Opinion
CV-20-00382-TUC-RM (DTF)
02-09-2022
Sandra Thomas, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Honorable D Thomas Ferraro United States Magistrate Judge.
Plaintiff Sandra Thomas (Thomas) brought this action pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3) seeking judicial review of the final decision by the Commissioner of Social Security (Commissioner), finding Thomas was not disabled. (Doc. 1.) The parties have fully briefed the issues. (Docs. 23, 24, 25.) This matter was referred to the undersigned United States Magistrate Judge for a Report and Recommendation. (Doc. 14.) As more fully set forth below, based on the pleadings and the submitted administrative record (AR), the Court recommends the District Court, after its independent review, affirm the decision of the Commissioner because the ALJ properly identified transferable skills and included sufficient reasons to discount Thomas's testimony, which were supported by substantial evidence.
I. BACKGROUND
Thomas was born in 1964 and has graduated from high school. (AR 34-35.) She managed a convenience store, worked in a call center, and was a computer systems administrator. (AR 46-47, 259-61.) 1
Thomas had a history of Chronic Obstructive Pulmonary Disease (COPD), urinary incontinence, GI symptom symptoms, and asthma prior to December 22, 2014, when she was admitted to the hospital after having a stroke. (AR 375, 385.) An echocardiogram also showed grade 1 diastolic dysfunction. (AR 375.) She reported continuing memory issues. (AR 439.) She also had multiple back surgeries. (AR 440.) In 2016, Thomas was diagnosed with Chronic Heart Failure (CHF) and sleep apnea. (AR 457.) She has also been diagnosed with depression and treated for anxiety. (AR 538.)
Thomas applied for Social Security Disability Insurance and Supplemental Security Income on August 29, 2016, and February 14, 2017, respectively. (AR 53, 63.) She alleged disability because of the following conditions: CHR, COPD, asthma, overactive bladder, depression, anxiety, sleep apnea, stroke, mild cognitive impairment with memory loss, and chronic back pain. (AR 53-54, 63-64.) The alleged onset date was amended to December 22, 2014. (AR 34.) Thomas's claims were initially denied in May 2017. (AR 73-74.)
In July 2017, Thomas's daughter, Helene Lewton, submitted a third-party function report. (AR 251.) She stated Thomas did small chores, smoked, and rested. Id. Additionally, she reported Thomas would occasionally supervise Lewton's ten-year-old child for “short times.” (AR 252.) Lewton described that Thomas was able to walk the dogs for less than ten minutes and would play fetch with them while sitting. Id. Lewton detailed that Thomas prepared food one to two times a week and that it would take up to thirty minutes for simple preparation. (AR 253.)
Thomas's claims were denied on reconsideration in September 2017. (AR 75-76.) She requested a hearing. (AR 124.) On April 24, 2019, Administrative Law Judge (ALJ) Peter Baum held an administrative hearing. (AR 32.)
At the hearing, Thomas and Vocational Expert (VE) Jeff Komar testified. (AR 32, 34, 43.) Thomas testified about her past work experience and her capabilities. (AR 34-41.) She explained she would be unable to work in her previous positions because she could not be on her feet or talk for extended periods. (AR 39, 41.) VE Komar classified Thomas's experience as follows: convenience store clerk with specific vocational preparation 2 (“SVP”) 2, convenience store manager with SVP 7, customer order clerk with SVP 4, customer service supervisor SVP 6, and IT manager position SVP 7. (AR 46-47.) VE Komar believed Thomas gained skills from her experience that would transfer without significant vocational adjustment to data entry clerk with SVP of 4, this was an exhaustive list. (AR 49-50.)
After the hearing and at the request of the ALJ, VE Komar reconsidered his testimony. (AR 300.) His conclusions remained that Thomas had skills gained as a customer order clerk that could transfer to the position of data entry clerk. Id. Specifically, VE Komar believed Thomas had gained the following transferable skills: “operation of computer and keyboard, entering information into computer, verifying accuracy of information inputted, editing/revising incorrect information, and keeping record of information entered.” Id.
On August 15, 2019, the ALJ issued the unfavorable decision. (AR 10.) The ALJ determined Thomas has not engaged in substantial gainful activity since December 22, 2014, and she had severe impairments, none of which―alone or in combination―were equal to those listed in 20 C.F.R. Part 404, Subpart P, App. 1. (AR 16-17.) The ALJ found Thomas had a residual functional capacity to perform the full range of sedentary work. (AR 18.)
The ALJ established Thomas's medically determinable impairments could reasonably be expected to cause her alleged symptoms. (AR 19.) He also stated Thomas's “statements about the intensity, persistence, and limiting effects of her symptoms” were “inconsistent because the degree of symptoms reported by the claimant is disproportionate to the objective medical evidence of record.” Id. The ALJ noted Thomas had failed to quit smoking cigarettes, thereby failing to comply with medical treatment. (AR 19-21.) The ALJ included some medical history such as the results of a six-minute walk test and arterial study. (AR 20.) The ALJ contrasted Thomas's claim she could not speak for prolonged periods with an emergency room visit where she was “able to speak in full sentences.” (AR 20 (quoting Ex. 14F/12).) The ALJ asserted Thomas was “not dependent on others to 3 perform her activities of daily living.” (AR 21.)
In the end, the ALJ gave “little weight” to Thomas's allegations and testimony “to the extent that her impairments preclude the performance of work-related activities, ” while giving her the “benefit of the doubt” about tiring if she speaks for too long. Id. The ALJ concluded Thomas's allegations were not consistent with the objective medical evidence and she had retained “the capacity to function adequately to perform many basic activities associated with work.” Id.
The ALJ resolved Thomas was unable to perform her past relevant work. Id. He then relied on VE Komar's opinion that Thomas had obtained skills during her tenure as a customer order clerk that would be sufficient, absent significant vocational adjustment, to meet the demand of a data entry clerk: “operation of computer and keyboard, entering information into computer, verifying accuracy of information inputted, editing/revising incorrect information, and keeping record of information entered.” (AR 22.) Thus, the ALJ decided Thomas was not disabled after applying Medical-Vocational Rule 201.15 because she had acquired skills from her past work that were transferable to occupations with jobs existing in significant numbers in the national economy. (AR 23-24.)
On July 10, 2020, the Appeals Council denied Thomas's request for review. (AR 1-3.) On September 6, 2020, Thomas filed a complaint challenging the ALJ's unfavorable decision. (Doc. 1.) The District Court has jurisdiction pursuant to § 405(g).
II. ISSUES ON REVIEW
Thomas raises two issues. (Doc. 23.) First, she argues the ALJ failed to properly consider whether Thomas had transferable skills. Id. at 9-10. Second, she contends the ALJ failed to provide clear and convincing reasons for discounting her symptom testimony. Id. at 12. 4
III. STANDARD OF REVIEW
Courts review only those issues raised by the party challenging the ALJ's decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). A person is disabled if their “physical or mental impairment or impairments are of such severity” that they are unable to do both their previous work and, considering their “age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists” in their immediate area, whether a specific job vacancy exists for them, or whether they would be hired if they applied for work. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
“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. §§ 405(g), 1383(c)(3). 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 ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)).
Courts 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 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 ex rel. Matney, 981 F.2d at 1019; see 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). Reviewing courts must consider the evidence supporting as well as detracting from the Commissioner's conclusion. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975). 5
Even if the ALJ made an error, courts may affirm if the error was harmless; in other words, it was “inconsequential to the ultimate nondisability determination.” Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (quoting Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)). “A reviewing court may only consider 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.'” Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018) (quoting Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014)); see Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (stating courts cannot “affirm the denial of benefits on a ground not invoked by the Commissioner in denying the benefits originally” (quoting Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir. 2001))); see also Marsh v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015).
IV. DISCUSSION
Transferable skills
Thomas argues the “skills” found by the ALJ are in fact tasks-not skills. (Doc. 23 at 9-10.) She contends these tasks can be learned in thirty days or less and are found within unskilled positions and thus cannot be considered skills. Id. at 10.
When relying on claimant's skills and their transferability, ALJs must identify the acquired skill, the occupation to which the skill may be transferred, and the evidence that the occupation exists in significant numbers in the national economy. Titles II And XVI: Work Skills and Their Transferability as Intended by the Expanded Vocational Factors Regulations Effective February 26, 1979, SSR 82-41(6). A claimant is considered to have skills when “the skilled or semi-skilled work activities [they] did in past work can be used to meet the requirements of skilled or semi-skilled work activities of other jobs or kinds of work.” 20 C.F.R. § 404.1568(d)(1). Put another way, skills are “knowledge of a work activity which requires the exercise of significant judgment that goes beyond the carrying out of simple job duties” and are “acquired through performance of an occupation which is above the unskilled level (requires more than 30 days to learn).” SSR 82-41(2)(a). They give a “special advantage over unskilled workers in the labor market” and include 6 “practical and familiar knowledge of the principles and processes of . . . [a] trade, combined with the ability to apply them in practice in a proper and approved manner.” Id.
The Social Security Administration has provided some examples of skills: “making precise measurements, reading blueprints, and setting up and operating complex machinery.” Id. Additionally, a more specific example considered a semiskilled general office clerk or administrative clerk-ordinarily proficient in “typing, filing, tabulating and posting data in record books, preparing invoices and statements, operating adding and calculating machines, etc.”-and resolved that the “clerical skills may be readily transferable to such semiskilled sedentary occupations as typist, clerk-typist and insurance auditing control clerk.” SSR 82-41(2)(d).
The transferability of the skill will “depend[] largely on the similarity of occupationally significant work activities among different jobs.” § 404.1568(d)(1). Skills are most probably transferable among jobs that require the same or lesser degree of skill, that use similar or same tools and machines, and that involve same of similar raw materials, products, processes, or services. § 404.1568(d)(2).
Here, the ALJ relied on VE Komar's conclusion that Thomas gained the following skills from her time as a customer order clerk: “operation of computer and keyboard, entering information into computer, verifying accuracy of information inputted, editing/revising incorrect information, and keeping record of information entered.” (AR 22.) The ALJ concluded these skills were transferable to data entry clerk. (AR 22-23.)
Thomas argues those are tasks associated with the position-not skills gained from the position. (Doc. 23 at 9-10.) The Commissioner points to the Dictionary of Titles (DOT) definition to show that the skills “line up with the skills required by the data entry clerk, ” a semi-skilled position. (Doc. 24 at 9.) The Commissioner also cites some district court cases (Doc. 24 at 8-9); however, they are unpersuasive because the parties were not challenging whether the designation of skill was appropriately placed, as Thomas is doing 7 here. See Song v. Saul, No. 20-CV-01110, 2021 WL 463435, at *2 (D. Nev. Feb. 9, 2021); Petite v. Colvin, No. 15-CV-543, 2016 WL 344478, at *7 (C.D. Cal. Jan. 27, 2016), aff'd sub nom. Petite v. Berryhill, 706 Fed.Appx. 342 (9th Cir. 2017); Schepps v. Comm'r of Soc. Sec., No. 12-CV-0979, 2013 WL 5348129, at *4 (E.D. Cal. Sept. 23, 2013). Nonetheless the Court agrees with the Commissioner that one or more of the described actions are skills.
Thomas does not mention whether she retains the ability to do these tasks or skills; her argument is solely that they are not skills. (Doc. 23.) This Court will only consider arguments Thomas actually raised. See Lewis, 236 F.3d at 517 n.13.
As discussed in the SSR example, clerical skills such as keyboarding or entering information can qualify as transferable skills. See SSR 82-41(2)(d). Furthermore, both revising and organizing information require judgment similar to “making precise measurements.” See SSR 82-41(2)(a); see also Jacobson v. Astrue, No. 10-cv-05251, 2011 WL 690568, at *12 (W.D. Wash. Feb. 17, 2011) (“As such, reviewing information certainly could be on par with an activity such as ‘making precise measurements,' which is one example of a skill given in the above Social Security Ruling.”).
Thus, the ALJ properly identified skills and the occupation to which they could transfer. The Court therefore recommends the District Court find the ALJ did not err here. Rejecting Thomas's Symptom Testimony
Thomas challenges the ALJ's reasons for rejecting her symptom testimony. (Doc. 23 at 12.) Thomas claimed she was unable to speak for long periods, to walk down a hall, and to perform ordinary tasks without frequent rest breaks. Id. at 5, 16.
For an ALJ to discredit a claimant's testimony they must complete a two-step analysis. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). “First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment ‘which could reasonably be expected to produce the pain or other symptoms alleged.'” Garrison, 759 F.3d at 1014 (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). The claimant need not present objective evidence of the symptom itself (e.g., pain), or of its severity. Id. (quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)). Second, if “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.'” Id. at 1014-15 (quoting Smolen, 80 F.3d at 1281). 8 The finding must be supported by substantial evidence. Tommasetti, 533 F.3d at 1039.
Here, Thomas claimed she could not speak for long periods, could not walk for extended distances, and needed frequent breaks. (AR 41, 248.) The ALJ gave “little weight” to Thomas's symptom testimony, while also giving Thomas the benefit of the doubt that she tires easily when talking for long periods. (AR 21.) The ALJ stated the statements about intensity, persistence, and limiting effects were disproportionate to the objective medical evidence. (AR 19.) The ALJ pointed to some visits and test results, specifically a test showing Thomas was able to walk 262 meters in six-minutes. (AR 19-20.) Further, the ALJ stated that, based on Lewton's third-party function report, Thomas was “not dependent on others to perform her activities of daily living.” (AR 21.) Additionally, the ALJ referenced Thomas's ongoing smoking as a failure to comply with medical treatment. (AR 19-21.)
Thomas argues the ALJ failed to provide clear and convincing reasons for discounting her testimony. (Doc. 23 at 12.) Thomas challenges the ALJ's reasoning in three ways: the inconsistencies with medical evidence are insufficient because subjective complaints may not be rejected solely because they are not fully corroborated within the medical record, id. at 15, the ALJ's statement about Thomas's daily activity is vague and factually inaccurate, id. at 14, and Thomas's failure to quit smoking is insufficient to disregard her testimony because she had attempted to stop the addictive habit multiple times and successfully reduced her intake, id. at 12-13. The Court agrees, in part, but suggests that any errors are harmless because the ALJ did provide a clear and convincing reason.
The ALJ stated Thomas's testimony was inconsistent with and disproportionate to the medical evidence. (AR 19.) The ALJ provided examples from the medical record to support the statement. (AR 19-21.) According to Thomas in her Reply Brief, the ALJ provided “a laundry list of objective findings, many of which could be interpreted multiple ways.” (Doc. 25 at 5.) She singles out the six-minute walk test the ALJ highlighted, in which Thomas was able to walk 262 meters in six minutes. Id. Thomas argues, “Because 9 the objective evidence could point to either a finding of disability or nondisability, and because objective evidence in general does not always reflect the severity of symptoms, this analysis does not answer the question of whether the ALJ appropriately discounted Ms. Thomas's symptom testimony.” Id. The Court disagrees. The six-minute walk test can be interpreted to directly contradict Thomas's testimony that she cannot walk long distances, as she walked 262 meters with no significant oxygen desaturation. (AR 527.) The ALJ properly referred to the medical record to show it was inconsistent with Thomas's testimony. (AR 19-20.) As Thomas recognizes these findings can be interpreted multiple ways, the Court cannot substitute its own judgment for that of the ALJ's and must rely on the ALJ to resolve these conflicts. See Matney ex rel. Matney, 981 F.2d at 1019; see also Batson, 359 F.3d at 1198. Thus, the Court recommends the District Court find the ALJ provided a proper reason to discredit Thomas and affirm the ALJ's finding.
The Court agrees with Thomas that the ALJ's statement regarding her daily activities is not sufficient to discredit her testimony. First, the statement is vague with no specificity: “The claimant is not dependent on others to perform her activities of daily living.” (AR 21.) The ALJ based this conclusion on the third-party function report by Lewton. (AR 21, 251.) Lewton's portrayal of her mother does not depict a self-reliant person. (See AR 251-54.) Instead, it describes a woman who needs others to prepare meals, provide transport, and finish chores. Id. at 253-54. The ALJ's general statement does not find support in the cited record. Thus, the District Court should find this was insufficient to discount Thomas's testimony. See Tommasetti, 533 F.3d at 1039. However, because the ALJ properly relied on the inconsistency of testimony with the medical record, the District Court should conclude the error was harmless. See Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009); see also Rivers v. Berryhill, 732 Fed.Appx. 511, 513 (9th Cir. 2018).
Courts within this circuit have differed on whether ALJ's should consider a claimant's lasting smoking against medical advice in evaluating the claimant's credibility. See e.g., McKenzi v. Kijakazi, No. 20-cv-0327, 2021 WL 4279015, at *10 (E.D. Cal. Sept. 21, 2021) 10 (compiles cases affirming use of failure to quit smoking to undermine plaintiffs' credibility); Kline v. Colvin, 140 F.Supp.3d 912, 921 (D. Ariz. 2015) (Plaintiff's failure to quit smoking and start exercising “does not show that his testimony about pain and fatigue is suspect. Making these lifestyle changes can be difficult for someone in good health; they are even more challenging for a person suffering” from multiple health conditions.). The Ninth Circuit has previously found that “continued smoking, despite doctors' warnings to the contrary, as a basis to discredit his credibility was harmless error.” Rivers, 732 Fed.Appx. at 513. Courts permitting continued smoking to discredit claimants have stated that claimants should receive an opportunity to explain the failure to quit smoking, especially if there has been no lack of candor about the failure; otherwise, non-compliance can only provide “limited support” to discrediting the claimant. See McKenzi, 2021 WL 4279015, at *10. Because the ALJ did provide a legitimate reason to discount Thomas's testimony, this Court recommends the District Court need not settle this issue because any error would be harmless. See Bray, 554 F.3d at 1227; see also Rivers, 732 Fed.Appx. at 513.
Based on this reasoning, the Court recommends the District Court find the ALJ properly rejected Thomas's testimony because of the inconsistency with medical evidence and find any additional errors to be harmless.
V. RECOMMENDATION
Based on the foregoing, the Magistrate Judge RECOMMENDS the District Court, after its independent review, enter an order affirming the Commissioner's final decision.
This Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Fed. R. App. P., should not be filed until entry of the District Court's judgment.
However, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the District Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a, d), 72(b). Thereafter, the parties have fourteen (14) days within which to file a response to the objections. No. reply briefs shall 11 be filed unless the District Court grants leave to do so. The Clerk of Court is directed to terminate the referral of this matter. Filed objections should bear the following case number: CV 20-00382-TUC-RM. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). 12