Palmer v. Commissioner of Social Security Administration

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Patricia Palmer, No. CV-20-08265-PCT-SPL 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, [13] Defendant. [14] 15 At issue is the denial of Plaintiff Patricia Palmer’s Application for Social Security 16 Disability Insurance (“SSDI”) benefits by the Social Security Administration (“SSA”) 17 under the Social Security Act (“the Act”). Plaintiff filed a Complaint (Doc. 1) seeking 18 judicial review of that denial and an Opening Brief (Doc. 21). Defendant SSA filed an 19 Answering Brief (Doc. 26)1, and Plaintiff filed a Reply (Doc. 27). The Court has reviewed 20 the briefs and Administrative Record (“AR”) (Doc. 20), and it affirms the Administrative 21 Law Judge’s (“ALJ”) decision (AR at 13-23) for the reasons addressed herein. 22 I. Background 23 Plaintiff filed Applications for Social Security Disability Insurance (“SSDI”) and 24 Supplemental Security Income (“SSI”) benefits on May 17, 2017, alleging a disability 25 1 Subsequent to Plaintiff filing her Opening Brief, Defendant failed to file its Answering Brief by July 19, 2021, in accordance with LRCiv 16.1. On July 27, 2021, the Court 26 Ordered Defendant to file its Answering Brief by July 30, 2021. (Doc. 22). The same day, Defendant filed a Motion for Extension of Time, requesting to have an additional 45 days, 27 until September 2, 2021, to file its Answering Brief and the Court granted the Motion. (Docs. 23 and 24). Defendant again failed to file its Answering Brief. The Court filed a 28 second Order on September 9, 2021, Ordering Defendant to file the Answering Brief by September 13, 2021. (Doc. 25). Defendant complied with that Order. 1 beginning on September 18, 2013.2 (AR 13). Plaintiff’s SSI Application was granted. 2 (AR 54). Plaintiff’s SSDI claim was initially denied on October 18, 2017, and upon 3 reconsideration on January 4, 2018. (Id.) A hearing was held before ALJ Patricia A. Bucci 4 on November 6, 2019. (Id. at 37-84). Plaintiff was 58 years old at the time of the hearing 5 and held relevant previous employment as a bartender. (Id.) Plaintiff’s Application was 6 denied in a decision by the ALJ on December 16, 2019. (Id. at 23). Thereafter, the Appeals 7 Council denied Plaintiff’s Request for Review of the ALJ’s decision and this appeal 8 followed. (Doc. 1). 9 Plaintiff’s date of last insured for SSDI benefits was December 31, 2013. (AR 108, 10 312). Therefore, the relevant period encompasses only the period between September 18, 11 2013, Plaintiff’s alleged disability onset date, and December 31, 2013. After considering 12 the medical evidence and opinions, the ALJ evaluated Plaintiff’s disability claim based on 13 the severe impairments of obesity, fibromyalgia, and degenerative disc disease. (AR 17). 14 While the ALJ noted that Plaintiff’s severe impairments limited her ability to perform basic 15 work activities, the ALJ determined that Plaintiff had the residual functional capacity 16 (“RFC”) to perform a range of light work, including prior work as a bartender, and thus 17 was not disabled. (Id. at 22). 18 Plaintiff argues that the ALJ erred in failing to give controlling weight to the 19 opinions of her physicians, in failing to give clear and convincing reasons to discount her 20 subjective symptom testimony, and in ruling that res judicata precluded the consideration 21 of evidence from Plaintiff’s prior claim. (Doc. 21). The Commissioner argues that the 22 ALJ’s opinion is free of harmful error and must be affirmed. (Doc. 27). Plaintiff raises an 23 additional issue for the first time in her Reply, that the ALJ failed to make a step two finding 24 as to her headache impairment. (Doc. 26). The Court has reviewed the medical record and 25 will discuss the pertinent evidence in addressing the issues raised by the parties. 26 /// [27] 2 Plaintiff was previously found to not be disabled in a decision by an ALJ on September 28 17, 2013. Plaintiff appealed that decision to this Court and the decision was affirmed. Plaintiff’s new alleged onset of disability date is one day after the date of the first decision. 1 II. Legal Standards 2 An ALJ’s factual findings “shall be conclusive if supported by substantial 3 evidence.” Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019). The Court may set aside 4 the Commissioner’s disability determination only if it is not supported by substantial 5 evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 6 Substantial evidence is relevant evidence that a reasonable person might accept as adequate 7 to support a conclusion considering the record as a whole. Id. Generally, “[w]here the 8 evidence is susceptible to more than one rational interpretation, one of which supports the 9 ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947 , 10 954 (9th Cir. 2002) (citations omitted). Whether the Commissioner’s decision is supported 11 by substantial evidence “is a highly deferential standard of review.” Valentine v. Comm’r 12 of Soc. Sec., 574 F.3d 685, 690 (9th Cir. 2009). In determining whether to reverse an ALJ’s 13 decision, the district court reviews only those issues raised by the party challenging the 14 decision. See Lewis v. Apfel, 236 F.3d 503 , 517 n.13 (9th Cir. 2001). 15 To determine whether a claimant is disabled for purposes of the Act, the ALJ 16 follows a five-step process. 20 C.F.R. § 404.1520 (a). The claimant bears the burden of 17 proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett 18 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 19 the claimant is presently engaging in substantial gainful activity. 20 C.F.R. 20 §404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe” 21 medically determinable physical or mental impairment. 20 C.F.R. § 404.1520 (a)(4)(ii). At 22 step three, the ALJ considers whether the claimant’s impairment or combination of 23 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 24 of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520 (a)(4)(iii). If so, the claimant is automatically 25 found to be disabled. Id. At step four, the ALJ assesses the claimant’s RFC and determines 26 whether the claimant is still capable of performing past relevant work. 20 C.F.R. 27 § 404.1520(a)(4)(iv). If not, the ALJ proceeds to the fifth and final step, where she 28 determines whether the claimant can perform any other work in the national economy 1 based on the claimant’s RFC, age, education, and work experience. 20 C.F.R. 2 § 404.1520(a)(4)(v). If not, the claimant is disabled. Id. 3 III. Analysis 4 Plaintiff raises several issues, including one raised for the first time in her Reply. 5 The Court will address all of them in turn. 6 A. Medical Opinion Evidence 7 Plaintiff first argues that the ALJ committed harmful error when not assigning any 8 weight to her treating physicians, stating that “as this is a pre-March 2017 claim, under 20 9 CFR § 416.927 (c)(2) their opinions were entitled to great weight, indeed controlling 10 weight.” (Doc. 21 at 5). However, as Plaintiff concedes in her Reply, her Application was 11 filed on May 17, 2017. (Doc. 27). Therefore, the regulations cited and arguments made 12 by Plaintiff in her Opening Brief are obsolete. 13 Rather, as Plaintiff applied for disability benefits after March 27, 2017, the new set 14 of regulations for evaluating evidence from medical providers applies to this case. These 15 regulations eliminate the previous hierarchy of medical opinions, and the ALJ is not 16 allowed to defer to or give specific weight to any medical opinions. See 20 C.F.R. § 17 416.920c. The new regulations for considering physician opinions states as follows: [18] We will not defer or give any specific evidentiary weight, including 19 controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources . . . The most important 20 factors we consider when we evaluate the persuasiveness of medical opinions 21 and prior administrative medical findings are supportability (paragraph (c)(1) of this section) and consistency (paragraph (c)(2) of this section). We will 22 articulate how we considered the medical opinions and prior administrative 23 medical findings in your claim according to paragraph (b) of this section. 20 C.F.R. § 416 .920c.3 [24] The regulations require an ALJ to articulate how persuasive they find all the medical [25] opinions and set forth specific “articulation requirements” for the ALJ’s evaluation of the [26] 27 3 Other factors that may be considered by the ALJ in addition to supportability and consistency include the provider’s relationship with the claimant, the length of the 28 treatment relationship, frequency of examinations, purpose and extent of the treatment relationship, and the specialization of the provider. 20 C.F.R. § 416 .920c. 1 medical opinion evidence. 20 C.F.R. §§ 404 .1520c(b), 416.920(b). The Ninth Circuit has 2 not yet addressed the 2017 regulations in relation to its standards for the review of medical 3 opinions on appeal. However, what is clear is that the standards cited by Plaintiff are no 4 longer in use. 5 Here, Plaintiff acknowledges in her Reply that her argument on this issue was 6 mistaken and in error. (Doc. 27 at 6). Plaintiff does not make any other arguments related 7 to the ALJ’s consideration of her treating physicians’ opinions, does not argue that they 8 were improperly considered under the new regulations, and does not cite to the proper 9 regulations. Therefore, the Court considers this issue to be waived. 10 B. Res Judicata 11 Plaintiff next argues that the ALJ erred in finding that res judicata precluded the 12 consideration of medical records from Plaintiff’s prior claim and abused her discretion in 13 finding the medical records after the date of last insured were irrelevant. (Doc. 21 at 7-8). 14 While principles of res judicata ordinarily impose a presumption of non-disability 15 absent a change of circumstances, see Lester v. Chater, 81 F.3d 821, 827 (9th Cir. 1995), 16 the ALJ here found Plaintiff overcame the presumption by presenting new and material 17 evidence and due to the amendments to the regulations. Thus, the ALJ concluded she was 18 not bound by the prior ALJ’s decision. (AR 19-21). 19 Plaintiff argues that the ALJ “could” have examined the prior medical evidence as 20 the Commissioner’s Hearings, Appeals, and Litigation Manual (“HALLEX”) “allows” an 21 ALJ to admit prior records. (Doc. 21 at 7-8). Plaintiff does not argue that the ALJ was 22 required to consider this evidence. Moreover, Plaintiff’s many citations to the HALLEX 23 manual imply that this manual is somehow binding on the ALJ and on this Court. However, 24 as the Ninth Circuit has made clear, the HALLEX manual is not binding on the 25 Commissioner, but is simply an “internal guidance tool, providing policy and procedural 26 guidelines to ALJs and other staff members.” Moore v. Apfel, 216 F.3d 864, 868 (9th Cir. 27 2000). Consequently, the HALLEX manual “does not prescribe substantive rules and 28 therefore does not carry the force and effect of law.” Id. 1 Plaintiff has not established a legal basis for the Court to conclude that the ALJ 2 improperly limited the medical records in this case. Id. (“As HALLEX does not have the 3 force and effect of law, it is not binding on the Commissioner and we will not review 4 allegations of noncompliance with the manual”); citing Western Radio Services Co. v. 5 Espy, 79 F.3d 896, 900 (9th Cir.1996) (“we will not review allegations of noncompliance 6 with an agency statement that is not binding on the agency”). Plaintiff has not established 7 that the ALJ committed harmful error in determining to exclude her prior medical records. 8 As to Plaintiff’s argument that her medical records from after her date of last insured 9 “would not automatically be irrelevant,” Plaintiff has provided no authority showing that 10 it is harmful error for an ALJ to not consider this evidence and the Court knows of no such 11 authority. In fact, Plaintiff provides no legal authority in this paragraph of her Brief. (Doc. 12 21 at 8). There is no basis for the Court to find that the ALJ committed any error let alone 13 harmful error. 14 C. Consideration of Symptom Testimony 15 Plaintiff next argues that the evidence the ALJ excluded would corroborate her 16 subjective symptom testimony, and that the ALJ did not show by clear and convincing 17 evidence that Plaintiff was not credible. (Doc. 21 at 12). 18 An ALJ must evaluate whether the claimant has presented objective medical 19 evidence of an impairment “which could reasonably be expected to produce the pain or 20 symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028 , 1035–36 (9th Cir. 2007) 21 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc) (internal citations 22 omitted)). In evaluating a claimant’s pain testimony after a claimant produces objective 23 medical evidence of an underlying impairment, “an ALJ may not reject a claimant’s 24 subjective complaints based solely on a lack of medical evidence to fully corroborate the 25 alleged severity of pain.” Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). However, 26 the ALJ may “reject the claimant’s testimony about the severity of [the] symptoms” 27 provided that the ALJ also explains her decision “by providing specific, clear, and 28 convincing reasons for doing so.” Brown-Hunter v. Colvin, 806 F.3d 487 , 488–89 (9th Cir. 1 2015). “Throughout the five-step evaluation, the ALJ is responsible for determining 2 credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Ford 3 v. Saul, 950 F.3d 1141, 1149 (9th Cir. 2020). 4 Here, the Court has already ruled that the ALJ was within her discretion to decide 5 to not consider the previous medical evidence. Therefore, Plaintiff’s argument that the 6 properly disregarded evidence would have corroborated her symptom testimony is without 7 merit. As to the ALJ’s determination that Plaintiff’s symptom testimony was not 8 completely consistent with the medical evidence of record, the ALJ properly considered 9 evidence in the record to make this finding. 10 Plaintiff testified that she was unable to work because of back pain, carpal tunnel 11 syndrome, and that she was unable to wear shoes because of feet swelling and neuropathy 12 in her feet. (AR 58). Plaintiff also testified that her pain made it difficult to stand, walk, 13 and sit. (Id. at 19). The ALJ discussed records from the relevant period where Plaintiff 14 denied any swelling in her extremities. (Id. at 19, 463, 469). As to the Plaintiff’s 15 allegations of neuropathy in her feet, the ALJ discussed electromyogram nerve studies 16 conducted in August 2014 showing negative results in bilateral upper and lower 17 extremities. (Id. at 690). Moreover, the ALJ discussed physical examinations from the 18 relevant period which were entirely unremarkable other than tenderness in the lower back 19 and decreased range of motion. (Id. at 370, 469, 689). The ALJ noted that Plaintiff’s 20 lumbar x-rays showed mild spondylosis which could cause some pain and limitations, but 21 not to the degree Plaintiff alleged. (Id. at 19, 689). Finally, the ALJ noted that there was 22 no evidence in the record to support that Plaintiff often dropped things from her hands. (Id. 23 at 19). 24 The ALJ properly concluded that the examinations in the medical record did not 25 support Plaintiff’s claims of disabling limitations, and therefore, properly found that her 26 subjective symptom testimony was not entirely persuasive. See Thomas, 278 F.3d at 954 27 (“[w]here the evidence is susceptible to more than one rational interpretation, one of which 28 supports the ALJ’s decision, the ALJ’s conclusion must be upheld”); see also Batson v. 1 Comm’r of Soc. Sec., 359 F.3d 1190, 1190 (9th Cir. 2004) (“the Commissioner’s findings 2 are upheld if supported by inferences reasonably drawn from the record.”). The Court finds 3 that the ALJ provided specific, clear, and convincing reasons for discounting Plaintiff’s 4 symptom testimony. See Brown-Hunter, 806 F.3d at 488–89. 5 D. Issue Raised in Reply 6 In her Reply, Plaintiff choses to focus entirely on an issue not previously raised, that 7 the ALJ erred in her step two finding when not considering the Plaintiff’s headaches as a 8 serious impairment. (Doc. 27). While Plaintiff discusses headaches in relation to her 9 tonsillar ectopia, and that condition was mentioned in the Opening Brief, for the first time 10 she cites to the legal standards required for the ALJ’s step two finding and argues that the 11 ALJ committed harmful error. Id. As the Commissioner was unable to respond to this 12 argument because it is raised for the first time in the Reply, the Court will not consider it 13 and deems the issue waived. See Kim v. Kang, 154 F.3d 996 , 1000 (9th Cir. 1998) (“[The 14 Court] will not ordinarily consider matters on appeal that are not specifically and distinctly 15 argued in appellant’s opening brief.”). And while the Court may, at its discretion, permit 16 an exception to the ordinary waiver rule, see U.S. v. Ullah, 976 F.2d 509, 514 (9th Cir. 17 1992), Plaintiff has not requested one and the Court finds that it would prejudice 18 Defendant. The Court will not consider this issue. 19 IV. Conclusion 20 Plaintiff urges the Court to remand this matter for an award of benefits, arguing that 21 the ALJ’s opinion “does not require a great deal of analysis to refute, just a little bit of 22 common sense.” (Doc. 21 at 15). Not so. The Court must follow the legal standards to 23 determine whether the ALJ’s decision is based on substantial evidence. The Court finds 24 that substantial evidence supports the ALJ’s nondisability determination and that there is 25 no basis to remand this matter. Therefore, the Court finds that the ALJ did not err in her 26 decision, which is based on substantial evidence. See Orn, 495 F.3d at 630 . 27 /// 28 /// 1 Accordingly, 2 IT IS ORDERED that the decision of the ALJ is affirmed. The Clerk of Court is || directed to enter judgment accordingly and dismiss this action. 4 Dated this 9th day of November, 2021. [5] 7 United States District SJadge [28] -9-