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Nellie P. v. Commissioner of Social Security

United States District Court, W.D. Washington, Seattle

June 17, 2019

NELLIE P., Plaintiff,


          Brian A. Tsuchida Chief United States Magistrate Judge.

         Plaintiff Nellie P. seeks review of the denial of her applications for Supplemental Security Income and Disability Insurance Benefits. She contends the ALJ erred in evaluating the medical evidence and her testimony, and that the resulting residual functional capacity finding and finding of nondisability are erroneous. Dkt. 14. The Court AFFIRMS the Commissioner's final decision and DISMISSES the case with prejudice.


         Plaintiff is currently 44 years old, has a high school education, and has worked as a collections agent and customer service representative. Tr. 58, 78-81, 200. She applied for benefits in August 2014, alleging disability as of November 2013. Tr. 200, 207, 215. After her applications were denied initially and on reconsideration, the ALJ conducted a hearing and, on October 31, 2016, issued a decision finding plaintiff not disabled. Tr. 35-44. The Appeals Council denied plaintiff's request for review, making the ALJ's decision the Commissioner's final decision. Tr. 7.


         Utilizing the five-step disability evaluation process, [1] the ALJ found that plaintiff had not engaged in substantial gainful activity since the alleged onset date; she had the following severe impairments: fibromyalgia and mild degenerative disc disease with lumbar spondylosis and spina bifida, status post lumbar fusion; and these impairments did not meet or equal the requirements of a listed impairment.[2] Tr. 37-38. The ALJ found that plaintiff had the residual functional capacity to perform sedentary work with additional postural and environmental limitations. Tr. 38. The ALJ found that plaintiff was able to perform her past relevant work as a collections agent and, in the alternative, there were other jobs that exist in significant numbers in the national economy that plaintiff could perform. Tr. 42-44. The ALJ therefore found that plaintiff was not disabled. Tr. 44.


         A. Medical evidence

         Plaintiff asserts that the ALJ failed to properly evaluate the medical evidence. Dkt. 14 at 2. She describes, over the course of nearly five full pages of her brief, medical treatment notes from 2013 through 2016. Dkt. 14 at 2-7. She concludes this recitation by stating: “Although none of [plaintiff's] treatment providers have stated a specific opinion regarding [plaintiff's] functional limitations, the clinical findings from all of her treatment providers fully support [plaintiff's] testimony about the symptoms and limitations she has been experiencing since November 2013.” Dkt. 14 at 7.

         Plaintiff presents no argument or explanation with respect to this evidence, nor does she identify any error in the ALJ's assessment of the evidence. The Court may deem arguments that are unsupported by explanation to be waived. See Avila v. Astrue, No. C07-1331, 2008 WL 4104300 (E.D. Cal. Sept. 2, 2008) at *2 (unpublished opinion) (citing Nw. Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 923-24 (9th Cir. 1996) (party who presents no explanation in support of claim of error waives issue)). Merely pointing to the existence of evidence and stating that it supports the claimant's testimony is insufficient to present an argument to the court. And even if plaintiff had explained how this evidence supports her testimony, the existence of an alternative interpretation of the evidence does not establish error in the ALJ's assessment. When the evidence is susceptible to more than one rational interpretation, it is the Commissioner's conclusion that the court must uphold. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). Plaintiff has done nothing to show that that the ALJ's assessment of the evidence is invalid.

         Plaintiff does, however, present arguments with respect to two aspects of the medical evidence. First, she asserts that the ALJ erroneously found that psoriatic arthritis was not a medically determinable severe impairment. Dkt. 14 at 7. The ALJ found that while plaintiff has psoriasis, there is no diagnosis of psoriatic arthritis. Tr. 38. Plaintiff argues that contrary to the ALJ's finding, Dr. Rompala diagnosed psoriatic arthritis in June 2016. Dkt. 14 at 7.

         An impairment is medically determinable if it results from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques. 20 C.F.R. § 404.1508. To be medically determinable, a physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings. Id. A claimant's statement of symptoms alone is not enough to establish a physical or mental impairment. 20 C.F.R. § 404.1508, 404.1528(a). Where there are no medical signs or laboratory findings to substantiate the existence of a medically determinable impairment, the ALJ must find the claimant not disabled at step two, regardless of how many symptoms a claimant alleges or how genuine the complaints may appear to be. SSR 96-4p. “The mere existence of an impairment is insufficient proof of a disability.” Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) (citing Sample v. Schweiker, 694 F.2d 639, 642-43 (9th Cir. 1982)).

         Plaintiff points to a June 2016 treatment note from Dr. Rompala. That note states: “Dx [diagnosis] of psoriatic arthritis. Feet hurting, toes hurting, painful, had been seeing rheumatologist, would like to continue.” Tr. 1381. Dr. Rompala referred plaintiff to rheumatology. Tr. 1383. But this treatment note does not document any signs or laboratory findings of psoriatic arthritis; there is no indication that Dr. Rompala did anything other than record plaintiff's symptoms and enter a referral to rheumatology. This treatment note is insufficient to establish psoriatic arthritis as a medically determinable impairment.[3] Thus, even if the ALJ erred by finding there was no diagnosis of psoriatic arthritis in the record, any error in that finding is rendered harmless by the lack of evidence sufficient to establish the existence of a medically determinable impairment. See Molina v. Astrue, 674 F.3d 1104, 1122 (9th Cir. 2012) (an error is harmless where it is inconsequential to the ALJ's ultimate nondisability determination). The court finds no basis to disturb the ALJ's assessment of this impairment.

         Second, plaintiff argues that the ALJ erred in assessing the opinion of the state agency medical consultant. Dkt. 14 at 8. Dale Thuline, M.D., reviewed the record in January 2015 and opined that plaintiff was able to perform a reduced range of light work. Tr. 119-20. The ALJ gave this opinion, the only medical opinion in the record, significant weight. Tr. 42. But the ALJ found that plaintiff was limited to sedentary work based ...

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