Wilkinson v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: December 6, 2023
• Docket: 2:23-cv-00342
• Status: Unknown

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 LINDA W., 8 Plaintiff, Case No. C23-0342 RSM 9 v. ORDER AFFIRMING AND 10 DISMISSING THE CASE COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. 12

13 Plaintiff seeks review of the denial of her applications for Disability Insurance Benefits 14 (DIB). Plaintiff contends the ALJ: (1) erred at step two, (2) improperly evaluated her symptom 15 testimony, (3) failed to further develop the record, and (4) erred at step four. Dkt. 31. As 16 discussed below, the Court AFFIRMS the Commissioner’s final decision and DISMISSES the 17 case with prejudice. 18 BACKGROUND 19 Plaintiff, proceeding pro se, is 53 years old, has at least a high school education, and has 20 worked as a conference planner. Admin. Record (AR) 29–30. In December 2019, Plaintiff 21 applied for benefits, alleging disability as of December 1, 2014. AR 65–66, 77–78. Plaintiff’s 22 application was denied initially and on reconsideration. AR 75, 85–86. After the ALJ conducted 23 a hearing in October 2021, the ALJ issued a decision finding Plaintiff was capable of performing 1 her past relevant work, as well as other jobs that existed in significant numbers in the national 2 economy. AR 29–31, 41–64. Thus, the ALJ concluded Plaintiff was not disabled from her 3 alleged onset date through her date last insured of December 31, 2019. AR 31. 4 DISCUSSION 5 The Court may reverse the ALJ’s decision only if it is legally erroneous or not supported 6 by substantial evidence of record. Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020). The Court 7 must examine the record but cannot reweigh the evidence or substitute its judgment for the 8 ALJ’s. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When evidence is susceptible to 9 more than one interpretation, the Court must uphold the ALJ’s interpretation if rational. Ford, 10 950 F.3d at 1154. Also, the Court “may not reverse an ALJ’s decision on account of an error

11 that is harmless.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 12 1. Step Two 13 Plaintiff contends the ALJ erred at step two by finding she had no severe mental 14 impairments. See Dkt. 31 at 4–8. 15 At step two, the ALJ must determine if the claimant has a medically determinable 16 impairment or combination of impairments that are severe, such that they would significantly 17 limit the claimant’s ability to perform basic work activities. See Smolen v. Chater, 80 F.3d 1273, 18 1289–90 (9th Cir. 1996) (citation omitted); 20 C.F.R. § 404.1520(a)(4)(ii). A medically 19 determinable impairment “must result from anatomical, physiological, or psychological 20 abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic

21 techniques.” 20 C.F.R. § 404.1521. The claimant retains the burden of proof at step two. See 22 Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Absence of objective medical evidence may 23 justify an adverse step two determination. See Ukolov v. Barnhart, 420 F.3d 1002, 1006 (9th 1 Cir. 2005). 2 Here, the ALJ determined neither Plaintiff’s anxiety nor depression were severe because 3 they caused no “more than mild limitations” in the following four broad functional areas, also 4 known as the “paragraph B” criteria: (1) understanding, remembering or applying information, 5 (2) interacting with others, (3) concentrating, persisting or maintaining page, and (4) adapting or 6 managing oneself. AR 24–25; 20 C.F.R. § 404.1520a. The ALJ explained Plaintiff did not 7 allege any limitations in the first three areas in her applications or during the hearing. See AR 8 24–25, 41–64, 252–53. The ALJ acknowledged there are records of Plaintiff reporting 9 depression and anxiety, but noted they were undermined by medical opinions showing she had 10 no mental limitations. See AR 25, 72, 83, 322, 345. The ALJ also noted Plaintiff’s record

11 lacked probative mental health treatment notes. AR 25. Plaintiff’s record instead includes 12 treatment notes explicitly stating Plaintiff had no depression or anxiety or showing she had 13 normal psychiatric findings in general. See AR 72–72, 83, 341, 348, 614. The burden falls on 14 Plaintiff to show her anxiety and depression were so severe that “they would significantly limit 15 [her] ability to perform basic work activities,” but none are present here. See Smolen, 80 F.3d at 16 1289–90. Because Plaintiff has failed to meet her burden, and because the ALJ’s finding is 17 supported by substantial evidence, the Court finds the ALJ did not err at step two. 18 2. Plaintiff’s Symptom Testimony 19 Plaintiff testified she is unable to work due to “debilitating” pain in her arms and wrists. 20 AR 50–51. She explained it is hard for her to hold a pen, cellphone, write, open things, or do

21 anything requiring grabbing something between her fingers. AR 51. She testified to attending 22 physical therapy, but found they did not make enough of difference in her condition. AR 52. 23 Where, as here, an ALJ determines a claimant has presented objective medical evidence 1 establishing underlying impairments that could cause the symptoms alleged, and there is no 2 affirmative evidence of malingering, the ALJ can only discount the claimant’s testimony as to 3 symptom severity by providing “specific, clear, and convincing” reasons supported by 4 substantial evidence. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). “The standard 5 isn’t whether our court is convinced, but instead whether the ALJ’s rationale is clear enough that 6 it has the power to convince.” Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022). 7 The ALJ first rejected Plaintiff’s testimony based on her treatment records. AR 27. This 8 is a valid reason to discount a claimant’s testimony. See 20 C.F.R. § 416.929(c)(3) (the 9 effectiveness of medication and treatment are relevant to the evaluation of a claimant’s alleged 10 symptoms); Wellington v. Berryhill, 878 F.3d 867, 876 (9th Cir. 2017) (evidence of medical

11 treatment successfully relieving symptoms can undermine a claim of disability). The records the 12 ALJ cited show that though there were some occasions where Plaintiff reported feeling sore and 13 tight, she repeatedly found therapy helpful and reported improvement, allowing her to participate 14 in functional activities. See AR 315, 441–44, 448–544. Plaintiff’s continued reports of 15 improvement from therapy undermine her statements, therefore the ALJ reasonably found 16 Plaintiff’s testimony inconsistent with her treatment records. 17 The ALJ also rejected Plaintiff’s testimony based on its inconsistency with objective 18 medical evidence. AR 27. When objective medical evidence in the record is inconsistent with 19 the claimant's subjective testimony, the ALJ may indeed weigh it as undercutting such 20 testimony.” Smartt, 53 F.4th at 498. Here, the ALJ pointed to an electrodiagnostic study

21 showing that Plaintiff’s wrist and elbow condition was “mild,” and that there was “no evidence” 22 of denervation in her upper extremity muscles. AR 626–27, 641. Other neurological testing and 23 physical examination of her wrists show her range of motion was within normal limits with 1 mostly full strength, though with some tenderness. AR 436–37, 445–46, 633. These generally 2 mild and normal examination results undermine Plaintiff’s testimony about the severity of her 3 symptoms, therefore in rejecting Plaintiff’s testimony based on objective medical evidence, the 4 ALJ did not err. 5 Finally, the ALJ rejected Plaintiff’s testimony based on her ability to travel for work and 6 vacation. AR 28. An ALJ may discount a claimant’s symptom testimony when it is inconsistent 7 with the claimant’s general activity level. See Molina, 674 F.3d at 1112–13; Lingenfelter v. 8 Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007). But there is nothing in the record showing, and the 9 ALJ does not explain, how Plaintiff’s ability to travel for work or vacation necessarily shows 10 Plaintiff’s alleged symptoms and limitations “may have been overstated.” AR 28. The records

11 do not indicate whether Plaintiff engaged in activities that would reasonably detract from her 12 statements about impairments during her travels. In rejecting Plaintiff’s testimony for this 13 reason, the ALJ erred. However, because the ALJ provided at least one valid reason to reject 14 Plaintiff’s testimony, and that reason is supported by substantial evidence, the ALJ’s error is 15 deemed harmless. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 16 2008) (including an erroneous reason among other reasons to discount a claimant’s credibility 17 does not negate the validity of the overall credibility determination and is at most harmless error 18 where an ALJ provides other reasons that are supported by substantial evidence). 19 3. Duty to Develop the Record 20 In evaluating Plaintiff’s symptom testimony, the ALJ referred to a nerve conduction

21 study. AR 27. Plaintiff argues the study is “essential to properly completing the record,” but the 22 ALJ “did not obtain the study or summarize its results,” thus neglecting his duty to complete the 23 record. Dkt. 31 at 9–10. 1 “An ALJ’s duty to develop the record further is triggered only when there is ambiguous 2 evidence or when the record is inadequate to allow for proper evaluation of the evidence.” 3 Mayes v. Massanari, 276 F.3d 453, 459–60 (9th Cir. 2001). In this case, however, Plaintiff 4 incorrectly states the ALJ did not obtain the results of the nerve conduction study. The ALJ 5 included the study in the record and considered it. See AR 29. The study, as discussed in the 6 previous section, shows Plaintiff’s wrist and elbow condition was “mild” and there was “no 7 evidence” of denervation in her upper extremity muscles. AR 626–67. The Court found this 8 study, as well as other objective medical evidence the ALJ cited, validly supported the ALJ’s 9 decision to reject her testimony. Therefore, the Court rejects Plaintiff’s argument the ALJ failed 10 to develop the record with regard to her physical impairment.

11 Plaintiff also contends the ALJ should have ordered a psychological evaluation before 12 determining she did not have a severe mental impairment at step two. Dkt. 31 at 10. The Court 13 also rejects this argument. The available evidence the ALJ considered at step two were not 14 ambiguous. As the ALJ pointed out, the records that mention Plaintiff’s report of anxiety and 15 depression coincided with Plaintiff’s report of familial issues. See AR 345. Other records 16 similarly show her anxiety was attributed to external stressors, while others explicitly state she 17 had no depression or anxiety, or she had normal psychiatric findings in general. See AR 72–72, 18 83, 341, 348, 355, 614, 641. Further, as discussed above, Plaintiff did not allege any mental 19 health symptoms in her initial application or during the hearing. See AR 252, 41–64. Given the 20 lack of ambiguity in Plaintiff’s record with regard to her mental health symptoms, the Court

21 cannot say the ALJ’s duty to further develop the record was triggered. 22 4. Step Four 23 Plaintiff contends the ALJ erred by relying on an erroneous vocational expert (VE) 1 testimony. Dkt. 31 at 10–11. 2 At step four in the evaluation process, the ALJ must determine whether or not a 3 claimant’s impairment(s) prevents the claimant from doing past relevant work. See 20 C.F.R. § 4 404.1520(f). “[A] claimant has the burden to prove that he cannot perform his past relevant 5 work “either as actually performed or as generally performed in the national economy.” Stacy v. 6 Colvin, 825 F.3d 563, 569 (9th Cir. 2016) (quoting Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th 7 Cir. 2002)). An ALJ may rely either on “a properly completed vocational report” and “the 8 claimant’s own testimony” to determine whether the claimant can execute the duties of past 9 relevant work as the claimant actually performed them. Pinto v. Massanari, 249 F.3d 840, 845 10 (9th Cir. 2001). As to what work a claimant can generally perform, the ALJ may consult the

11 Dictionary of Occupation Titles (DOT). Stacy, 825 F.3d at 569 (citing Social Security Ruling 12 (SSR) 82-61). 13 During the hearing, Plaintiff testified she last worked in 2014 as a conference planner. 14 AR 49. The VE classified this past work as “conference planner,” DOT code “#169.117-022.” 15 AR 57. After Plaintiff provided descriptions of her work, the VE confirmed this was the work 16 she identified. See AR 57–59. The VE also testified that an individual with Plaintiff’s residual 17 functional capacity (RFC) could perform this work. AR 60. The ALJ incorporated the VE’s 18 testimony in finding at step four that Plaintiff could perform her past work. AR 30. Plaintiff 19 argues the code the VE testified to was not published in the DOT, therefore the ALJ erred by 20 accepting the VE’s testimony. Dkt. 31 at 10–11.

21 Although the burden on step four falls on the claimant, the ALJ is still required to 22 determine whether there is a conflict between the VE’s testimony and DOT. See Gutierrez v. 23 Colvin, 844 F.3d 804, 808 (9th Cir. 2016); see also SSR 00-4p (“the adjudicator has an 1 affirmative responsibility to ask about any possible conflict between” the VE testimony and the 2 DOT). While the ALJ did ask the VE during the hearing if a conflicted existed between the 3 VE’s provided code (#169.117-022) and the DOT, (AR 60), “[t]he ALJ is not absolved of this 4 duty [to reconcile conflicts] merely because the VE responds ‘yes’ . . . .” Lamear v. Berryhill, 5 865 F.3d 1201, 1205 n.3 (9th Cir. 2017) (quoting Moore v. Colvin, 769 F.3d 987, 990 (8th Cir. 6 2014)). Had the ALJ independently looked into the code, the ALJ may have recognized that it 7 was not published in the DOT. The ALJ’s error, however, is harmless because the VE also 8 testified that an individual with Plaintiff’s RFC could perform Plaintiff’s past work as actually 9 performed. See AR 57–60. An ALJ need find only that a claimant can perform his or her past 10 work as generally performed or as actually performed, thus the ALJ’s reliance on a faulty DOT

11 code in finding Plaintiff can perform past work as generally performed is harmless. See Stacy, 12 825 F.3d at 569 (“ALJs may use either the “actually performed test” or the “generally performed 13 test” when evaluating a claimant’s ability to perform past work.”). 14 Moreover, at step five, the ALJ found Plaintiff could perform other jobs, besides her 15 past work. Dkt. 37 at 13. During the hearing, the ALJ asked the VE whether an individual with 16 Plaintiff’s RFC could perform other jobs. AR 59–60. The VE testified to three other jobs that 17 exist in the national economy. AR 60. The ALJ accepted the VE’s testimony and incorporated it 18 into her step five findings. AR 31. The Court found the ALJ properly assessed Plaintiff’s 19 symptom testimony, and Plaintiff made no challenges to the other evidence the ALJ considered 20 in assessing her RFC. Therefore, the ALJ’s RFC assessment is supported by substantial

21 evidence. The ALJ’s step five findings are also unchallenged by Plaintiff. Thus, even if the ALJ 22 had erred in finding Plaintiff not disabled based on her ability to perform past work at step four, 23 the error would be harmless because the ALJ’s step five findings are supported by substantial 1 evidence. Tommasetti v. Astrue, 533 F.3d 1035, 1044 (9th Cir. 2008) (finding the ALJ’s step 2 four finding error harmless because “the ALJ properly concluded as an alternative at step five 3 that [plaintiff] could perform [other] work in the national and regional economies”). 4 CONCLUSION 5 For the foregoing reasons, the Commissioner’s final decision is AFFIRMED and this 6 case is DISMISSED with prejudice. 7 DATED this 6th day of December, 2023.

8 A 9 RICARDO S. MARTINEZ 10 UNITED STATES DISTRICT JUDGE

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