Presumably, the opinion of the VE would comport with the DOT’s 6 || guidance.”
How later courts described this case
- Presumably, the opinion of the VE would comport with the DOT’s 6 || guidance.”
- placing burden on claimant to produce evidence 23 that his impairment meets a listing
- finding 17 portions of treatment records based solely on claimant’s own “perception or 18 description” of his problems did not support a finding of a medically determinable 19 impairment
- indicating that the court need not address a 19 claimant’s arguments regarding one of two jobs identified by the ALJ given that 20 one of the jobs satisfied Step Five
Written by the judges who cited it.
The opinion
1
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
10
11 RONETTE R. G.,1 Case No. 8:19-cv-00051-JC
12
Plaintiff, MEMORANDUM OPINION
13
v.
14
15 ANDREW SAUL,2 Commissioner
of Social Security Administration,
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Defendant.
17
18 I. SUMMARY
19 On January 9, 2019, plaintiff Ronette R. G. filed a Complaint seeking
20 review of the Commissioner of Social Security’s denial of plaintiff’s applications
21 for benefits. The parties have consented to proceed before the undersigned United
22 States Magistrate Judge.
23 ///
24
25 1Plaintiff’s name is partially redacted to protect her privacy in compliance with Federal
Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court
26
Administration and Case Management of the Judicial Conference of the United States.
27
2Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Commissioner Andrew
28 Saul is hereby substituted in as the defendant in this action.
1
1 This matter is before the Court on the parties’ cross motions for summary
2 judgment, respectively (“Plaintiff’s Motion”) and (“Defendant’s Motion”)
3 (collectively “Motions”). The Court has taken the Motions under submission
4 without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; January 11, 2019 Case
5 Management Order ¶ 5.
6 Based on the record as a whole and the applicable law, the decision of the
7 Commissioner is AFFIRMED. The findings of the Administrative Law Judge
8 (“ALJ”) are supported by substantial evidence and are free from material error.
9 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE
10 DECISION
11 On December 19, 2014, plaintiff filed applications for Supplemental
12 Security Income and Disability Insurance Benefits, alleging disability beginning
13 on April 16, 2006 and October 16, 2013, respectively, due to “[b]ack, arms, legs,
14 body has pins, needles, rods, cannot stand for prolonged time, [and] anxiety.”
15 (Administrative Record (“AR”) 75, 76, 188, 198, 230). The ALJ examined the
16 medical record and heard testimony from plaintiff (who was represented by
17 counsel) and a vocational expert. (AR 30-44).
18 On December 14, 2017, the ALJ determined that plaintiff was not disabled
19 through the date of the decision. (AR 13-24). Specifically, the ALJ found:
20 (1) plaintiff suffered from the following severe impairments: status-post motor
21 vehicle accident with multiple fractures in 2006; bilateral carpal tunnel syndrome;
22 morbid obesity; lumbar and cervical degenerative disc disease; depression; and
23 anxiety (AR 16); (2) plaintiff’s impairments, considered individually or in
24 combination, did not meet or medically equal a listed impairment (AR 16-18);
25 (3) plaintiff retained the residual functional capacity to perform sedentary work
26 ///
27 ///
28 ///
2
1 (20 C.F.R. §§ 404.1567(a), 416.967(a)) with additional limitations3 (AR 18-19);
2 (4) plaintiff could not perform any past relevant work (AR 22); (5) there are jobs
3 that exist in significant numbers in the national economy that plaintiff could
4 perform, specifically Document Preparer and Table Worker (AR 23); and
5 (6) plaintiff’s statements regarding the intensity, persistence, and limiting effects
6 of her subjective symptoms were not entirely consistent with the medical evidence
7 and other evidence in the record (AR 19).
8 On November 15, 2018, the Appeals Council denied plaintiff’s application
9 for review. (AR 1-3).
10 III. APPLICABLE LEGAL STANDARDS
11 A. Administrative Evaluation of Disability Claims
12 To qualify for disability benefits, a claimant must show that she is unable
13 “to engage in any substantial gainful activity by reason of any medically
14 determinable physical or mental impairment which can be expected to result in
15 death or which has lasted or can be expected to last for a continuous period of not
16 less than 12 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012)
17 (quoting 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted); 20 C.F.R.
18 §§ 404.1505(a), 416.905. To be considered disabled, a claimant must have an
19 impairment of such severity that she is incapable of performing work the claimant
20 previously performed (“past relevant work”) as well as any other “work which
21 exists in the national economy.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.
22 1999) (citing 42 U.S.C. § 423(d)).
23
24
3The ALJ determined that plaintiff also was able to occasionally and frequently lift and
carry ten pounds; stand and walk (with normal breaks) for a total of two hours out of an eight-
25 hour workday and would use a walker for long distances and traveling; sit (with normal breaks)
for a total of six hours out of an eight-hour workday; occasionally climb, balance, stoop, kneel or
26
crouch; and frequently perform bilateral gross and fine manipulations. (AR 18-19). The ALJ
27 further determined that plaintiff was precluded from climbing ladders, ropes or scaffolds;
crawling; uneven terrain; unprotected heights; dangerous moving machinery; and was limited to
28 simple routine tasks. (AR 19).
3
1 To assess whether a claimant is disabled, an ALJ is required to use the five-
2 || step sequential evaluation process set forth in Social Security regulations. See
3 || Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th
4 || Cir. 2006) (describing five-step sequential evaluation process) (citing 20 C.F.R.
5 || §§ 404.1520, 416.920). The claimant has the burden of proof at steps one through
6 | four —7.e., determination of whether the claimant was engaging in substantial
7 || gainful activity (step 1), has a sufficiently severe impairment (step 2), has an
8 || impairment or combination of impairments that meets or medically equals one of
9 || the conditions listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“Listings”)
10 || (step 3), and retains the residual functional capacity (“RFC”) to perform past
11 || relevant work (step 4). Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)
12 |) (citation omitted). The Commissioner has the burden of proof at step five —i.e.,
13 || establishing that the claimant could perform other work in the national economy.
14 || Id.
15 B. Federal Court Review of Social Security Disability Decisions
16 A federal court may set aside a denial of benefits only when the
17 || Commissioner’s “final decision” was “based on legal error or not supported by
18 || substantial evidence in the record.” 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871
19 || F.3d 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). The
20 || standard of review in disability cases is “highly deferential.” Rounds v.
21 || Commissioner of Social Security Administration, 807 F.3d 996, 1002 (9th Cir.
22 || 2015) (citation and quotation marks omitted). Thus, an ALJ’s decision must be
23 || upheld if the evidence could reasonably support either affirming or reversing the
24 || decision. Trevizo, 871 F.3d at 674-75 (citations omitted). Even when an ALJ’s
25 || decision contains error, it must be affirmed if the error was harmless. See
26 || Treichler v. Commissioner of Social Security Administration, 775 F.3d 1090,
27 || 1099 (9th Cir. 2014) (ALJ error harmless if (1) inconsequential to the ultimate
28 | ///
1 || nondisability determination; or (2) ALJ’s path may reasonably be discerned
2 || despite the error) (citation and quotation marks omitted).
3 Substantial evidence is “such relevant evidence as a reasonable mind might
4 || accept as adequate to support a conclusion.” Trevizo, 871 F.3d at 674 (defining
5 || “substantial evidence” as “more than a mere scintilla, but less than a
6 || preponderance’’) (citation and quotation marks omitted). When determining
7 || whether substantial evidence supports an ALJ’s finding, a court “must consider the
8 || entire record as a whole, weighing both the evidence that supports and the
9 || evidence that detracts from the Commissioner’s conclusion[.]” Garrison v.
10 || Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citation and quotation marks omitted).
11 Federal courts review only the reasoning the ALJ provided, and may not
12 || affirm the ALJ’s decision “on a ground upon which [the ALJ] did not rely.”
13 || Trevizo, 871 F.3d at 675 (citations omitted). Hence, while an ALJ’s decision need
14 || not be drafted with “ideal clarity,” it must, at a minimum, set forth the ALJ’s
15 || reasoning “in a way that allows for meaningful review.” Brown-Hunter v. Colvin,
16 || 806 F.3d 487, 492 (9th Cir. 2015) (citing Treichler, 775 F.3d at 1099).
17 A reviewing court may not conclude that an error was harmless based on
18 || independent findings gleaned from the administrative record. Brown-Hunter, 806
19 || F.3d at 492 (citations omitted). When a reviewing court cannot confidently
20 || conclude that an error was harmless, a remand for additional investigation or
21 || explanation is generally appropriate. See Marsh v. Colvin, 792 F.3d 1170, 1173
22 || (9th Cir. 2015) (citations omitted).
DISCUSSION
24 A. The ALJ’s Step Five Determination Is Free of Material Error
25 Plaintiff contends that the ALJ erred at step five in determining that plaintiff
26 || could perform the representative occupations of Document Preparer and Table
27 || Worker because the requirements of such occupations are inconsistent with
28 || plaintiff's abilities. (Plaintiff's Motion at 2-4). Specifically, plaintiff argues that
1 || she would be unable to perform the Document Preparer job because it requires
2 || Reasoning Level Three skills, which is beyond her RFC limiting her to “simple
3 || routine tasks.” (Plaintiff's Motion at 2-4). Plaintiff argues that she would be
4 || unable to perform the Table Worker job because it involves exposure to
5 || “dangerous moving machinery,” which is forbidden under plaintiff's RFC.
6 || (Plaintiff's Motion at 4-5). A reversal or remand is not warranted on these bases.
7 1. Pertinent Law
8 At step five, the Commissioner must prove that other work exists in
9 || “significant numbers” in the national economy which could be done by an
10 || individual with the same RFC, age, education, and work experience as the
11 || claimant. 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. §§ 404.1520(a)(4)(v) & (g),
12 || 404.1560(c), 416.920(a)(4)(v) & (g), 416.960(c); Heckler v. Campbell, 461 U.S.
13 || 458, 461-62 (1983); see Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir. 2015)
14 || (describing legal framework for step five) (citations omitted).
15 One way the Commissioner may satisfy this burden is by obtaining
16 || testimony from an impartial vocational expert (alternatively, “VE”’) about the type
17 || of work such a claimant is still able to perform, as well as the availability of
18 || related jobs in the national economy. See Gutierrez v. Colvin, 844 F.3d 804, 806-
19 | 07 (9th Cir. 2016) (citation omitted); Osenbrock v. Apfel, 240 F.3d 1157, 1162
20 | (9th Cir. 2001) (citing Tackett, 180 F.3d at 1100-01). When a vocational expert is
21 || consulted at step five, the ALJ typically asks the VE at the hearing to identify
22 || specific examples of occupations that could be performed by a hypothetical
23 || individual with the same characteristics as the claimant. Zavalin, 778 F.3d at 846
24 || (citations omitted); Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012) (citations
25 || omitted). The VE’s responsive testimony may constitute substantial evidence of a
26 || claimant’s ability to perform such sample occupations so long as the ALJ’s
27 || hypothetical question included all of the claimant’s limitations supported by the
28 | ///
1 || record. See Hill, 698 F.3d at 1161-62 (citations omitted); Robbins v. Social
2 || Security Administration, 466 F.3d 880, 886 (9th Cir. 2006) (citation omitted).
3 A VE’s testimony generally should be consistent with the Dictionary of
4 || Occupational Titles (“DOT’”).* See Lamear v. Berryhill, 865 F.3d 1201, 1205 (9th
5 || Cir. 2017) (Presumably, the opinion of the VE would comport with the DOT’s
6 || guidance.”); see generally Gutierrez, 844 F.3d at 807 (DOT “guides the [ALJ’s]
7 || analysis” at step five). To the extent it is not —i.e., the VE’s opinion “conflicts
8 || with, or seems to conflict with” the DOT — an ALJ may not rely on the VE’s
9 || testimony to deny benefits at step five unless and until the ALJ has adequately
10 || resolved any such conflict. Gutierrez, 844 F.3d at 807 (citing Social Security
11 | Ruling (“SSR”) 00-4P, 2000 WL 1898704, at *2 (2000)); Rounds, 807 F.3d at
12 || 1003-04 (citations omitted); SSR 00-4p, 2000 WL 1898704, at *4 (“When
13 || vocational evidence provided by a VE [ | is not consistent with information in the
14 || DOT, the [ALJ] must resolve [the] conflict before relying on the VE [ ] evidence
15 || to support a determination or decision that the individual is or is not disabled.”’).
16 || In each case where VE testimony is used, an ALJ generally must affirmatively
17 || (1) ask the VE whether there is a conflict between the expert’s opinions and the
18 || DOT requirements for a particular occupation; (2) “obtain a reasonable
19 || explanation for any apparent conflict”; and (3) explain in the decision how the
20 || ALJ resolved any such conflict. Massachi, 486 F.3d at 1152-53 (quoting SSR 00-
21 || 4p).
22
23
“The DOT, which is compiled by the U.S. Department of Labor, “details the specific
24 requirements for different occupations,” and is the Social Security Administration’s “‘primary
25 || source of reliable job information’ regarding jobs that exist in the national economy.” Gutierrez,
844 F.3d at 807; Zavalin, 778 F.3d at 845-46 (citing Terry v. Sullivan, 903 F.2d 1273, 1276 (9th
26 || Cir. 1990)); see also 20 C.F.R. §§ 404.1566(d)(1), 404.1569, 416.966, 416.969. Neither the
DOT nor a VE’s opinion, however, “automatically ‘trumps’” where there is a conflict. Massachi
v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007) (quoting Social Security Ruling 00-4p) (internal
28 || quotation marks omitted).
1 An ALJ need only resolve those conflicts that are “apparent or obvious.”
2 || Gutierrez, 844 F.3d at 807-08. A conflict 1s “apparent or obvious” only when VE
3 || testimony is “at odds with” DOT requirements that are “essential, integral, or
4 || expected” for a particular occupation. Id. at 808. The extent to which an ALJ
5 || must scrutinize a VE’s opinions 1s highly “fact-dependent.” Lamear, 865 F.3d at
6 || 1205 (citation omitted). For example, “less scrutiny” 1s required where the VE has
7 || identified a representative occupation that is “familiar” (e.g., “cashiering”’).
8 | Gutierrez, 844 F.3d at 808. In such cases, an ALJ may be able to resolve a
9 || potential conflict without inquiring further of the VE —i.e., based on “common
10 || experience” that it is “likely and foreseeable” that a claimant with certain
11 | limitations would still be able to perform all of the “essential, integral, [and]
12 || expected” requirements the DOT described for the particular occupation. See,
13 | e.g., id., at 807-08 (e.g., no “apparent or obvious conflict” between DOT listing
14 || for “cashier” occupation which requires “frequent reaching” and VE’s testimony
15 || that claimant could still work as a cashier despite her inability to reach above
16 || shoulder level with her right arm, given how “uncommon it is for most cashiers to
17 || have to reach overhead” at all).
18 Conversely, where a representative occupation is “more obscure,” ordinarily
19 | an ALJ would not be able to resolve an apparent conflict at step five based solely
20 || on “common experience,” but instead would need to ask the VE to provide a more
21 || detailed explanation for the apparently conflicting opinion. Lamear, 865 F.3d at
22 || 1205 (footnote omitted).
23 2. Analysis
24 a. Document Preparer
25 Plaintiff argues that pursuant to Zavalin, a limitation to “simple routine
26 || tasks” is inconsistent with Reasoning Level Three work, and thus, she would be
27 || unable to perform the Document Preparer job, which requires Level Three
28 || reasoning. (Plaintiff's Motion at 4).
1 There are six GED Reasoning Levels that range from Level One (simplest)
2 || to Level Six (most complex). DOT (4th ed. 1991), app. C., § IH, 1991 WL
3 || 688702. Level Three requires a worker to “[a]pply commonsense understanding
4 || to carry out instructions furnished in written, oral, or diagrammatic form” and to
5 || “[d]Jeal with problems involving several concrete variables in or from standardized
6 || situations.” Id. “Courts have found that a limitation to simple tasks performed at
7 || a routine or repetitive pace may be consistent with Reasoning Level 2.” Skinner v.
8 | Berryhill, 2018 WL 1631275, at *4 (C.D. Cal. Apr. 2, 2018) (citation and internal
9 || quotation marks omitted). “However, ‘[a]s one goes up the numerical reasoning
10 | development scale used by the DOT, the level of detail involved in performing the
11 || job increases while the job task becomes less routine.’” Id. (quoting Meissl v.
12 || Barnhart, 403 F. Supp. 2d 981, 984 (C.D. Cal. May 25, 2005)). Therefore, “there
13 || is an apparent conflict between the [RFC] to perform simple, repetitive tasks, and
14 || the demands of Level 3 Reasoning.” Zavalin, 778 F.3d at 846.
15 Here, the VE testified that a hypothetical person with plaintiff's RFC,
16 || including a limitation to simple routine tasks, could perform the DOT jobs of
17 || Document Preparer, DOT 249.587-018, and Table Worker, DOT 739.687-182.
18 || (AR 42-43). The VE testified that her testimony in that respect was consistent
19 || with the DOT. (AR 44). Relying on the VE’s testimony, the ALJ determined that
20 || plaintiff could perform these alternative jobs and therefore was not disabled. (AR
21 |] 23).
22 Notwithstanding the VE’s testimony that no conflict existed, an apparent
23 || conflict exists between the ALJ’s finding that plaintiff is limited to simple routine
24 || tasks and the VE’s testimony that a person with plaintiff's RFC could perform the
25 || Document Preparer job requiring Level Three reasoning, and the ALJ erred in
26 || failing to resolve the apparent conflict through VE testimony. See Zavalin, 778
27 || F.3d at 846-47; see also Lamear, 856 F.3d at 1207 n.3 (“The ALJ is not absolved
28 || of this duty to reconcile conflicts merely because the VE responds yes when asked
1 if her testimony is consistent with the DOT.”) (citation and internal quotation
2 marks and brackets omitted).
3 Defendant argues that any error was harmless. (Defendant’s Motion at 2-3).
4 He points out that the claimant in Zavalin, where the error was found not harmless,
5 had cerebral palsy, a learning disorder, a speech impediment that caused him to
6 speak haltingly, was deemed disabled from the age of 13, had no work history, and
7 had finished high school with a modified diploma with the help of special
8 education classes, which allowed him to work at his own pace. (Defendant’s
9 Motion at 2 (citing Zavalin, 778 F.3d at 843-44, 847)). Defendant further argues
10 that the ALJ here limited plaintiff to simple routine tasks to address her depressive
11 symptoms, but noted that depression did not prevent plaintiff from being able to
12 “read, handle her finances, drive, and follow instructions, which are activities that
13 require the ability to sustain concentration and attention.” (AR18 (citation
14 omitted), 244-47). Plaintiff is silent on the issue of harmless error. The Court
15 need not resolve whether the ALJ’s failure to resolve the apparent conflict is
16 harmless because the ALJ determined plaintiff could perform another job – Table
17 Worker – identified by the VE, as discussed below. See Meanel v. Apfel, 172
18 F.3d 1111, 1114-15 (9th Cir. 1999) (indicating that the court need not address a
19 claimant’s arguments regarding one of two jobs identified by the ALJ given that
20 one of the jobs satisfied Step Five).
21 b. Table Worker
22 Plaintiff contends that the ALJ failed to resolve an apparent conflict
23 between her RFC prohibiting her from working around “dangerous moving
24 machinery” and the Table Worker job, which requires work along a conveyor
25 belt.5 (Plaintiff’s Motion at 4-5). Specifically, plaintiff argues that the Table
26
27 5The Table Worker job requires Reasoning Level One, and plaintiff does not assert any
28 conflict regarding the reasoning level for this job. Nor does plaintiff contend that the Table
(continued...)
10
1 | Worker job “involves constant exposure to a conveyor belt” and “the job
2 || description indicates that the worker has to extend herself over the conveyor belt
3 || to replace linoleum tiles, which makes the job even more dangerous.” (Plaintiffs
4 || Motion at 4).
5 As plaintiff notes, the job description for Table Worker reads as follows:
6 || “Examines squares (tiles) of felt-based linoleum material passing along on
7 || conveyor and replaces missing and substandard tiles.” DOT 739.687-182, 1991
8 | WL 680217. Plaintiff's contention that the Table Worker job involves working
9 || around dangerous moving machinery 1s entirely speculative and belied by the
10 || DOT job description. The DOT describes the Table Worker job as requiring a low
11 || degree of finger and manual dexterity and involving no moving mechanical parts,
12 || no electric shock, no high exposed places, no radiation, no explosives, and no
13 || toxic caustic chemicals. Id. Such description does not indicate that the Table
14 || Worker job involves working around dangerous moving machinery. Thus, the
15 || VE’s testimony did not present an actual or apparent conflict with the DOT, and
16 || the ALJ properly relied on the VE’s testimony in making his step five
17 || determination that plaintiff could perform the Table Worker job. See Garcia v.
18 || Berryhill, 2017 WL 931875, at *4 (E.D. Cal. March 9, 2017) (finding no conflict
19 || with DOT where RFC precluded exposure to dangerous machinery because
20 || identified Table Worker job did not involve any exposure to hazardous working
21 || conditions); Cunningham v. Astrue, 2010 WL 4916629, at *4 (C.D. Cal. Dec. 1,
22 || 2010) (finding no conflict with DOT where RFC precluded exposure to dangerous
23 || working machinery because identified Table Worker job did not involve
24 || dangerous moving machinery).
25 Accordingly, a remand or reversal on this ground is not warranted.
26 | □□□
27 °(...continued)
Worker job does not exist in significant numbers in the national economy. At 72,000 jobs
28 || nationally, the job exists in significant numbers. See Gutierrez v. Colvin, 740 F.3d 519, 527-29
(9th Cir. 2014) (holding that 25,000 jobs nationally is a significant number).
11
1 B. Remand Is Not Warranted for Evaluation of Headache Severity
2 Plaintiff contends that the ALJ erroneously found that plaintiff's chronic
3 || headaches were not a severe medically determinable impairment at step two.
4 || (Plaintiff's Motion at 5-7). Specifically, plaintiff argues that the ALJ “ignored
5 || almost all of the evidence regarding her headaches,” including “multiple
6 || emergency room visits, different medications, and specialized treatment with a
7 || neurologist.” (Plaintiff's Motion at 6-7). A reversal or remand is not warranted
8 || on the asserted basis.
9 1. Pertinent Law
10 Step two of the sequential evaluation process functions as “a de minimis
11 || screening device to dispose of groundless claims.” Smolen v. Chater, 80 F.3d
12 | 1273, 1290 (9th Cir. 1996) (citation omitted). To proceed beyond step two, a
13 || claimant essentially must present evidence that she has a medically determinable
14 || physical or mental impairment which is severe, and which has lasted (or can be
15 || expected to last) for a continuous period of twelve months or more. 20 C.F.R.
16 || §§ 404.1520(a)(4)(i); 416.920(a)(4)(i1); see Bowen v. Yuckert, 482 U.S. 137, 148
17 || (1987); Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (citing SSR 96-3p);
18 || Averbach v. Astrue, 731 F. Supp. 2d 977, 981 (C.D. Cal. 2010) (citations omitted).
19 || An impairment should be deemed “non severe” only when the evidence
20 || establishes merely a slight abnormality that has no more than a minimal effect on
21 || an individual’s physical or mental ability to do basic work activities. Bowen, 482
22 || U.S. at 153-54 & n.11 (Social Security claimants must make “de minimis”
23 || showing that impairment interferes with ability to engage in basic work activities)
24 || (citations omitted); Webb, 433 F.3d at 686 (9th Cir. 2005) (citations omitted); see
25 || also 20 C.F.R. §§ 404.1521; 416.921. When reviewing an ALJ’s findings at step
26 || two, the district court “must determine whether the ALJ had substantial evidence
27 || to find that the medical evidence clearly established that [the claimant] did not
28 || have a medically severe impairment or combination of impairments.” Webb, 433
12
1 F.3d at 687 (citing Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) (“Despite
2 the deference usually accorded to the Secretary’s application of regulations,
3 numerous appellate courts have imposed a narrow construction upon the severity
4 regulation applied here.”)).
5 2. Analysis
6 The majority of the evidence in the record regarding plaintiff’s headaches
7 consists of plaintiff’s testimony and her subjective complaints.6 At the hearing,
8 plaintiff testified that when she used to get headaches, they lasted “[l]ike five
9 days” and they “really wipe[d] [her] out and they hurt a lot.” (AR 35). She further
10 testified that in the last month-and-a-half before the hearing, her headaches had
11 been mild because she was seeing “a really good physical therapist and they [had]
12 been working out [her] head and so that’s been really helpful.” (AR 35). The
13 record also contains treatment notes of plaintiff’s subjective complaints about her
14 headaches, which, alone, cannot show the existence of a medically determinable
15 impairment.7 (AR 996, 1002, 1096, 1545-52, 1931, 1961, 2056, 2070, 2157, 2201,
16 2227); see Ukolov v. Barnhart, 420 F.3d 1002, 1006 (9th Cir. 2005) (finding
17 portions of treatment records based solely on claimant’s own “perception or
18 description” of his problems did not support a finding of a medically determinable
19 impairment).
20 The limited objective evidence in the record regarding plaintiff’s headaches
21 either did not support a finding of a medically determinable impairment or was
22 inconclusive. A March 2015 CT of plaintiff’s head indicated no acute intracranial
23 abnormalities. (AR 1552). When plaintiff saw a neurologist for increased
24 headaches in July 2015, an examination revealed no change from the prior visit, an
25
26 6Plaintiff did not mention limitations from headaches in her disability reports or her
27 function report. (AR 230, 241-48, 263-82).
28 7The ALJ discounted plaintiff’s credibility, a finding that plaintiff does not challenge.
13
1 MRI of the brain was ordered, and plaintiff was prescribed Fiorecet as needed.
2 (AR 996). Plaintiff was assessed with tension headaches, but no diagnosis was
3 made. (AR 996). A February 2016 MRI of plaintiff’s brain indicated very mild
4 cerebral atrophy and ex-vacno dilatation of the ventricular system, and well-
5 defined T2-hyperintense focus within the subcortical white matter of the right
6 superior frontal gyrus, which could be seen in “normal patients” and those with
7 migraine headaches and mild chronic small vessel ischemic disease. (AR 2164).
8 A September 2016 CT of plaintiff’s brain indicated no acute intracranial
9 hemorrhage or mass effect. (AR 2071). A December 2016 CT of plaintiff’s brain
10 indicated no evidence of intracranial hemorrhage or mass effect, and after a
11 negative work up at the emergency room for headache, plaintiff was sent home.
12 (AR 2005, 2064, 2213). The treating source opinion contained no finding of
13 impairment due to headaches, and neither did any other medical opinion in the
14 record. (AR 45-91, 77-106, 1066-68, 1103-08). Based on the record as a whole,
15 the ALJ reasonably concluded that plaintiff’s headaches did not have more than a
16 minimal effect on her ability to work at step two. See Ukolov, 420 F.3d at 1006
17 (concluding no error at step two where medical opinions were not accompanied by
18 a finding of impairment); Diep Trac v. Colvin, 2013 WL 1498908, *6 (C.D. Cal.
19 Apr. 9, 2013) (finding no error in ALJ’s finding of a non-severe mental
20 impairment at step two where the record contained no evidence that claimant had
21 any specific functional limitations due to depression that impacted her ability to
22 work).
23 To the extent plaintiff argues that the ALJ should have more fully discussed
24 the evidence regarding plaintiff’s headaches, the argument is unavailing.8 Plaintiff
25
26 8The ALJ noted that physical therapy treatment was suspended when plaintiff presented
with complaints of headaches. (AR 20, 1006, 2166). The ALJ also noted that the treating source
27
opined that plaintiff could not complete a full workday due to cervical and lumbar degeneration.
28 (continued...)
14
1 || had the burden of proving that her headaches affected her ability to perform basic
2 || work activities, and substantial evidence supports the ALJ’s conclusion that
3 || plaintiff did not meet that burden. See Hurter v. Astrue, 465 Fed. Appx. 648, 649-
4 | 50 (9th Cir. 2012) (finding no error where ALJ failed to explicitly consider certain
5 || alleged impairments where the medical evidence provided inconclusive support
6 | that the alleged impairments affected her ability to perform basic work activities).
7 Accordingly, a remand or reversal on this ground is not warranted.
8 C. The ALJ Did Not Err in Finding That Plaintiff's Physical
9 Impairments Do Not Meet Listing 1.03
10 Plaintiff contends that the ALJ erred in finding that plaintiff's multiple
11 |) lower extremity fractures do not meet Listing 1.03. A reversal or remand is not
12 || warranted on this basis.
13 1. Pertinent Law
14 At step three of the evaluation process, the ALJ must determine whether a
15 || claimant has an impairment or combination of impairments that meets or equals a
16 || condition outlined in a listing. See 20 C.F.R. §§ 404.1520(d), 416.920(d). An
17 || impairment matches a listing if it meets all of the specified medical criteria.
18 || Sullivan v. Zebley, 493 U.S. 521, 530 (1990), superseded by statute on other
19 || grounds as stated in Kennedy v. Colvin, 738 F.3d 1172, 1174 (9th Cir. 2013);
20 || Tackett, 180 F.3d at 1098. An impairment that manifests only some of the criteria,
21 || no matter how severely, does not qualify. Sullivan, 493 U.S. at 530; Tackett, 180
22 || F.3d at 1099. An unlisted impairment or combination of impairments is
23 || equivalent to a listed impairment if medical findings equal in severity to all of the
24 | ///
25 | ///
26 |
07 ‘(...continued) . . .
(AR 21, 1066-68). The ALJ did not include plaintiff's headaches in his findings of severe
28 || impairments at step two. (AR 16).
15
1 criteria for the one most similar listed impairment are present.9 Sullivan, 493 U.S.
2 at 531; see 20 C.F.R. §§ 404.1526(b), 416.926(b).
3 Although a claimant bears the burden of proving that she has an impairment
4 or combination of impairments that meets or equals the criteria of a listed
5 impairment, an ALJ must still adequately discuss and evaluate the evidence before
6 concluding that a claimant’s impairments fail to meet or equal a listing. Marcia v.
7 Sullivan, 900 F.2d 172, 176 (9th Cir. 1990) (“[I]n determining whether a claimant
8 equals a listing under step three . . . the ALJ must explain adequately his
9 evaluation of alternative tests and the combined effects of the impairments.”).
10 Remand is appropriate where an ALJ fails adequately to consider a listing that
11
12
9Under Social Security regulations, medical equivalence can be found in three ways:
13
(1) If you have an impairment that is described in [the Listing of
14
Impairments] . . . but [¶] . . . [y]ou do not exhibit one or more of the
15 findings specified in the particular listing, or [¶] . . . [y]ou exhibit all of the
findings, but one or more of the findings is not as severe as specified in the
16 particular listing, [¶] . . . [w]e will find that your impairment is medically
equivalent to that listing if you have other findings related to your
17
impairment that are at least of equal medical significance to the required
18 criteria.
19
(2) If you have an impairment(s) that is not described in [the Listing of
20 Impairments] . . . , we will compare your findings with those for closely
analogous listed impairments. If the findings related to your
21 impairment(s) are at least of equal medical significance to those of a listed
impairment, we will find that your impairment(s) is medically equivalent
22
to the analogous listing.
23
(3) If you have a combination of impairments, no one of which meets a
24
listing . . . , we will compare your findings with those for closely
25 analogous listed impairments. If the findings related to your impairments
are at least of equal medical significance to those of a listed impairment,
26 we will find that your combination of impairments is medically equivalent
to that listing.
27
28 20 C.F.R. §§ 404.1526(b), 416.926(b).
16
1 plausibly applies to a plaintiff’s case. See Lewis v. Apfel, 236 F.3d 503, 514 (9th
2 Cir. 2001) (plaintiff must present plausible theory as to how an impairment or
3 combination of impairments equals a listed impairment).
4 In order to be considered disabled under Listing 1.03, a claimant must show
5 that she has had reconstructive surgery or surgical arthrodesis of a major
6 weight-bearing joint which results in the claimant’s “inability to ambulate
7 effectively” and claimant’s return to effective ambulation did not occur, or is not
8 expected to occur, within 12 months of onset. 20 C.F.R. Part 404, Subpart P,
9 Appendix 1, § 1.03.
10 Listing 1.00(B)(2)(b) defines “inability to ambulate effectively” as follows:
11 (1) Definition. Inability to ambulate effectively means an extreme
12 limitation of the ability to walk; i.e., an impairment(s) that interferes
13 very seriously with the individual’s ability to independently initiate,
14 sustain, or complete activities. Ineffective ambulation is defined
15 generally as having insufficient lower extremity functioning . . . to
16 permit independent ambulation without the use of a hand-held
17 assistive device(s) that limits the functioning of both upper
18 extremities. (Listing 1.05C is an exception to this general definition
19 because the individual has the use of only one upper extremity due to
20 amputation of a hand.)
21 (2) To ambulate effectively, individuals must be capable of sustaining
22 a reasonable walking pace over a sufficient distance to be able to
23 carry out activities of daily living. They must have the ability to
24 travel without companion assistance to and from a place of
25 employment or school. Therefore, examples of ineffective
26 ambulation include, but are not limited to, the inability to walk
27 without the use of a walker, two crutches or two canes, the inability to
28
17
1 walk a block at a reasonable pace on rough or uneven surfaces, the
2 inability to use standard public transportation, the inability to carry
3 out routine ambulatory activities, such as shopping and banking, and
4 the inability to climb a few steps at a reasonable pace with the use of
5 a single hand rail. The ability to walk independently about one’s
6 home without the use of assistive devices does not, in and of itself,
7 constitute effective ambulation.
8 20 C.F.R. Part 404, Subpart P, Appendix 1, § 1.00(B)(2)(b).
9 2. Analysis
10 Plaintiff argues that the ALJ’s decision is flawed based on the following:
11 (1) the ALJ failed to describe with any specificity the evidence he relied on in
12 finding that plaintiff was able to ambulate effectively and that “there was good
13 union of her lower extremity fractures;” (2) the ALJ “ignore[d]” evidence of
14 “inability to ambulate effectively,” as shown by the RFC limiting plaintiff to no
15 walking on “uneven terrain” and her use of a disabled-persons bus to pick her up
16 in front of her condominium; and (3) the listing does not require evidence of non-
17 union, but nonetheless, imaging of plaintiff’s right hip, pelvis, and left ankle has
18 shown positive findings. (Plaintiff’s Motion at 7-10). The Court disagrees.
19 At step three, the ALJ discussed whether plaintiff’s physical and mental
20 impairments met or medically equaled listings 1.03, 1.04, 11.14, 12.04 and 12.06.
21 (AR 16-18). In finding that plaintiff’s lower extremity fracture-related
22 impairments did not meet or equal Listing 1.03, the ALJ stated that although
23 plaintiff had surgery on her lower extremities following the motor vehicle accident
24 in 2006, she “was able to ambulate effectively within 12-month[s] and there was
25 good union of her lower extremity fractures.” (AR 17). The ALJ noted that after
26 plaintiff’s surgery in 2006, she worked continuously from 2008-2013. (AR 20,
27 204-05, 217). Despite being assessed with lumbosacral radiculitis, plaintiff
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18
1 presented with generally normal musculoskeletal examinations of her back and
2 lower extremities in terms of motor strength, sensation, and negative straight-leg
3 raising tests, with the general exception of tenderness of her muscles and lumbar
4 spine, and no indication of muscle atrophy. (AR 20-22, 788, 1010, 1016, 1035,
5 1932, 1934, 2025, 2028). In April 2015, a consultative examiner opined that
6 plaintiff could stand and walk six hours per eight hour work day, despite
7 examination findings of limited range of motion of the lower back, slightly
8 antalgic gait, and limited range of motion of the left ankle and right hip.10 (AR 21,
9 1107). The ALJ also noted that although he allowed for a walker for extended
10 ambulation, the record did not show that plaintiff required a walker or presented
11 using it on all occasions. (AR 22, 1103). The Court finds that the ALJ described
12 with sufficient specificity the evidence he relied on in making the determination
13 that plaintiff’s impairments did not meet Listing 1.03.11
14 Contrary to plaintiff’s argument, the ALJ did not ignore evidence of
15 “inability to ambulate effectively.” (AR 19). An RFC precluding plaintiff from
16 full-time work involving “uneven terrain” does not establish an inability to
17 ambulate effectively for purposes of Listing 1.03. See Fernandez v. Berryhill,
18 2018 WL 3322879, at *7 (C.D. Cal. July 5, 2018) (“While the ALJ precluded
19 [claimant] from jobs that require ‘walking on uneven terrain,’ that is not
20 tantamount to an ‘inability to walk a block at a reasonable pace on rough or
21 uneven surfaces’ so as to qualify [claimant] for Listing 1.03.”) (internal citation
22
23 10Two State Agency medical consultants also opined that plaintiff could stand and walk
six hours per eight hour work day, despite her impairments. (AR 55, 70, 87, 102). The ALJ
24
considered, but gave less weight to the opinions that plaintiff had the capacity for light work,
25 finding that the evidence showed that plaintiff could only perform a range of sedentary work.
(AR 21).
26
11Additionally, the ALJ found that plaintiff’s subjective symptom allegations were
27
inconsistent with the objective medical evidence and not credible, which, again, plaintiff does not
28 challenge.
19
1 omitted); see also Moreno v. Astrue, 444 Fed. Appx. 163, 164 (9th Cir. 2011)
2 (concluding that ALJ’s RFC determination that limited claimant to walking on
3 even terrain did not establish inability to ambulate effectively under the listings).
4 Nor would it make sense that plaintiff’s use of disabled transportation would
5 equate to an “inability to use standard public transportation” for purposes of
6 Listing 1.03 when plaintiff also travels by walking, driving a car, or riding in a car.
7 (AR 40, 244).
8 Finally, plaintiff fails to show that “positive findings” in imaging of her
9 right hip, pelvis, and left ankle establish that she meets or equals Listing 1.03. For
10 example, plaintiff complained of right hip pain in January 2013, but denied back
11 pain, deformity, gait abnormality, joint stiffness, joint swelling, joint warmth and
12 knee pain; plaintiff’s pelvis showed healed fractures with hip joint spaces
13 preserved in April 2015; and plaintiff presented with an Achilles tendon strain of
14 her left lower extremity in Fall 2015, but by February 2016, her lower extremity
15 examination was normal. (AR 812, 1109, 1912, 2028, 2030-37). Plaintiff’s own
16 testimony that she can ambulate without her walker except “to go long distance
17 and/or take public transportation or go somewhere that [she] won’t be able to
18 loosen,” demonstrates that plaintiff does not have the type of extreme limitation in
19 the ability to ambulate that is required in Listing 1.03. (AR 36).
20 Considering the record as a whole, plaintiff has not met her burden of
21 demonstrating that her impairments met or equaled the criteria of Listing 1.03.
22 See Bowen, 482 U.S. at 145-52 (placing burden on claimant to produce evidence
23 that his impairment meets a listing). The ALJ’s step three finding that plaintiff’s
24 impairments do not meet or equal Listing 1.03 is supported by substantial
25 evidence.
26 Accordingly, a remand or reversal on this ground is not warranted.
27 ///
28 ///
20
1 V. CONCLUSION
2 For the foregoing reasons, the decision of the Commissioner of Social
3 Security AFFIRMED.
4 LET JUDGMENT BE ENTERED ACCORDINGLY.
5
6 DATED: August 15, 2019
7 ______________/s/___________________
Honorable Jacqueline Chooljian
8
UNITED STATES MAGISTRATE JUDGE
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