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Mitzi L. v. Commissioner of Social Security

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

July 3, 2019

MITZI L., Plaintiff,



         Plaintiff brought this matter for judicial review of the Commissioner's denial of her application for supplemental security income (“SSI”) and disability insurance (“DBI”) benefits. Plaintiff contends the decision of the Commissioner was based on legal error and not supported by substantial evidence. For the reasons set forth below, the decision to deny benefits is affirmed.


         On October 28, 2014, plaintiff filed for SSI and DIB, alleging disability beginning November 1, 2012. Administrative Record (“AR”) 20. These claims were denied on initial administrative review and on reconsideration. Id. Plaintiff appeared and testified at a hearing before administrative law judge (“ALJ”) Ilene Sloan on July 27, 2016. AR 45. Following the hearing, the ALJ issued an unfavorable decision on October 27, 2016. AR 20-37.

         The Commissioner employs a five-step sequential disability evaluation process in determining whether a claimant is disabled. 20 C.F.R. § 416.920. If the claimant is found disabled or not disabled at any step thereof, the disability determination is made at that step, and the sequential evaluation process ends. Id. Step one considers whether the claimant is engaged in “substantial gainful activity.” Kennedy v. Colvin, 738 F.3d 1172, 1175 (9th Cir. 2013) (citing C.F.R. § 416.920(a)(4)). Step two considers “the severity of the claimant's impairments. Id. If the claimant is found to have a severe impairment, step three considers “whether the claimant's impairment or combination of impairments meets or equals a listing under 20 C.F.R. pt. 404, subpt. P, app. 1.” Id. “If so, the claimant is considered disabled and benefits are awarded, ending the inquiry.” Id. If not, the claimant's residual functional capacity (“RFC”) is considered at step four in determining whether the claimant can still do his or her past relevant work and, if necessary, at step five “make an adjustment to other work.” Id.

         At step one, the ALJ determined plaintiff had not engaged in substantial gainful activity since plaintiff's alleged onset date of November 1, 2012. AR 22. At step two, the ALJ found plaintiff has the following severe impairments: status post thyroid/parathyroid surgeries; status post thyroid cancer; status post elbow and hand procedures; obesity; and fibromyalgia. AR 23. At step three, the ALJ found plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. AR 26.

         Prior to step four, the ALJ determined plaintiff has the RFC to perform light work “except she can only occasionally stoop, kneel, crouch, and crawl. She can occasionally climb ramps and stairs, but cannot climb ladders, ropes, or scaffolds. She would need to avoid concentrated exposure to hazards such as moving machinery and unprotected heights. She can frequently handle and finger with both upper extremities, and can frequently reach in all directions.” AR 26-27. After determining plaintiff's RFC, the ALJ found at step four she was unable to perform any of her past relevant work, but that at step five she could perform other jobs existing in significant numbers in the national economy, and therefore found plaintiff was not disabled. AR 35-36.

         Plaintiff requested review and the Social Security Administration Appeals Council denied review on March 12, 2018, making the ALJ's decision the Commissioner's final decision subject to judicial review. AR 1. Plaintiff appealed to this Court on May 9, 2018. See Dkt. 4 p. 4. The Parties consented to proceed before a magistrate judge. Dkt. 2.


         Plaintiff seeks reversal of the ALJ's decision and remand for an award of benefits, arguing the Commissioner erred in: evaluating (1) plaintiff's severe impairments; (2) plaintiff's symptom testimony; (3) plaintiff's RFC; and (4) whether plaintiff can perform work existing in substantial numbers in the national economy.

         The Court will uphold an ALJ's decision unless: (1) the decision is based on legal error; or (2) the decision is not supported by substantial evidence. Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). Substantial evidence is “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017) (quoting Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988)). This requires “‘more than a mere scintilla, '” though “‘less than a preponderance'” of the evidence. Id. (quoting Desrosiers, 846 F.2d at 576). The Commissioner's findings will be upheld “if supported by inferences reasonably drawn from the record.” Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).

         If more than one rational interpretation can be drawn from the evidence, then the Court must uphold the ALJ's interpretation. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). That is, “[w]here there is conflicting evidence sufficient to support either outcome, ” the Court “must affirm the decision actually made.” Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984) (quoting Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971)). The Court, however, may not affirm by locating a quantum of supporting evidence and ignoring the non-supporting evidence. Orn, 495 F.3d at 630.

         1. Whether the ALJ appropriately evaluated plaintiff's severe impairments.

         Plaintiff contends the ALJ's step-two determination of plaintiff's severe impairments does not account for her severe impairment of “status post mid foot fusion.” Dkt. 15 p. 5.

         Step-two of the administration's evaluation process requires the ALJ to determine if the claimant “has a medically severe impairment or combination of impairments.” Smolen v. Chater, 80 F.3d 1273, 1289-90 (9th Cir. 1996) (citation omitted). An impairment is "not severe" if it does not "significantly limit" the ability to conduct basic work activities. Id. “An impairment or combination of impairments can be found ‘not severe' only if the evidence establishes a slight abnormality that has ‘no more than a minimal effect on an individual[']s ability to work.'" Smolen, supra, 80 F.3d at 1290 (quoting Social Security Ruling “SSR” 85-28) (citing Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988)). The step-two analysis is “a de minimis screening device to dispose of groundless claims” when the disability evaluation process ends at step two. Smolen, supra, 80 F.3d at 1290 (citing Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987)). Plaintiff bears the burden to establish by a preponderance of the evidence the existence of a severe impairment that prevented performance of substantial gainful activity and that this impairment lasted, or is expected to last, for at least twelve continuous months. Yuckert, supra, 482 U.S. at 146.

         In this case, medical records show plaintiff fractured her foot in late 2011 and in December 2012, she was diagnosed with posttraumatic arthritis in the left foot and underwent mid-foot fusion surgery. AR 3914, 3894-3896. In July of 2013, plaintiff reported continuing lateral foot pain. AR 3641. Her physician performed a bone scan and stated he was “a bit at a loss as to why she continues to have her lateral foot pain, other than this is tendon related and related to the biomechanics of her foot.” Id. In August and November of 2013, plaintiff's surgeon removed the retained hardware from plaintiff's foot. AR 3621 and 3637.

         The ALJ noted subsequent reports show few specific complaints related to left foot problems, which supports a finding that plaintiff's foot condition is not severe. See AR 25. Plaintiff counters with citations to an April 2014 visit in which she sought treatment for chronic foot pain and a November 2014 assessment of lower extremity muscle spasms and bilateral leg pain. Dkt. 15 p. 6. But the ALJ reasonably discounted plaintiff's April 2014 report of chronic foot pain because it was made in the context of requesting narcotic pain medication. AR 25; see AR 3516. As discussed below, doctors have noted plaintiff's consistent pattern of being less than candid with her symptoms to obtain narcotic pain medication. See Section 3, infra. Furthermore, it is not evident plaintiff's November 2014 muscle spasms and leg pain relate to her left foot condition. See AR 1235-1243.

         The paucity of complaints related to a foot condition is consistent with plaintiff's testimony at the hearing. Plaintiff made no specific mention of limitations due to foot problems. See AR 45-66. Moreover, as the ALJ implied, plaintiff's activities do not suggest limitations from foot pain. See AR 34. Plaintiff took care of her terminally ill mother for roughly a year and a half from March 2013 to September 2014. See AR 60, 295. Plaintiff's duties included helping her mother with eating, toileting, and dressing. AR 60. She also cared for the family's horses, which she apparently continued to do after her mother passed away. See AR 297. These duties generally show ability to work on one's feet.

         In sum, while plaintiff underwent a foot procedure in 2012, the paucity of subsequent complaints related to foot pain suggest her condition resolved. Her activities also tend to suggest any continuing foot impairment has “no more than a minimal effect on [her] ability to work." See Smolen, supra, 80 F.3d at 1290. Therefore, substantial evidence supports the ALJ's determination that plaintiff's left foot condition is not a severe impairment.

         2. Whether the ALJ appropriately concluded plaintiff did not meet one of the listings.

         Plaintiff broadly disputes the ALJ's determination that her impairments did not meet or equal one of the listings. Dkt. 15 p. 4. However, “a bare assertion of an issue does not preserve a claim.” D.A.R.E. America v. Rolling Stone Magazine,270 F.3d 793, 793 (9th Cir.2001) (internal citations omitted). Plaintiff fails to identify a legal standard with respect to the listings and does not provide any reasoning how the ALJ erred with respect to the listing analysis. See id. pp. 1-12. Therefore, the court concludes the ALJ did not err in finding plaintiff's impairments did not meet or medically equal any of the listings. See Carmickle v. Comm'r, ...

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