Opinion
CV 23-02066 RAO
07-30-2024
LISETTE M., Plaintiff, v. MARTIN J. O'MALLEY,[1] Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
ROZELLA A. OLIVER UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
Plaintiff Lisette M. (“Plaintiff”) challenges the Commissioner's denial of her period of disability and applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). For the reasons stated below, the decision of the Commissioner is AFFIRMED.
Plaintiff's name is partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States.
II. SUMMARY OF PROCEEDINGS
Plaintiff applied for SSI on April 20, 2021, and for period of disability and DIB on May 4, 2021, alleging disability as of March 23, 2021, on both applications. (AR 92, 213-16.) Her applications were denied initially on September 9, 2021, (AR 74, 90), and upon reconsideration on January 6, 2022 (AR 106, 124). At Plaintiff's request, a telephonic hearing before an administrative law judge (“ALJ”) took place on August 29, 2022. (See AR 40-73.)
The ALJ followed the familiar five-step sequential evaluation process for determining disability. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since March 23, 2021. (AR 19.) At step two, the ALJ determined Plaintiff had multiple severe impairments: cervical spine degenerative disc disease, status post fusion surgery; cervical spine radiculopathy; bilateral occipital neuralgia; chronic pain syndrome; headache; lumbar spine degenerative disc disease; psoriasis; polyarthritis; psoriatic spondylitis; and right rotator cuff syndrome. (AR 19-20.) At step three, the ALJ concluded that Plaintiff did not have any impairments or combination thereof that meets the severity of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (AR 23.) The ALJ also assessed that Plaintiff had the residual functional capacity (“RFC”) to perform light work except she is frequently able to climb ramps or stairs; may occasionally climb ladders, ropes, or scaffolds; can frequently balance, stoop, kneel, crouch, and crawl; can frequently push and pull with the bilateral upper extremities; and can frequently finger, handle, feel, and reach with the bilateral upper extremities. (AR 20-23.) At step four, the ALJ found Plaintiff could perform past relevant work as a customer complaint clerk, which does not require performing work-related activities precluded by her RFC. (AR 33.) Accordingly, the ALJ concluded Plaintiff was not under disability. (AR 34.)
The Appeals Council denied Plaintiff's request for review on September 27, 2023. (AR 1-6.) Plaintiff filed suit challenging the Commissioner's decision on October 10, 2023. (Dkt. No. 1.) The parties filed their respective briefs for the Court's consideration. (See generally Dkt. Nos. 11 (“Pl. Brief”), 13 (“Comm'r Brief”), 14 (“Pl. Reply”).)
III. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. A court must affirm an ALJ's findings of fact if they are supported by substantial evidence, and if the proper legal standards were applied. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). “Substantial evidence . . . is ‘more than a mere scintilla[,]' . . . [which] means-and means only-‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Biestek v. Berryhill, 587 U.S. __, 139 S.Ct. 1148, 1154, 203 L.Ed.2d 504 (2019) (citations omitted); Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017).
“[T]he Commissioner's decision cannot be affirmed simply by isolating a specific quantum of supporting evidence. Rather, a court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the Secretary's conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (citations and internal quotations omitted). “‘Where evidence is susceptible to more than one rational interpretation,' the ALJ's decision should be upheld.” Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)); see also Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (“If the evidence can support either affirming or reversing the ALJ's conclusion, we may not substitute our judgment for that of the ALJ.”). The Court may review only “the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (citing Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)).
IV. DISCUSSION
Plaintiff raises two issues for review: (1) whether the ALJ properly considered the applicability of Listing 14.09, and (2) whether the RFC assessment properly accounted for Plaintiff's intractable headaches. (Pl. Brief at 2.)
A. Applicability of Listing 14.09
Plaintiff argues that her impairments meet Listing 14.09 because medical records show “inflammatory arthritis has affected her joints to at least a moderate level of severity.” (See Pl. Brief at 2-7.) The Commissioner argues Plaintiff never raised Listing 14.09 at the administrative level and therefore cannot argue it now, and in any event, the ALJ properly found Plaintiff did not meet that listing. (Comm'r Brief at 1-7.)
1. Applicable Law
An ALJ must evaluate the relevant evidence before she concludes that a claimant's impairments do not meet or equal a listed impairment. See Lewis, 236 F.3d at 512. The ALJ must adequately explain “why certain medical evidence of record and/or the combined effects of the claimant's impairments did not equal the Listing in question.” Hamilton v. Astrue, No. 08-1843, 2010 WL 3748744, at *4 (C.D. Cal. Sept. 22, 2010). However, the lack of a formal analysis does not constitute reversible error where “the ALJ's subsequent discussion of the relevant medical evidence supports a conclusory Step Three finding; and with respect to equivalency, the claimant fails to proffer a theory or evidence showing that his combined impairments equal a Listing.” Lewis, 236 F.3d at 513-14; see Chadwell v. Astrue, No. 11-568, 2011 WL 4386855, at *5 (C.D. Cal. Sept. 20, 2011).
2. Analysis
Here, the ALJ reasonably found that Plaintiff's impairments did not meet Listing 14.09 because clinical and diagnostic exams did not record findings the same as or medically equivalent to the listing, which requires “an inability to perform fine and gross movements effectively on a sustained basis.” Heather O. v. Berryhill, No. 18-513, 2019 WL 1922524, at *5-6 (D. Or. Apr. 30, 2019) (requiring claimant show an “extreme (very serious) limitation” to meet Listing 14.09) (internal quotation marks omitted). (But cf. Pl. Brief at 4 (“Plaintiff's inflammatory arthritis has affected her joints to at least a moderate level of severity.”), 5 (same).) The ALJ noted, and medical records show, that Plaintiff generally exhibited well-preserved fine and gross manipulations at the hands and normal five over five motor strength at the upper extremities. (AR 31 (citing Exh. 3F).) Doctors also documented unremarkable findings with respect to range of Plaintiff's upper extremities, including X-ray findings, and normal motor strength. (AR 23-24, 26-27, 31); see Chadwell, 2011 WL 4386855, at *6.
Plaintiff's argument about being “consistently . . . diagnosed” with several forms of arthritis is unavailing. Plaintiff must satisfy all of the requirements of the Listing. See Heather O., 2019 WL 1922524, at *5 & n.3. (“To meet or equal Listing 14.09 Plaintiff[] must still satisfy the requirements of 14.00(D)(6)(e)(i), namely her impairments result in an inability to perform fine and gross movements effectively.”) Her recitation of medical findings favorable to a disability finding is similarly unpersuasive because the ALJ's decision, which is reasonable, must be upheld even where another reasonable interpretation of the evidence exists. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999).
Lastly, the Court disagrees with the Commissioner that Plaintiff did not raise the listing in the administrative process because Plaintiff provided ample medical evidence of inflammatory arthritis that the ALJ actually considered. (See, e.g., AR 25 (noting nonspecific erosions in her right hand and moderate-sized erosions in her left hand common to inflammatory arthritis, and moderate to severe degenerative changes of the interphalangeal joint of the thumb); see also, e.g., AR 24, 28-30, 3233 (noting Plaintiff's complaints of joint pain and swelling).) That Plaintiff did not explicitly say, “Listing 14.09(B)” does not mean it was not raised. See also Celaya v. Halter, 332 F.3d 1177, 1182-83 (9th Cir. 2003) (stating an ALJ should have raised obesity in its discussion because it was raised implicitly in the claimant's report of symptoms, “it was clear from the record that [the impairment] was at least close to the listing criterion, and the ALJ's responsibility to fully and fairly develop the record is heightened when a claimant is unrepresented”); Sims v. Apfel, 530 U.S. 103, 107 (2000) (citing Silveira v. Apfel, 204 F.3d 1257 (9th Cir. 2000)); Kokal v. Massanari, 163 F.Supp.3d 1122, 1129 n.4 (N.D. Cal. 2001).
B. RFC Assessment
Plaintiff argues her RFC does not account for her intractable headaches and that seeking additional treatment for them would be futile. (See generally Pl. Brief at 7-11; Pl. Reply at 2-3.) The Commissioner argues that because the ALJ properly found Plaintiff did not seek treatment at a level consistent with the severity of her symptoms, headache-associated limitations were not required to be in the RFC. (See Comm'r Brief at 7-8.) The Court agrees with the Commissioner.
1. Applicable Law
“In determining a claimant's RFC, an ALJ must consider all relevant evidence in the record including, inter alia, medical records, lay evidence, and the effects of symptoms, including pain, that are reasonably attributed to a medically determinable impairment.” Robbins, 466 F.3d at 883. An RFC should reflect the claimant's ability to engage in sustained work activities, accounting for mental and physical limitations brought on by impairments. See Reddick v. Chater, 157 F.3d 715, 724 (9th Cir. 1998).
2. Analysis
Here, the determined RFC accounts for all of Plaintiff's impairments because the ALJ made an adverse credibility finding as to Plaintiff's testimony about her headaches, which was then used to formulate the RFC. (See AR 29.) Specifically, Plaintiff “failed to seek treatment in a manner consistent with the alleged complaints[,] the case record is devoid of evidence of persistent attempts to obtain relief of symptoms, such as increasing dosages and changing medications, trying a variety of treatments, referrals to specialists, or changing treatment sources.” (Id.) Even when Plaintiff was assessed with headache and bilateral occipital neuralgia in June 2021, she did not seek additional medical treatment or offer a “sufficient explanation for not seeking treatment consistent with the degree of subjective complaints.” (Id.; AR 32.)
Plaintiff's assertion that the alleged absence of treatment is an insufficient reason to exclude from her RFC any limitations for her headaches, (Pl. Brief at 10), is unpersuasive because aside from self-reports of the existence of headaches (e.g., AR 631), Plaintiff provides no persisting evidence of headache-related limitations, like blurred vision or sensory changes (Comm'r Brief at 8). (See, e.g., AR 403, 413, 447, 455, 568, 571, 573, 633, 635, 637, 639, 829-31, 834, 844.) But see, e.g., Kimberlee A. F. v. Kijakazi, No. 21-02290, 2022 WL 4349036, at *1-2 (N.D. Cal. Sept. 19, 2022) (“[T]he migraines affect all of her sensory systems (including making her intolerant to light, nose, and odors).”); Miller v. Astrue, No. 09-01871, 2011 WL 671752, at *3 (D. Ariz. Feb. 17, 2011) (reporting severe migraine headaches accompanied with nausea, vomiting, light and sound sensitivity, exertional increase, problematic dizziness, and blurred vision). In fact, most of her hearing testimony focused on other impairments, and not the headaches. (AR 49-50.) Plaintiff further provides no evidence supporting her claim that the RFC should have accounted for off-task behavior, additional breaks, or absenteeism, nor does the Court find any. (See Pl. Brief at 11; see also AR 20-23 (recording only mild limitations in concentrating, persisting, or maintaining pace, and her abilities to perform activities within a schedule, maintain regular attendance, and complete a normal workday).) Because the ALJ properly rejected Plaintiff's testimony about the severity of her symptoms, she was not required to include headache-specific limitations in Plaintiff's RFC. See Candy G. v. Comm'r, Soc. Sec. Admin., No. 23-0007, 2023 WL 8433169, at *3-4 (D. Or. Dec. 5, 2023) (“[T]he ALJ is not required to provide a function-by-function analysis of subjective symptoms not supported by the record.” (citing Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005))). Cf. Bennett v. Berryhill, No. 18-00858, 2019 WL 2410670, at *6-7 (E.D. Cal. June 7, 2019).
The remainder of Plaintiff's arguments revolve around the existence of continuous diagnoses of intractable or constant headaches, (Pl. Brief at 9 (citing AR 745-46, 775-76)), which do not automatically demonstrate her inability to engage in basic work activities. See, e.g., Ralph E. A. v. Kijakazi, No. 20-01850, 2022 WL 22339424, at *6 (C.D. Cal. Mar. 21, 2022) (citing Kaminski v. Kijakazi, 856 Fed. App'x 735, 736 (9th Cir. 2021) and Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993)); Braeger v. Astrue, No. 11-01931, 2012 WL 4985103, at *6 (E.D. Cal. Oct. 17, 2012). Further, the record does not reflect that Plaintiff pursued treatment for or management of the headaches to the extent one would expect for headaches as severe as she alleges-for example, visiting a headache specialist (see AR 812, 853), or receiving Botox injections. See, e.g., Sheridan v. Colvin, 630 Fed. App'x 695, 697 (9th Cir. 2015) (noting claimant regularly visited doctors for her headaches, including a headache specialist); Hari K. S. v. Kijakazi, No. 20-2297, 2022 WL 17079055, at *4 (C.D. Cal. Mar. 7, 2022) (noting claimant received occipital nerve blocks and Botox injections); Best v. Comm'r of Soc. Sec. Admin., No. 21-8021, 2022 WL 227094 (D. Ariz. Jan. 26, 2022) (noting claimant received Botox injections for intractable migraine headaches); Strengberg v. Colvin, No. 14-2623, 2016 WL 2349092, at *3 (C.D. Cal. May 3, 2016); Rubenstein v. Astrue, No. 11-02457, 2012 WL 3704695, at *3 (D. Ariz. Aug. 28, 2012) (noting that claimant met with a “fellowship-trained headache medicine specialist” numerous times for moderate to severe headaches).
V. CONCLUSION
IT IS ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner of Social Security.
IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties.
NOTICE
THIS DECISION IS NOT INTENDED IN WESTLAW, LEXIS/NEXIS, OR ANY OTHER LEGAL DATABASE.