Opinion
CV-21-00473-JGZ (BGM)
02-27-2023
Evelyn Rodriguez, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Honorable Bruce G. Macdonald United States Magistrate Judge
Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), Plaintiff Evelyn Rodriguez (“Rodriguez”) seeks judicial review of a final decision by the Commissioner of Social Security (“Commissioner”). The matter was referred to the undersigned for Report and Recommendation and is ripe for review. (Doc. 19, 22, 23.) Based on the pleadings and the administrative record (“AR”), the Magistrate Judge recommends the District Court affirm the ALJ's finding of non-disability.
I. BACKGROUND
A. Procedural History
Rodriguez filed Title II and Title XVI, 42 U.S.C. § 1382c, Applications for Social Security disability benefits on September 21, 2015, and December 30, 2015, respectively, alleging disability beginning February 1, 2012. (Doc. 19 at 2; AR 358, 365.) Rodriguez's applications were denied initially and on reconsideration. (AR 110-122 (Title II, DIB, initial), AR 123-135 (Title XVI, DI, initial), AR 138-153 (DIB), AR 154-169 (DI) (reconsideration). On April 24, 2019, a hearing was held before an Administrative Law Judge (“ALJ”). (AR 32-57.) In a decision dated May 8, 2019, the ALJ determined Rodriguez was not disabled. (AR 170-187.) Rodriguez's request for review by the Appeals Council was granted and the matter remanded on June 19, 2020. (AR 188-192.) A second hearing was held on October 26, 2020. (AR 58-71.) The ALJ issued a second unfavorable decision dated May 4, 2021. (AR 11-31.) Rodriguez's request for review of the ALJ's May 4, 2021 decision by the Appeals Council was denied thus making the ALJ's decision final for judicial review. (AR 1-4.) See 42 U.S.C. §§ 405(g), 1383(c)(3).
B. Brief Relevant Factual History
Rodriguez was born in 1961 and was 51 years old at the alleged onset date. (AR 88.) She received a GED and completed one year of community college. (AR 35-36, AR 422.) She has past relevant work as a teacher's aide, light semiskilled work; and as a school office helper, light unskilled work (AR 24.) She has been diagnosed with the following: Major depressive disorder, recurrent, severe with psychotic symptoms, Generalized anxiety disorder, Panic disorder [episodic paroxysmal anxiety] without agoraphobia, Post-traumatic stress disorder, chronic, Obsessive-compulsive disorder, unspecified, and Borderline personality disorder (AR 1327.) She has received mental health treatment from COPE Community Services Inc. since 2014 (AR 527-639, 658-835, 837-1017, 1028-1033, 1062-1345.) According to Rodriguez's Disability Report, alleging disability onset of February 1, 2012, the following physical or mental conditions limit her ability to work: Anxiety, Bipolar, and Borderline Personality Disorder, pain or other symptoms. (AR 421.)
In April 2016 client endorsed thoughts of suicide to her therapist (AR. 672.)
1. Plaintiff's Testimony
a. Administrative Hearing
i. Initial Hearing
At the April 24, 2019 hearing, Rodriguez testified to attending the eleventh grade and earning a GED. (AR 35.) Rodriguez described her previous work to include a school office helper position she resigned from in 2012, and prior to that, a school aide position she also resigned from, both positions in New York. (AR 36.) Plaintiff moved from New York in 2013, and now lives with her daughter. (AR 37.) Plaintiff testified that her mental illness causes her anxiety around people. (AR 37.) She also testified that her daughter helped her with an online start-up business, however, Rodriguez lost money, became very depressed, and stopped. (AR 37.) Plaintiff possesses an Arizona Driver's License and sometimes helps her daughter with shopping. (AR 38-39.) Rodriguez denied any socializing. (AR 39.) She testified to traveling four or five times, on flights, first class, to New York to see her mother, and utilizing taxicabs when she arrives. (AR 40.) To relieve symptoms of depression and anxiety, she testified to going for walks, a mile in length, and an hour in duration. (AR 42.) Initially, she moved to Tucson, Arizona to be with her husband, but when he left, she testified to experiencing a “little psychotic episode,” and she lost the ability to maintain employment. (AR 44.) Rodriguez testified to experiencing occasional panic attacks, and severe migraine headaches approximately twice a month, lasting two to three days, and with both conditions requiring urgent care visits at times. (AR 44-46.)
At the time of the January 25, 2016 Application, Rodriguez was married to Nelson Rodriguez, married since November 10, 1980, now separated. (AR 358.)
ii. Hearing on Remand
On October 26, 2020, at hearing on remand, Rodriguez testified to completing the ninth grade. (AR 61.) She further testified to living with her daughter for the last seven to eight years and receiving financial help from her son and her mother. (AR 62.) Rodriguez testified to her daughter helping Rodriguez remember to take her medications. (AR 65.) Rodriguez's daughter does the grocery shopping and cooking. (AR 65, 66.) Rodriguez does the dishes about twice a month. (AR 66.) Plaintiff testified to experiencing depression (AR 63-64), anxiety (AR 64), and paranoia (AR 64-65). A Vocational Expert (“VE”) testified at the October 2020 hearing that if an individual missed work one day a week the individual would not be able to maintain competitive employment. (AR 69.) The VE opined that when an individual is off task at least one day a week greater than 20%, generally, he doesn't find [those] employees entry level or unskilled work. (AR 69.)
iii. Supplemental Hearing
At the supplemental hearing on April 21, 2021, Medical Expert (“ME”), Dr. Julian Kivowitz opined regarding Rodriguez's medically determinable impairments since February 1, 2012, date of onset as follows: depression, anxiety, and borderline personality disorder. (AR 77.) Dr. Kivowitz opined Rodriguez's limitations are “moderate” based on the “B criteria” and supported by exhibit 2F. (AR 77.) Regarding functional limitations, Dr. Kivowitz would limit Rodriguez to simple, repetitive tasks with only occasional contact with peers, the public, and supervisors. (AR 78.) The ME opined overall the evidence supported “moderate” limitations (AR 79.)
b. Administrative Forms
i. Function Report - Adult
On April 1, 2016, Plaintiff completed a Function Report-Adult. (AR 430-438.) Plaintiff reported she lives in an apartment with family. (AR 430.) Plaintiff described the limitations of her medical conditions as feeling “anxiety when around people” and she “can't get out of bed because of [her] depression sometimes.” (AR 430.) Plaintiff described her usual day as sleeping most of the day unless she goes to individual therapy, or group therapy, or occasionally goes for walks to practice mindfulness. (AR 431.) Plaintiff further reported she doesn't change her clothes and doesn't feel like showering, but her daughter reminds her to take her medications and won't go with her anywhere unless Plaintiff changes her clothes. (AR 432.) Plaintiff indicated she does not prepare meals, eats a lot of peanut butter and jelly sandwiches, and does not having the strength to cook. (AR 432.) Plaintiff sometimes does the laundry which takes approximately 1-2 hours. (AR 433.) Plaintiff explained she doesn't drive because she fears she is going to hurt someone or herself. (AR 433.) Plaintiff reported that she doesn't pay bills or maintain a savings account, but she can count change and use a checkbook. (AR 434.)
Plaintiff reported her illness affects her ability to talk, get along with others, complete tasks, concentrate, and her memory. (AR 435.) She reported having no energy, brain fog, difficulty getting along with others, and becoming embarrassed when instructions are repeated, and a difficult time being told what to do. (AR 435-436.) Plaintiff reported difficulty with stress, changes in routine creating anxiety, a fear of going out at night, and not liking her things being touched. (AR 436.) Plaintiff reported that her family doesn't understand that she can't work right now when she used to work-even with anxiety-and her daughter doesn't want to help her anymore. (AR 437.)
ii. Work History Report
On April 1, 2016, Plaintiff completed a Work History Report. (AR 439-446.) Plaintiff listed her previous work history, including positions as an office clerk for Health Life Lab, Inc; as a tutor for an after school program, as a School Aide with the Department of Education, and as a Community Associate with the Department of Education. (AR 439.)
Plaintiff described the office clerk position as part-time-three (3) to four (4) days a week-and included checking in patients and answering the telephone. (AR 440.) Plaintiff reported that the position required her to use machines, tools, or equipment, but did not require technical knowledge, skills, writing, or reports. Id. Plaintiff further reported that while working she would stand ten (10) hours a day, and write, type, or handle small objects six (6) hours a day, lifting less than ten (10) lbs. Id.
Plaintiff described the tutor position as part-time-three (3) hours per day, five (5) days a week-and included tutoring second through fifth grade students. (AR 441.) Plaintiff reported that while working she would stand three (3) hours per day, she did not supervise anyone, nor was she a lead. Id.
Plaintiff described the school aide position as part-time-four (4) hours per day, five (5) days a week-supervising children during recess and lunch, making copies, and making calls to parents regarding student absences. (AR 442.) Plaintiff reported that the position required her to stand four (4) hours per day, lift and carry school supplies, 10 lbs. or less, and required no supervisory authority or lead responsibilities. Id.
Plaintiff described the community associate position as full-time-five (5) days a week-working under the supervision of the principal, keeping track of student files, typing, mailing, and faxing correspondence letters and memos to parents and staff. (AR 443.) Plaintiff reported the position required her to use machines, tools, or equipment, writing, or completion of reports, however, did not require technical knowledge of skills. Id. Plaintiff further reported that while working she would stand three (3) hours a day, and sit three (3) hours a day, lifting less than 10 lbs., with no supervisory or lead authority. Id.
iii. Medical Treatment
In May of 2020, Plaintiff reported recent medical treatment including Dr. Bortuzzo, CMG Foothills; Dr. Mostafizi, Pimaheart; and Kathleen Oldfather, NP, Cope Community services - Lakeside. (AR 489.) Plaintiff reported, “[t]hey found nothing wrong but Oldfather said keep taking my medication.” (AR 489.) Plaintiff identified the following current medications: Lisinopril 10 mg, for high blood pressure (T. Weatherby); Risperidone, 2 mg, for stress, paranoia; Citalopram, 40 mg, for Depression, mood, anxiety; Lorazepam, 1 mg, for PTSD, anxiety (K. Oldfather); and Tylenol for migraine headaches. (AR 490.)
2. Plaintiff's Medical Records
a. Carondelet St. Joseph's Hospital
On November 19, 2014, Plaintiff presented to St. Joseph's Hospital for a sudden onset of extreme headache which started with vomiting. (AR 508-510.) Plaintiff was diagnosed with acute cephalgia by attending physician, Raquel L. Gibly, MD, and treated with IV fluids, Zofran, morphine, Ativan, and Benedryl, and sent home with Fioricet and Zofran, and directed to follow up with her doctor for further workup as needed (AR 509510.)
b. COPE Mental Health Treatment records
On December 5, 2014, Plaintiff presented to COPE for follow up from the St. Joseph's hospital visit on November 19, 2014 (AR 538.) Anna Bjorgum, BHP, NP, MS, with COPE, noted Plaintiff's history of migraines with the last one over ten (10) years ago. (AR 538.) NP Bjorgum further noted “bilateral knee pain” “due to weight” “ears both impacted with wax, chronic” also noting, Plaintiff “reunited with ex-husband 1 year ago after 12 years of separation.” (AR 538.) NP Bjorgum advised, an assessment/plan as follows: for migraine, continued meds; impacted cerumen, Debrox daily; and bilateral knee, xrays. (AR 539.)
On December 19, 2014, Kathleen Oldfather, NP, COPE, performed a psychiatric evaluation of Plaintiff who had presented with episodic migraine, onset November 16, 2014, and for evaluation of Plaintiff's childhood onset of unremitting depression and episodic anxiety, and to rule out bipolar disorder. (AR 536.) NP Oldfather reported Plaintiff's history of emotional and physical abuse by Plaintiff's Mother and Father, and Plaintiff's Father's history of heroine abuse. (AR 536.)
Beginning in December 2014, Plaintiff received regular services at COPE, including individual and group therapy (DBT skills), and medication management. (AR 535.)
In December 2014, Plaintiff's individual therapist was Kristy Schutt, BHP, LMSW, MSW, through COPE. (AR 535.)
Significantly, in April of 2016 Ms. Schutt provided walk in therapy to Rodriguez noting “[Client] endorse[d] thoughts of suicide and denie[d] any plan/intent.” (AR 672.) In June 2016, Schutt noted, “[C]lient is isolating less and continues to show motivation for making small changes in life, i.e., starting to drive again,” however, noted “client appeared anxious throughout session.” (AR 678.) In July 2016, “[Client] is making progress and beginning to drive again.” (AR 684.) Also, in July 2016, “[Client] does not feel ‘secure' in the group [ sic ] facilitators and has stopped coming to groups for that reason” and “interested to return to DBT [Group therapy]” and “[Client] appeared anxious.” (AR 688.)
Also, significant, on September 29, 2016, Lauren Erickson, BHT, with COPE, “encouraged member to stay for stand by provider appt with NP Oldfather to review increased symptoms and current medications effectiveness” noting “Member shared with provider that 3 weeks ago members daughter became very upset with member after that member reported she stopped taking all of her medication” and “member reported ‘any little thing can take me there' ‘I would walk out into traffic'” and “members need for level 2 placement.” (AR 699.) Ms. Erickson transported Plaintiff to Ocotillo. (AR 699-700.)
On October 13, 2016, a team of COPE professionals, including Lauren Erickson, BHT, included the following in their Assessment/Review of Rodriguez, “Evelyn reported that individual therapy, DBT group, case management and medication have helped improve her symptoms” and she believes “that her overall functioning has ‘gotten a little bit better' due to her engagement in her treatment services” aside from “a minor set back September of 2016 due to not taking her medication, but her [symptoms] have stabilized once again.” (AR 828.)
On December 8, 2016, Plaintiff was determined to be eligible for SMI (serious mental illness) services. (AR 655-657.)
On December 28, 2016, Kristy Schutt reported, “Writers upcoming move out of state.” (AR 730.) On January 18, 2017, “[Client] reported being in a state of depression currently” “more isolated and feeling overwhelmed in general” with “goals (currently) are to isolate less and get back to driving[.]” (AR 736.)
On February 14, 2017, Sarai Darbandi, BHT, replaced Kristy Schutt, as Plaintiff's individual therapist and, significantly, Darbandi “reported passive SI [suicidal ideation], no plan, no intent[.]” (AR 743.) At 9:30 a.m. February 27, 2017, “I've been feeling very depressed and my anxiety is high, like I have this dread, this fear and don't want to go outside.” (AR 750.) At 2:21 p.m. February 27, 2017, “member requesting transportation to St. Joseph's hospital due to increased anxiety and depression symptoms.” (AR 748.) Darbandi “transported member one-way from [ ] to [St. Joseph's hospital] due [to] member experiencing increased anxiety and depression.” (AR 748.)
In March of 2017, notes reflect, Plaintiff “reports less depressed, ‘more anxious now'.” (AR 848.) On January 4, 2018, records reflect “Writer met with member and performed welfare check” and member indicated she “was well but also depressed.” (AR 870.) April 24, 2018, “Client had asked to take a break from attendance with DBT Skills Group.” (AR 882.) On June 14, 2018, “Member reported she would like to bring her dog with her on the trip [to New York to see her son] because her dog helps reduce her anxiety.” (AR 884.) On September 10, 2018, “Member [i]nquired about receiving a letter to give to her apartment complex regarding her cat and possibly a letter for her cat to fly with her.” (AR 891.)
On January 29, 2018, COPE records reflect “FES explained that member will lose her food stamps if she is unable to provide additional information as to why member is unable to work.” (AR 872.) On January 29, 2018, NP Oldfather noted “member continues to experience delusions and paranoia; although increased, this NP feels member is not clinically stable to pursue employment at this time.” (AR 947.) COPE records throughout 2018 include many missed therapy appointments, and no call no shows, resulting in welfare checks, and telephone calls. (AR 873, 874, 875, 878, 879, 880, 881, 883, 889, 893, 894, 895.) On April 24, 2018, “Client had asked to take a break from attendance with DBT Skills Group for approximately a month.” (AR 882.) On June 14, 2018, Rodriguez inquired with COPE about paperwork for her dog regarding plans for a trip to New York, to see her son. (AR 884.) On September 10, 2018, “regarding her cat and possibly a letter for her cat to fly with her.” (AR 891.) On November 15, 2018, Plaintiff, requested to restart DBT therapy (AR 899.) On November 29, 2018, “Patient reports doing ‘good.'” (AR 901.)
On January 28, 2019, COPE provider Jaclyn Cale, BHT, BS noted, “Patient reported doing ‘good,' no med concerns or side effects and has no other questions or concerns.” (AR 903.) On January 28, 2019, COPE provider Ximena Contreras noted, “Member reports that she gets nervous or high anxiety around other people” and “wants to be able to be around others and reports that she wants to be able to communicate better” and “appeared to be in a good mood as evidenced by tone of voice and body language.” (AR 904.)
On March 20, 2019, COPE notes by Kathleen Oldfather, NP, include “‘My daughter asked if you could up my Risperidone. I told her something and she thinks I need more medicine.' Member reports she told her daughter she still thinks sometimes that she has parasites in her head. She is going to have a sleep study done” with “Quality: ‘episodic delusions'” and “Severity: ‘moderate'.” (AR 1073-1075.)
On June 3, 2019, “patient showed up with mail from SSI denying her disability” noting “functional improvement worsened” and “symptomatic improvement worsened.” (AR 1085.) On June 12, 2019, notes reflect “patient asking about a pet letter from her psych provider for an upcoming flight she has.” (AR 1086.) August 27, 2019, “patient's trip this summer ‘[w]ent ok, it was good” and “reported feeling stable in mood and anxiety.” (AR 1088.) November 18, 2019 “patient was seen regarding her blood pressure” and “depression /anxiety has been a little high since her mother has been visiting” and “currently uses sleeping and self talk as coping skills” although “appeared anxious as evidenced by lack of eye contact.” (AR 1099.)
On January 8, 2020, notes include “ROI [needs] to be signed from patient in order for NP Oldfather to write the letter to the NYC Department of health due to the letter is concerning patients care and medications from NP.” (AR 1104.) May 19, 2020 “Patient reported depression and anxiety have been well managed with medications when she is staying at home.” (AR 1112.) Plaintiff continued to miss appointments in 2020. (AR 1116, 1117.) On August 20, 2020, notes reflect, “Patient reported having issues with her daughter and having increased depression” “NP [Oldfather] then discussed adding an additional medication for patient and patient agreed.” (AR 1120.) On November 10, 2020, NP Oldfather discussed with Plaintiff, NP Oldfather “retiring, but commented willing to see next provider” and “she agreed to follow up with NP Campopiano.” (AR 1320.)
3. Examining medical records
i. Kathleen Oldfather, NP
On December 19, 2014, Plaintiff was seen by Kathleen Oldfather, NP, for a Psychiatric Diagnostic Evaluation with medical services. (AR 536.) NP Oldfather provided services to Plaintiff from December 2014 until November 2020. In addition to the Psychiatric Diagnostic Evaluation in 2014, and treatment records from December 2014 through November 2020, NP Oldfather also completed a Mental Residual Functional Capacity Assessment November 18, 2020 (AR 1206-1208).
4. Consultative exam reports
i. Gwendolyn W. Johnson, Ph.D.
On June 29, 2016, Plaintiff was referred to Gwendolyn W. Johnson, Ph.D. in conjunction with a pending claim through the Arizona Department of Economic Security. (AR 640-644.) Dr. Johnson opined, “based solely on her present levels of psychological and cognitive functioning, Ms. Rodriguez's prognosis for a successful return to the work force is estimated as good.” (AR 642.)
ii. Jeri Hassman, MD
On August 29, 2016, Plaintiff was referred to Jeri Hassman, MD, for a Physical Medicine Consultation and Statement of Ability to Do Work-Related Activities in conjunction with a social security claim. (AR 648-653.) Dr. Hassman, concluded, he did not feel the physical conditions would impose any limitations for 12 continuous months. (AR 651.)
5. Medical Expert Julian Kivowitz, M.D.'s Testimony
Dr. Kivowitz testified at the supplemental hearing on April 21, 2021, as an impartial Medical Expert, as requested by the claimant through her representative at the hearing on remand. (AR 22, 70, 77-83.) Dr. Kivowitz reviewed Plaintiff's medical records and testified as to whether Plaintiff has suffered from any medically determinable mental impairments since February 1, 2012, date of onset. (AR 77.) Dr. Kivowitz opined Plaintiff's conditions include depression, anxiety, and borderline personality disorder, with no greater than moderate functional limitations, noting the COPE exhibits, the consultative report of Dr. Gwendolyn Johnson, and the opinion of NP Oldfather, noting the inconsistencies, as support for his opinion. (AR 77-79.)
II. STANDARD OF REVIEW
The factual findings of the Commissioner shall be conclusive so long as they are based upon substantial evidence and there is no legal error. 42 U.S.C. §§ 405(g), 1383(c)(3); Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).
“The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings of the Commissioner are meant to be conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla but less than a preponderance.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The court may overturn the decision to deny benefits only “when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). This is so because the ALJ “and not the reviewing court must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Matney, 981 F.2d at 1019 (quoting Richardson v. Perales, 402 U.S. 389, 400 (1971)); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). The Commissioner's decision, however, “cannot be affirmed simply by isolating a specific quantum of supporting evidence.” Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)).
A claimant is disabled for the purpose of receiving benefits if she is unable to engage in any substantial gainful activity due to an impairment which has lasted, or is expected to last, for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. pt. 404.1505(a). “The claimant bears the burden of establishing a prima facie case of disability.” Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996).
III. ANALYSIS
A. The Five-Step Evaluation
The Commissioner employs a five-step sequential process to evaluate DIB claims. 20 C.F.R. pt. 404.1520a; see also Heckler v. Campbell, 461 U.S. 458, 460-462 (1983). To establish disability the claimant bears the burden of showing she (1) is not working; (2) has a severe physical or mental impairment; (3) the impairment meets or equals the requirements of a listed impairment; and (4) claimant's RFC precludes her from performing her past work. 20 C.F.R. § 404.1520(a)(4). At step five, the burden shifts to the Commissioner to show that the claimant has the RFC to perform other work that exists in substantial numbers in the national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). If the Commissioner conclusively finds the claimant “disabled” or “not disabled” at any point in the five-step process, she does not proceed to the next step. 20 C.F.R. pt. 404.1520(a)(4).
B. The ALJ's Decision
At step one, the ALJ determined Rodriguez had not engaged in substantial gainful activity since February 1, 2012, the alleged onset date. (AR 16.) At step two, the ALJ determined Rodriguez suffers from severe medically determinable impairments of depression, anxiety, and borderline personality disorder, that significantly limit the ability to perform basic work activities as required by SSR 85-28. (AR 17.) At step three, the ALJ determined Rodriguez did not suffer from an impairment or combination of impairments that met or equaled a listed impairment. (AR 18-19.) At step four, the ALJ determined that Rodriguez has residual functional capacity as follows:
[T]he claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: she is capable of performing simple routine tasks with no more than occasional interaction with coworkers, supervisors, and the public.(AR 20.) At step five, the ALJ determined that Rodriguez was capable of performing past relevant work as an office helper. (AR 24.)
C. Issues on Review
Rodriguez raises two issues for review. (Doc. 19 at 2.) First, Rodriguez claims the ALJ erred by failing to support analysis of opinion evidence with substantial evidence. Id. Second, Rodriguez claims the ALJ failed to articulate clear and convincing reasons to discount Ms. Rodriguez's symptom testimony. Id. The Commissioner argues against Rodriguez's claims of error. (Doc. 22.) As more fully explained below, this Court agrees with the Commissioner. Accordingly, this Court recommends that the District Judge, after independent review, affirm the decision of the ALJ.
D. Opinion Evidence
1. Nurse Practitioner, Kathleen Oldfather's Opinion
Kathleen Oldfather, NP, a Nurse Practitioner with COPE, has treated Rodriguez from 2014 until November of 2020, when NP Oldfather retired. (AR 79, AR 1205.) NP Oldfather is a Board Certified Psychiatric Mental Health Nurse Practitioner. (AR 1206.)
NP Oldfather's records from COPE include, the initial Psychiatric diagnostic evaluation on December 19, 2014, which provides, in pertinent part, patient “presents for evaluation of childhood onset of unremitting depression and episodic anxiety; and to rule out bipolar disorder”. (AR 536-537.) In December of 2016, NP Oldfather endorsed Rodriguez's application for sun tran services because “her anxiety symptoms interfere with her [ability] to drive.” (AR 825.) The COPE Administrative Records reflect Rodriguez's utilization of cab services and public transportation to and from therapy appointments.
The ALJ found NP Oldfather's opinion regarding “marked” limitations as “partially persuasive.” (AR 22.)
Plaintiff suggests, “[t]he ALJ's analysis of NP Oldfather's opinion compared with the analysis of Dr. Kivowitz' opinion is not adequately justified or based upon substantial evidence.” (Doc. 19 at 12.)
NP Oldfather's notes, just prior to her retirement, November 10, 2020, reflect “[m]edications working well overall; anxiety and depression are improved” (AR 1318) and her notes regarding “medical decision making” reflect “stable or improved” and Global Risk Assessment “Moderate.” (AR 1321.) Thereafter, on November 18, 2020, NP Oldfather provided the Mental Residual Functional Capacity Assessment (“Mental RFC”). (AR 1206.).
NP Oldfather's Mental RFC, however, opined Plaintiff suffers from “marked” limitations with an emphasis on her anxiety and ability to remember. (AR 1206.) NP Oldfather's Mental RFC, as it relates to Rodriguez's “anxiety,” is significant. NP Oldfather noted, “although symptoms have improved (from ‘severe' to now ‘moderate') this patient has overwhelming anxiety that still interferes with role function.” (AR 1206.) In Part A of the Mental RFC, NP Oldfather noted Rodriguez's diagnoses as “Major depression severe with psychosis; Generalized Anxiety disorder; Panic disorder; PTSD.” (AR 1206.) Symptoms noted in Part A of the NP Oldfather's Mental RFC, “includ[e] but [are] not limited to past history of Auditory hallucinations, ongoing panic attacks, recurrent depressive episodes, nightmares.” (AR 1206.) NP Oldfather's November 18, 2020 Mental RFC noted the following in Part B:
1) Understand, remember, or apply information: X Marked
2) Interact with others: X Marked
3) Concentrate, persist, or maintain pace: X Marked
4) Adapt or manage himself or herself: X Marked.(AR 1206) (emphasis added). NP Oldfather circled “remember” in Factor 1 of Part B, above. (AR 1206.) In Part C, NP Oldfather opined Rodriguez's symptoms would interfere with her ability to perform work-related functions “21%-50%” or “51% or more” for a majority of the findings. (AR 1207.) NP Oldfather qualified these findings with the statement, “[b]ased solely on this NP's observations and interactions with this patient during medication reviews.” (AR 1207.) NP Oldfather's findings in Part D provide:
1) Has your patient received ongoing treatment for a mental disorder for a period of at least 2 years? X yes.
2) When faced with changes in environment or demands that were not already a part of your patient's daily life:
a) Your patient has experienced exacerbation(s) of symptoms: X yes b) Your patient has experienced deterioration(s) in functioning: X yes(AR 1208.) NP Oldfather further commented in Part D, “Historically the patient has had difficulty with role function due to anxiety and depression despite medication and changes can cause her to feel overwhelmed, indecisive and interfere with her ability to process information.” (AR 1208.) Lastly, in Part E, NP Oldfather noted, “[t]he limitations opined in Parts B, C, and D have reasonably been present since: ‘childhood onset; she did not identify a month/year. If you have copies of COPE records please review psychiatric eval. from 12/19/2014.'” (AR 1208.) (see psych. eval. December 19, 2014 discussed, supra)
2. Dr. Julian Kivowitz (“ME”)
Dr. Julian Kivowitz testified at the Supplemental Hearing April 21, 2021, as a Medical Expert (“ME”), and opined “all in all, I don't think there's enough marked impairments to meet or equal a listing.” (AR 77.) Dr. Kivowitz testified regarding Rodriguez's improvement from “marked” to “moderate” (AR 79), and denied a worsening of conditions as time went on (AR 79-80), and supported this opinion by pointing to discrepancies in the longitudinal evidence, as follows, “If you go with these people, the 2F people and the 3F people then the answer is no [worsening of conditions]” but “[i]f you go with her, the nurse practitioner, the answer is yes [worsening of conditions].” (AR 80.)
Regarding the three listings considered by Dr. Kivowitz, and the rationale in support thereof, Dr. Kivowitz considered Rodriguez's Depression (“The rationale for that is 2F, 3F, 7F, 11F and 13F.”); Anxiety (“The rationale for that is 2F, 7F, 8F and 11F.”); and Borderline Personality Disorder (“The rational for that is 2F, 7F, 8F and 11F.”). (AR 77.) Notably, here, Dr. Kivowitz considered 13F for Depression, however, did not consider 13F for Anxiety or Borderline Personality Disorder. 13F is NP Oldfather's Mental RFC (AR 1206), noting “this patient has overwhelming anxiety that still interferes with role function.” (AR 1206.)
Considering Dr. Kivowitz's opinion, the ALJ stated:
The moderate functional limitations assessed by Dr. Kivowitz are consistent GAF scores of 63 in 2014 (Ex 2F/94), scores of 61 in 2015 (Ex 2F/27, 37, 51), and scores of 63 in 2016 (Ex 7F/7). Such scores are no longer used as part of mental health diagnoses in the DSM-5. Moderate limitations are also supported by subsequent mental status exam (See for example 3F/2-3 (consultative exam; 12F/13, 84, 102, 107, 110, 120, 125 (COPE)) These findings are not consistent with marked functional limitations but rather with moderate limitations. For example, mental status was reported in August 2020. The claimant denied delusions and hallucinations. She was oriented times 4. Mood was depressed. Judgment and insight were fair. There were no abnormal thoughts. Concentration was good. Memory and fund of knowledge were age appropriate. Thought processes were logical and coherent. Speech, associations, and language were normal. The claimant had no suicidal ideas. (Ex 12/124-125) Dr. Kivowitz opined that these
findings were consistent with moderate functional limitations. His opinion is given significant weight, because he had the opportunity to review the entire medical records, demonstrated his familiarity with that record, and is familiar with the Commissioner's regulations for evaluating disability.(AR 23.)
The ALJ noted Dr. Kivowitz's opinion, and his finding, that “Ms. Oldfather's opinion as to marked functional limitations to be inconsistent with the overall record, as well as Ms. Oldfather's opinion that the claimant's symptoms had improved from being severe to being moderate.” (AR 22.)
As mentioned above, Dr. Kivowitz's testimony opined, inter alia, that Rodriguez's ability to “understand and direct” and “concentrate and adapt” “all of them are moderate.” (AR 77.). Dr. Kivowitz noted that Rodriguez “should be limited to simple, repetitive tasks” and “should have only occasional contact with peers, the public and supervisors.” (AR 78.)
When questioned regarding the Paragraph C criteria regarding “serious and persistent,” Dr. Kivowitz opined “I don't think she meets the C criteria [b]ecause most of the impairments were moderate” and supported this opinion with “Dr. Johnson noted to be moderate, COPE in the initial evaluation was noted to be moderate and that's not enough to meet the C criteria.” (AR 78).
Plaintiff argues that the ALJ's analysis of NP Oldfather's opinion compared with the analysis of Dr. Kivowitz's opinion is not adequately justified or based upon substantial evidence. (Doc. 19 at 12.) Plaintiff submits further that pursuant to new rules-applied to claims filed after March 27, 2017, as this one is-eliminate any “hierarchical approach” and are instead focused on “the purpose, length, and extent of a medical source's treatment relationship with the claimant, the kinds and extent of examinations and testing performed, and the frequency of the claimant's visits” “demonstrating a medical source's knowledge and understanding of the claimant's impairments,” citing to 20 C.F.R. § 404.1520c(a) and Abramson v. Comm'r of Soc. Sec. Admin., No. CV-19-00362-TUC-RM-DTF, 2020 WL 7022260, at *4 (D. Ariz. Nov. 30, 2020). (Doc. 19 at 10.)
The Commissioner argues that the ALJ properly considered the relationship between NP Oldfather and Rodriguez, and Dr. Kivowitz's opinion because “[NP] Oldfather's opinion was inconsistent with her own findings of improved mental health (Tr. 22, citing Tr. 1206)” and citing to 20 C.F.R. § 404.1527(c)(4). (Doc. 22 at 9.) The Court agrees with the Commissioner.
Under 20 C.F.R. pt. 416.920c(a), the Commissioner “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [the claimant's] medical sources.” 20 C.F.R. pt. 416.920c(a). When evaluating the persuasiveness of a medical opinion, the most important factors are supportability and consistency. Id. at pt. 416.920c(b)(2). With respect to “supportability,” the regulations provide that “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be.” 20 C.F.R. pt. 416.920c(c)(1). With respect to “consistency,” the regulations provide that “[t]he more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” Id. at pt. 416.920c(c)(2). The ALJ must articulate her consideration of the medical opinion evidence, including how persuasive she finds the medical opinions in the case record. Id. at pt. 416.920c(b). The ALJ must explain how she considered the “supportability” and “consistency” factors for a medical source's opinion. Id. at pt. 416.920c(b)(2). Where “the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Tackett, 180 F.3d at 1098 (citing Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992)); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007).
This Court agrees with the Commissioner that the ALJ's discussion of Dr. Kivowitz's opinion is persuasive as it relates to NP Oldfather's opinion, particularly given that NP Oldfather's opinion of “marked” limitations in the November 16, 2020 Mental RFC (AR 1205-1208.) is inconsistent with NP Oldfather's own findings of “moderate” and “improved” as indicated in her November 10, 2020 Progress Notes, just six (6) days prior (AR 1320).
Additionally, this Court notes that the length of treatment relationship and frequency of examinations, while factors that may be considered, are factors that are separate from the supportability and consistency factors. See 20 C.F.R. pt. 416.920c(c) (factors include: (1) supportability; (2) constancy; (3) relationship with the claimant, including the length of treatment relationship and the frequency of examinations).
This Court finds the ALJ's reliance on Dr. Kivowitz's testimony at the supplemental hearing, reasonable, given the support by the record, including consistencies with NP Oldfather's November 10, 2020 notes with the following findings regarding Rodriguez:
Medical Decision Making
Assessment: “Medication currently effective, well tolerated: her mood has improved since last appointment.”
Problem 1 F33.3 (Major depressive disorder, recurrent, severe with psychotic symptoms) Problem Established problem (to examining physician); “stable or improved” Plan “No medication change.” [. . .]
Problem 2 F41.1 (Generalized anxiety disorder)
Problem Established problem (to examining physician); “stable or improved”
Plan “Per problem 1”
Problem 3 F60.3 (Borderline personality disorder)
Problem Established problem (to examining physician); “stable or improved”
Plan “Encourage therapy support if needed” ...
Global Risk Assessment: “Moderate:” [. . .](AR 1320-1321.) (emphasis added).
NP Oldfather's finding of a “moderate” global risk assessment in the November 10, 2020 notes (AR1320-1321) and NP Oldfather's findings of improvement from “severe” to “moderate” in the Mental RFC (AR 1206) (despite the “marked” impairment in Part B), is consistent with Dr. Kivowitz's finding of “moderate” limitations at the supplemental hearing (AR 77) and the ALJ's finding giving Dr. Kivowitz's opinion significant weight. (AR 23.)
The ALJ found the residual functional capacity “supported by ongoing behavioral health treatment, two consultative exam reports, the opinion of Dr. Julian Kivowitz, and the review provided by the State agency.” (AR 23.)
Plaintiff suggests Dr. Kivowitz “did not appear to understand the application of the “C” criteria of the Listings.” (Doc. 19 at 18.) The ALJ found “Dr. Kivowitz further opined that the claimant's impairments did not meet the paragraph “C” criteria, again citing to evidence of no more than moderate functional limitations.” (AR 22.) The ALJ further found, “[t]he moderate functional limitations assessed by Dr. Kivowitz are consistent [with] GAF scores of 63 in 2014 (Ex 2F/94), scores of 61 in 2015 (Ex 2F/27, 37, 51), and scores of 63 in 2016 (ex 7F/7).” (AR 23.)
3. Dr. Gwendolyn Johnson (Consultative)
Consultative examiner Dr. Johnson's “diagnostic impression was depressive disorder, not otherwise specified, and a GAF of 65, indicating mild symptoms. (Ex 3F).” (AR 23, AR 642.) Plaintiff submits, however, the ALJ “did not adopt” Dr. Gwendolyn Johnson's opinion. (Doc. 19 at 18.) However, the ALJ gave Dr. Johnson's assessment “partial weight.” (AR 23.) The ALJ also noted that “Dr. Johnson supported her opinion with evid4nce of a depressive disorder likely aggravated by psychosocial stressors.” (AR 23.)
The Court finds the ALJ's reliance on-Dr. Kivowitz's opinion, supported by Dr. Johnson's findings, and consistent with a majority of NP Oldfather's opinions as to moderate limitations-is supported by substantial evidence without legal error. As an example, the Court notes that records from Kathleen Oldfather, NP, dated March 20, 2019, with Plaintiff reporting “thoughts of having parasites in her head,” also reflects NP Oldfather noting a Global Risk of “Moderate.” (AR 1073-1074.) “The purpose, length, and extent” of NP Oldfather's relationship with Plaintiff establishes, the knowledge and understanding of the claimant's impairments under Abramson, supra. Dr. Kivowitz's determination of “moderate” limitations is consistent with the majority of NP Oldfather's notes, and consistent with the ALJ's determination, supported by substantial evidence, as indicated by the ALJ's opinion at ¶ 23. Under Matney, supra, the ALJ, not the Court, must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.
E. Plaintiff's Symptoms
Plaintiff asserts that “[t]he ALJ has failed to identify any reasons supported by substantial evidence for disregarding Ms. Rodriguez' symptom allegations.” (Doc. 19 at 24.) Defendant counters “[t]he ALJ gave good reasons for finding Plaintiff's subjective complaints not entirely consistent with the record (Tr. 18-22).” (Doc. 22 at 17.) The Court agrees with Respondent.
1. Legal Standard
An ALJ must engage in a two-step analysis to evaluate a claimant's subjective symptom testimony. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, “a claimant who alleges disability based on subjective symptoms ‘must produce objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged[.]'” Smolen v. Chater, 80 F.3d 1273, 128182 (9th Cir. 1996) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc) (internal quotations omitted)); see also Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014). Further, “the claimant need not show that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of the symptom.” Smolen, 80 F.3d at 1282 (citations omitted); see also Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). “Nor must a claimant produce ‘objective medical evidence of the pain or fatigue itself, or the severity thereof.'” Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014) (quoting Smolen, 80 F.3d at 1282). “[I]f the claimant meets this first test, and there is no evidence of malingering, ‘the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.'” Lingenfelter, 504 F.3d at 1036 (quoting Smolen, 80 F.3d at 1281); see also Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014) (rejecting the contention that the “clear and convincing” requirement had been excised by prior Ninth Circuit case law). “This is not an easy requirement to meet: ‘The clear and convincing standard is the most demanding required in Social Security cases.'” Garrison, 759 F.3d at 1015 (quotingMoore v. Comm 'r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)).
2. ALJ findings
The ALJ acknowledged the two-step process for assessing Plaintiff's symptom testimony. (AR 20.) The ALJ went on to review the medical records and weigh the opinion evidence and testimony of certain medical professionals (AR 20-23.) In discounting Rodriguez's symptom testimony the ALJ determined:
[Claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.(AR 20.) The ALJ further found, Rodriguez's “severity of symptoms is not fully supported by the reports of mental status and the claimant's activities in being able to attend individual and group therapy sessions, attend church, and in so doing, interact with others.” (AR 22.)
The ALJ is allowed to consider whether a “claimant's statements concerning the intensity, persistence and limiting effects of [her] symptoms are not entirely consistent with the medical evidence and other evidence in the record.” Mitchell v. Saul, 2021 WL 3032667, at *8 (D. Nev. July 16, 2021) (alteration in original). “[T]he ALJ is not ‘required to believe every allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).'” Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012), superseded by regulation on other grounds (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). “A claimant's subjective symptom testimony may be undermined by ‘an unexplained, or inadequately explained, failure to . . . follow a prescribed course of treatment. While there are any number of good reasons for not doing so, a claimant's failure to assert one, or a finding by the ALJ that the profferred [sic] reason is not believable, can cast doubt on the sincerity of the claimant's pain testimony.'” Trevizo v. Berryhill, 871 F.3d 664, 679 (9th Cir. 2017) (alteration in original) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).
Here, the ALJ did not make a finding or evidence of malingering and provided a rational interpretation of the objective medical evidence and notes of treatment providers, which were inconsistent with Plaintiff's subjective complaints. See Mitchell, 2021 WL 3032667, at *8. Plaintiff “bears the burden of proving that an impairment is disabling.” Miller v. Heckler, 779 F.2d 845, 849 (9th Cir. 1985) (citations omitted).
Non-severity Findings
Plaintiff submits regarding the analysis of the ALJ's “B criteria of the12.00 Listings, the ALJ discussed several reasons for finding the intensity, persistence, and limiting effects of Ms. Rodriguez' symptoms less severe than alleged. AR 18-19” and in the domain of understanding, or applying information, the ALJ cited mental status exams showing generally intact cognition and memory, however, Plaintiff submits the ALJ “neglected to mention that Ms. Rodriguez' providers adjusted her medications multiple times to address cognitive difficulties. AR 778.” (Doc. 19 at 20-21.)
“To establish whether [s]he qualifies for benefits, [Plaintiff] has the burden of proving an ‘inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months.” Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193-94 (9th Cir. 2004) (quoting 42 U.S.C. § 423(d)(1)(A)). “A severe impairment is one that affects an individual's ability to perform basic work-related activities[.]” SSR 16-3p, 2017 WL 5180304, at *11. “At step 2 of the sequential evaluation process, [SSA] determine[s] whether an individual has a severe medically determinable physical or mental impairment or combination of impairments that has lasted or can be expected to last for a continuous period of at least 12 months[.]” Id. “The mere existence of an impairment is insufficient proof of a disability.” Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993).
The ALJ relied on the absence of medical records from 2012 to 2014 to support a reduced credibility determination, for Rodriguez's alleged February 1, 2014, date of onset. (AR 20.) The medical records reflect that Rodriguez's psychiatric treatment began-after a hospital visit to St. Joseph's in November of 2014, due to severe headaches (AR 538)- when Kathleen Oldfather, NP, performed a psychiatric diagnostic evaluation on December 19, 2014. (AR 536.) NP Oldfather continued treating Rodriguez until November 2020, when NP Oldfather retired. (AR 1205, 1320.) In February of 2021, David Campopiano, NP, followed up with Rodriguez in NP Oldfather's absence. (AR 1327.)
The ALJ's finding of the absence of medical records between February 2012, Rodriguez's alleged onset date, and November 2014, when the medical records begin, is supported by the Administrative Record. If Rodriguez was experiencing limiting conditions that prevented her from working, e.g. depression, and anxiety, in 2012, it was not until 2014 that she sought treatment at the hospital for her symptoms of headaches. The Court finds the absence of medical records is a specific, clear and convincing reason the ALJ to apply a reduced credibility determination, noting “[t]he claimant's onset date in 2012 is not fully supported, as behavioral health treatment records do not begin until 2014.” (AR 20.)
In addition, the ALJ found “[h]ere, the conclusion that the claimant's impairments do not satisfy the paragraph “C” criteria is supported by the record review and testimony of the impartial medical expert. The record demonstrates the claimant's ability to live in a family home with others. She reported her ability to handle activities of daily living independently. She reported enjoying things such as cooking and going to church. She independently attended individual and group therapy sessions and medication management appointments.” (AR 19.)
The Court finds the ALJ's reliance on the record review and testimony of the impartial medical expert and Plaintiff's ability to handle daily living, in finding claimant's impairments do not satisfy paragraph “C” criteria is specific, clear and convincing reasons for finding the intensity, persistence, and limiting effects of Ms. Rodriguez' symptoms less severe than alleged.
Under the Paragraph “C” criteria, specifically C2,
“Marginal adjustment” means that your adaptation to the requirements of daily life is fragile; that is, you have minimal capacity to adapt to changes in your environment or to demands that are not already part of your daily life. We will consider that you have achieved only marginal adjustment when the evidence shows that changes or increased demands have led to exacerbation of your symptoms and signs and to deterioration in your functioning; for example, you have become unable to function outside of your home or a more restrictive setting, without substantial psychosocial supports[.]20 C.F.R. § Pt. 404, Subpt. P, App. 1.
Notably, Plaintiff possesses an Arizona Driver's License, and as noted herein successfully arranged for at least four (4) trips to New York to visit her mother, and or son, which included arrangements for her dog, and or cat, to travel with her. (AR 40.) This is an example of Plaintiff's ability to adapt to changes in environment or demands that are not already part of her daily life.
The ALJ's decision to reject the severity of Plaintiff's symptom testimony and evaluate Plaintiff's mental disorders under Paragraph B rather than Paragraph C is supported by specific, clear, and convincing reasons for doing so as noted in the opinion (AR 23) (Ex 1A, 2A, 5A, 6A, 9A, 10A). Lingenfelter, supra.
IV. CONCLUSION
Based on the foregoing, the Court finds the ALJ did not err, Plaintiff failed to meet her burden to demonstrate that she had severe mental and physical impairments sufficient to qualify her for disability. As such, the ALJ's decision should be affirmed.
V. RECOMMENDATION
For the reasons delineated above, the Magistrate Judge recommends that the District Judge enter an order DENYING Plaintiff's Opening Brief (Doc. 19) and AFFIRMING the Commissioner's decision.
Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2), Federal Rules of Civil Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). No replies shall be filed unless leave is granted from the District Judge. If objections are filed, the parties should use the following case number: CV-21-00473-TUC-JGZ.
Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review.