Smith v. Commissioner of Social Security

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 GLORIA S., 8 Plaintiff, Case No. C20-86 RSM 9 v. ORDER AFFIRMING THE 10 COMMISSIONER’S FINAL COMMISSIONER OF SOCIAL SECURITY, DECISION AND DISMISSING THE 11 CASE WITH PREJUDICE Defendant. 12

13 Plaintiff appeals denial of her applications for Supplemental Security Income and 14 Disability Insurance Benefits. Plaintiff contends the ALJ erred by rejecting her testimony, and 15 the Court should consider a medical opinion issued after the ALJ’s decision. Dkt. 10. As 16 discussed below, the Court AFFIRMS the Commissioner’s final decision and DISMISSES the 17 case with prejudice. 18 BACKGROUND 19 Plaintiff is 59 years old, has a limited education, and has worked as a child monitor, retail 20 salesperson, and money counter. Dkt. 8, Admin. Transcript (Tr.) 35-36. Plaintiff alleges 21 disability as of January 2016. Tr. 29. Based on severe impairments of left tennis elbow 22 (degenerative joint disease), leg numbness, and obesity, the ALJ found Plaintiff had the residual 23 ORDER AFFIRMING THE COMMISSIONER’S FINAL DECISION AND 1 functional capacity (RFC) to perform medium work, frequently handling with her left hand, but 2 would be off task 10% of the day. Tr. 32, 33. The ALJ found Plaintiff was not disabled because 3 she could perform her past work as a child monitor or retail salesperson or, in the alternative, 4 could perform work available in significant numbers in the national economy. Tr. 35-38. The 5 Appeals Council declined to consider a newly-submitted opinion by Plaintiff’s treating provider, 6 Annette Lund, ARNP, and denied Plaintiff’s request for review. Tr. 1-3, 13-15. 7 DISCUSSION 8 This Court may set aside the Commissioner’s denial of Social Security benefits only if 9 the ALJ’s decision is based on legal error or not supported by substantial evidence in the record 10 as a whole. Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017).

11 A. Plaintiff’s Testimony 12 In a June 2018 hearing before the ALJ, Plaintiff testified to leg and arm pain and 13 numbness, and the need to recline and elevate her feet for about half of an eight-hour workday. 14 Tr. 69-70, 72-73. She works about one and a half hours per day and must take pain medication 15 to do so. Tr. 70. The ALJ discounted Plaintiff’s testimony based on improvement with 16 conservative treatment and “mostly unremarkable” physical findings. Tr. 34-35. Plaintiff fails 17 to challenge the reason of improvement with conservative treatment, which is a clear and 18 convincing reason to discount her testimony. See Tommasetti v. Astrue, 533 F.3d 1035, 1039-40 19 (9th Cir. 2008) (ALJ may discount claimant testimony when the record shows claimant 20 “responded favorably to conservative treatment”). The Court concludes the ALJ did not err by

21 discounting Plaintiff’s testimony. 22 B. RFC Determination 23 Plaintiff contends the ALJ erred by determining her RFC without support from any ORDER AFFIRMING THE COMMISSIONER’S FINAL DECISION AND 1 medical opinion. Dkt. 10 at 4-5. The only medical opinion in the record before the ALJ was 2 from state agency nonexamining physician Greg Saue, M.D. Tr. 124, 131. In May 2017 Dr. 3 Saue opined Plaintiff had only one impairment, gout (causing leg pain and numbness), which 4 was not severe. Tr. 130-31. The ALJ gave this opinion “little weight,” finding Plaintiff did have 5 severe impairments. Tr. 35, 32. 6 An ALJ must assess RFC “based on all the relevant evidence in [the] case record,” but 7 there is no requirement to base the RFC on one or more medical opinions. 20 C.F.R. 8 §§ 404.1545(a)(1), 416.945(a)(1). Here, the ALJ explained how the record supported the RFC 9 determination. Plaintiff was limited to medium exertion work based on her reports of leg and 10 arm pain, even though the ALJ discounted Plaintiff’s testimony as to symptom severity because

11 medication reduced the pain. Tr. 35, 34. The ALJ explained Plaintiff “may be off task up to ten 12 percent of the workday due to pain.” Tr. 35. And the ALJ limited Plaintiff’s “left handling” 13 based on her testimony of left arm pain and weakness, but only to “frequently” because 14 medication improved the pain. Tr. 35, 34 (citing Tr. 451). The ALJ’s RFC determination is 15 supported by the medical evidence and Plaintiff shows no error in the ALJ’s reasoning. 16 C. New Evidence 17 In a Request for Medical Opinion form dated January 2019, after the ALJ’s October 2018 18 decision, Plaintiff’s treating provider, Ms. Lund, opined Plaintiff could stand/walk and sit upright 19 less than two hours each per day and would need to recline less than two hours per day. Tr. 14. 20 She could not use her arms at all for reaching, holding, handling, or manipulating, and would

21 miss at least three days of work per month. Tr. 14-15. Plaintiff contends the Court should 22 remand the case for reconsideration of this new evidence. Dkt. 10 at 6. While the Court must 23 consider evidence first submitted to the Appeals Council, such evidence is only material “if there ORDER AFFIRMING THE COMMISSIONER’S FINAL DECISION AND 1 is a ‘reasonabl[e] possibility that the new evidence would have changed the outcome of the ... 2 determination.’” Bruton v. Massanari, 268 F.3d 824, 827 (9th Cir. 2001) (alterations and 3 omission in original) (quoting Booz v. Sec’y of Health & Human Servs., 734 F.2d 1378, 1380 4 (9th Cir. 1984)). Here, the Court concludes the newly submitted evidence is not material. Ms. 5 Lund’s opinion does not even rise to the level of significant probative evidence that an ALJ must 6 address. See Vincent v. Heckler, 739 F.2d 1393, 1394–95 (9th Cir. 1984) (An ALJ “need not 7 discuss all evidence presented to her. Rather, she must explain why ‘significant probative 8 evidence has been rejected.’” (alteration in original) (quoting Cotter v. Harris, 642 F.2d 700, 706 9 (3d Cir. 1981)). 10 The ALJ was only required to address limitations arising from medically determinable

11 impairments, which must be “shown by medically acceptable clinical and laboratory diagnostic 12 techniques.” 20 C.F.R. §§ 404.1521, 416.921. But when asked if the opined limitations were 13 based on any “clinically demonstrated impairments,” Ms. Lund did not circle “Yes” or “No” and 14 instead wrote “Needs EMG Testing[;] Needs a Physical Therapy Assessment.” Tr. 15. 15 Moreover, Ms. Lund’s opinions were internally inconsistent, opining during an eight-hour 16 workday Plaintiff could stand/walk two hours and sit less than two hours and would need to 17 recline for less than two hours, leaving at least two hours per day completely undefined. Tr. 14. 18 It would have been impossible for the ALJ to accept Ms. Lund’s entire opinion. 19 Because there is no reasonable possibility that Ms. Lund’s opinions would have changed 20 the nondisability determination, they were not material. The Court concludes remand is not

21 required. 22 23 ORDER AFFIRMING THE COMMISSIONER’S FINAL DECISION AND 1 CONCLUSION 2 For the foregoing reasons, the Commissioner’s final decision is AFFIRMED and this 3 case is DISMISSED with prejudice. 4 DATED this 14th day of August, 2020.

5 A 6 7 RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE 8

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 ORDER AFFIRMING THE COMMISSIONER’S FINAL DECISION AND