily, rarely sews, crochets 16 when her hands do not hurt, and cooks most of the time. Id. Ms. Leipart described Plaintiff 17 spending time watching television with her mother, texting with her children and other 18 family members, and talking on the telephone or with people that she encounters while 19 walking her dog. Id. 20 Ms. Leipart indicated that Plaintiff does not go out on a regular basis, and when she 21 does requires reminders and someone to accompany her. AR at 350. Ms. Leipart described 22 that since Plaintiff’s conditions began her social contact has dropped and she is depressed 23 and reserved. Id. at 351. Ms. Leipart reported that Plaintiff’s conditions affect her ability 24 to lift, squat, bend, stand, reach, walk, sit, kneel, talk, climb stairs, see, remember, complete 25 tasks, concentrate, and understand. Id. Ms. Leipart further reported that Plaintiff can walk 26 between one-half and one block before needing rest. Id. Ms. Leipart also reported that 27 Plaintiff can pay attention a maximum of ten (10) minutes at a time. Id. Ms. Leipart 28 indicated that Plaintiff can follow written and spoken instructions, but needs to either 1 reread or have the instructions repeated. AR at 351. 2 Ms. Leipart noted that Plaintiff is able to get along with authority figures and has 3 never been fired or laid off because she could not get along with people. Id. at 352. Ms. 4 Leipart further reported that Plaintiff does not handle stress well, and needs time to adjust 5 to changes in routine due to anxiety, panic attacks, and fear of rejection. Id. Ms. Leipart 6 also reported that Plaintiff uses a cane occasionally and glasses for reading. Id. 7 5. Plaintiff’s Medical Records6 8 On January 24, 2014, Plaintiff was seen by Leonard Cosmo, M.D. regarding sleep 9 apnea-obstruction, daytime hypersomnolence, insomnia, and snoring. AR at 535–39. 10 Plaintiff denied chest congestion, cough, and wheezing. Id. at 536. Treatment records 11 indicate that Plaintiff had benign percussion and breath sounds were clear bilaterally. Id. 12 at 537. Plaintiff underwent a breathing capacity test. Id. at 538, 542. Test results only 13 indicated pre-bronchodilator results. Id. at 542. Test records further indicated that the test 14 quality was questionable per American Thoracic Society (“ATS”) and European 15 Respiratory Society (“ERS”) guidelines. AR at 542. Upon review of Plaintiff’s breathing 16 capacity test, chest radiographs, and electrocardiogram results, Dr. Cosmo diagnosed 17 unspecified asthma, with exacerbation. Id. at 538. 18 Treatment records consistently indicated that Plaintiff’s COPD was well controlled 19 with combivent/singular. Id. at 589, 613, 631. 20 21 II. STANDARD OF REVIEW 22 The factual findings of the Commissioner shall be conclusive so long as they are 23 based upon substantial evidence and there is no legal error. 42 U.S.C. §§ 405(g), 24 1383(c)(3); Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). This Court may 25 “set aside the Commissioner’s denial of disability insurance benefits when the ALJ’s 26

27 6 The Court has reviewed the entirety of Plaintiff’s medical records; however, Plaintiff’s arguments regarding the medical records are limited to Plaintiff’s COPD. See Opening Br. (Doc. 28 18). As such, the Court’s summary is limited to records relevant to that issue from her alleged onset date forward. 1 findings are based on legal error or are not supported by substantial evidence in the record 2 as a whole.” Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted); see 3 also Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). 4 Substantial evidence is “‘more than a mere scintilla[,] but not necessarily a 5 preponderance.’” Tommasetti, 533 F.3d at 1038 (quoting Connett v. Barnhart, 340 F.3d 6 871, 873 (9th Cir. 2003)); see also Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). 7 Further, substantial evidence is “such relevant evidence as a reasonable mind might accept 8 as adequate to support a conclusion.” Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 9 Where “the evidence can support either outcome, the court may not substitute its judgment 10 for that of the ALJ.” Tackett, 180 F.3d at 1098 (citing Matney v. Sullivan, 981 F.2d 1016, 11 1019 (9th Cir. 1992)); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007). 12 Moreover, the court may not focus on an isolated piece of supporting evidence, rather it 13 must consider the entirety of the record weighing both evidence that supports as well as 14 that which detracts from the Secretary’s conclusion. Tackett, 180 F.3d at 1098 (citations 15 omitted). 16 17 III. ANALYSIS 18 A. The Five-Step Evaluation 19 The Commissioner follows a five-step sequential evaluation process to assess 20 whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(4). This process is defined as 21 follows: Step one asks is the claimant “doing substantial gainful activity[?]” If yes, the 22 claimant is not disabled; step two considers if the claimant has a “severe medically 23 determinable physical or mental impairment[.]” If not, the claimant is not disabled; step 24 three determines whether the claimant’s impairments or combination thereof meet or equal 25 an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App.1. If not, the claimant is not 26 disabled; step four considers the claimant’s residual functional capacity and past relevant 27 work. If claimant can still do past relevant work, then he or she is not disabled; step five 28 assesses the claimant’s residual functional capacity, age, education, and work experience. 1 If it is determined that the claimant can make an adjust6ment to other work, then he or she 2 is not disabled. 20 C.F.R. § 404.1520(a)(4)(i)-(v). 3 In the instant case, the ALJ found that Plaintiff had not engaged in substantial 4 gainful activity since her alleged onset date of October 3, 2014. AR at 18. At step two of 5 the sequential evaluation, the ALJ found that “[t]he claimant has the following severe 6 impairments: asymptomatic human immunodeficiency virus (HIV) positive, obesity, 7 asthma, chronic obstructive pulmonary disease (COPD), migraine headaches, lumbar 8 degenerative disc disease, major depressive disorder, anxiety disorder, urinary 9 incontinence, degenerative joint disease of the knees and feet, fibromyalgia, sleep apnea 10 (20 CFR 416.920(c)).” Id. The ALJ further indicated that “[t]he record also includes 11 evidence of two non-severe impairments: history of uterine bleeding and venous 12 insufficiency[.]” Id. The ALJ also found that “[t]he claimant does not have an impairment 13 or combination of impairments that meets or medically equals the severity of one of the 14 listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 15 416.925 and 416.926).” Id. at 19. Prior to step four and “[a]fter careful consideration of 16 the entire record,” the ALJ determined that “the claimant has the residual functional 17 capacity to perform light work as defined in 20 CFR 416.967(b) except that the claimant 18 can lift and carry 20 pounds occasionally, 10 pounds frequently, can sit for 6 hours, stand 19 and walk for 6 hours in an 8 hour workday, requires the ability to alternate between sitting 20 and standing every 30 minutes[;] . . . can occasionally climb ramps and stairs, balance, 21 stoop, kneel, crouch and crawl, but never climb ladders, ropes or scaffolds, cannot tolerate 22 concentrated exposure to pulmonary irritants, fumes, dusts, or gases, and no workplace 23 hazards[;] . . . [and] is further limited to work that does not require satisfaction of 24 production quotas or an assembly line pace.” Id. at 23. At step four, the ALJ found that 25 “[t]he claimant is capable of performing past relevant work as an apartment manager (DOT 26 186.167-018)[,] [as] [t]his work does not require the performance of work-related activities 27 precluded by the claimant’s residual functional capacity (20 CFR 416.965).” AR at 32. 28 Accordingly, the ALJ determined that Plaintiff was not disabled. Id. at 33. 1 Plaintiff asserts that the ALJ erred by failing to further develop the record with 2 respect to whether Listing 3.02 was met or medically equaled. See Opening Br. (Doc. 18) 3 at 7–8. Plaintiff further asserts that the ALJ erred in his interpretation of the medical 4 expert’s testimony when formulating the RFC. See id. at 8–10. 5 B. Listing 3.02 6 Plaintiff argues that the ALJ erred by failing to develop the record further in light 7 of Plaintiff’s breathing capacity test. Opening Br. (Doc. 18) at 7–8. 8 Listing 3.02A requires that for an individual sixty-eight (68) inches tall (Plaintiff’s 9 height), the FEV1 must be less than or equal to 1.45L. 20 C.F.R. § 404, Subpart P, App. 1 10 at § 3.02A and Table I. The regulations further explain that “[d]uring testing, if your FEV1 11 is less than 70 percent of your predicted normal value, we require repeat spirometry after 12 inhalation of a bronchodilator to evaluate your respiratory disorder under these listings, 13 unless it is medically contraindicated.” 20 C.F.R. § 404, Subpart P, App. 1 at § 14 3.00(E)(2)(b). Moreover, a claimant’s “forced expiratory maneuvers must be satisfactory.” 15 Id. at § 3.00(E)(2)(c). 16 Plaintiff argues that because the ALJ noted that Plaintiff’s test quality was 17 questionable per ATS/ERS guidelines, he had a responsibility to develop the record. 18 Opening Br. (Doc. 18) at 7. As an initial matter, the claimant bears the burden to show 19 medical evidence consisting of signs, symptoms, and laboratory findings to establish a 20 medically determinable physical or mental impairment. Ukolov v. Barnhart, 420 F.3d 21 1002, 1004-05 (9th Cir. 2005); 20 C.F.R. §§ 404.1512, 404.1520, 416.912, 416.920; see 22 also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). Moreover, the Listing 3.02 23 requires “medical evidence to document and assess the severity of your respiratory 24 disorder.” 20 C.F.R. § 404, Subpart P, App. 1 at § 3.00(D)(1) (emphasis in original). 25 Here, the ALJ carefully reviewed Plaintiff’s medical record and found that her 26 COPD was well-controlled with medication and “numerous physical exams have 27 documented that she has clear lungs with no wheezing or signs of respiratory distress[,]” 28 despite continuing to smoke cigarettes regularly. AR at 27. Plaintiff’s arguments that the 1 ALJ failed to develop the record are unavailing and improperly attempt to shift his burden 2 to the ALJ. “An ALJ’s duty to develop the record further is triggered only when there is 3 ambiguous evidence or when the record is inadequate to allow for proper evaluation of the 4 evidence. Mayes v. Massanari, 276 F.3d 453, 459–60 (9th Cir. 2001) (citations omitted). 5 Plaintiff’s medical records do not demonstrate any ongoing treatment for her COPD 6 beyond notations that it is well-controlled with medication. As such, “[t]he record before 7 the ALJ was neither ambiguous nor inadequate to allow for proper evaluation of the 8 evidence.” Id. at 460. The Court finds that the ALJ did not err and his factual findings 9 were based on substantial evidence, and are therefore conclusive. See 42 U.S.C. §§ 405(g), 10 1383(c)(3); Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). 11 C. Development of the RFC 12 Plaintiff asserts that the ALJ erred by misstating medical examiner’s opinion 13 testimony. Pl.’s Opening Br. (Doc. 18) at 8–10. The ALJ stated that Edward Jasinski, 14 Ph.D. “opined that the claimant was limited to work that does not require satisfaction of 15 production quotas or an assembly line pace.” AR at 29. Plaintiff is correct that Dr. 16 Jasinski’s opinion did not include such a limitation. 17 Dr. Jasinski opined that regarding the B Criteria, Plaintiff would have mild 18 limitation in understanding, remembering, and applying information; interacting with 19 others; and concentration, persistence, and maintaining pace. Id. at 114. Dr. Jasinski 20 further opined that Plaintiff would have moderate limitations on her ability to adapt and 21 manage oneself. Id. at 114. Dr. Jasinski confirmed that he concluded that Plaintiff’s 22 limitations did not meet or equal a listing. Id. 23 Dr. Jasinski also opined that the limitations he listed would not be significant 24 enough to impact work performance. Id. Dr. Jasinski explained that his finding that 25 Plaintiff was moderately limited in her ability to adapt and manage herself, specifically 26 addressed the consultative examiner’s statement that Plaintiff’s impairments may be more 27 significant under greater demand. AR at 116–17. Plaintiff’s counsel asked about an 28 individual that “had a hard time responding to stress in the workplace, would that limit 1 their ability to function in a high-stress environment?” Id. at 117. Dr. Jasinski confirmed 2 that it might be difficult for such an individual. Id. Plaintiff’s counsel also asked, “If this 3 individual had difficulty adapting to a high-stress environment, would she need to be in an 4 environment with more simple instructions, or you know, less social contact?” Id. at 118. 5 Dr. Jasinski testified that he did not see any issues, noting that the IQ testing did not indicate 6 any significant issues with cognitive functioning which is why he placed a mild limitation 7 in that area. Id. 8 In developing the RFC, the ALJ translated Dr. Jasinski’s moderate limitation 9 regarding Plaintiff’s ability to adapt and manage herself into not working with the pace 10 demands of production quotas or assembly line jobs. AR at 128–29. Plaintiff argues that 11 “it is clear from the medical expert’s statements taken as a whole that a need for a low- 12 stress environment is indicated by the record, . . . [and] the ALJ’s RFC does not adequately 13 encompass a low-stress environment because workplace stress, as a function of a limitation 14 in adaptation rather than persistence and pace, comes from far more factors than simply 15 production quotas or assembly line pace.” Reply (Doc. 20) at 3. Contrary to Plaintiff’s 16 argument, the ALJ’s RFC precluding jobs that have a pace like that required by production 17 quotas or assembly line jobs is a proper translation of Dr. Jasinski’s moderate limitation. 18 See, e.g., Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173–76 (9th Cir. 2008). As such, 19 the Court finds the ALJ’s misquoting of Dr. Jasinski’s opinion harmless. 20 . . . 21 . . . 22 . . . 23 . . . 24 . . . 25 . . . 26 . . . 27 . . . 28 . . . IV. CONCLUSION 2 In light of the foregoing, the Court finds that the Commissioner’s findings are based || upon substantial evidence and without legal error. Therefore, the Court affirms the ALJ’s 4|| decision. 5 Accordingly, IT IS HEREBY ORDERED that: 6 1) Plaintiff's Opening Brief (Doc. 18) is DENIED; 7 2) The Commissioner’s decision is AFFIRMED; and 8 3) The Clerk of the Court shall enter judgment, and close its file in this matter. 9 10 Dated this 30th day of September, 2019. 11 ( LA Meu Q0.0 12 ‘United States Magistrate Tudee 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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