Opinion
3:23-cv-00298-HL
04-12-2024
AUDREY G.,[1] Plaintiff, v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.
FINDINGS AND RECOMMENDATION
ANDREW HALLMAN UNITED STATES MAGISTRATE JUDGE
Plaintiff Audrey G. brings this action under the Social Security Act (the “Act”), 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security (“Commissioner”). The Commissioner denied plaintiff's application for Disability Insurance Benefits (“DIB”) under Title II of the Act. 42 U.S.C. § 401 et seq. For the following reasons, the decision of the Commissioner should be AFFIRMED.
STANDARD OF REVIEW
42 U.S.C. § 405(g) provides for judicial review of the Social Security Administration's disability determinations: “The court shall have power to enter . . . a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” The court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation omitted). The court must weigh “both the evidence that supports and detracts from the [Commissioner's] conclusion.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). “Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's.” Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted); see also Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (holding that the court “must uphold the ALJ's decision where the evidence is susceptible to more than one rational interpretation”). “[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quotation omitted).
BACKGROUND
I. Plaintiff's Application
Plaintiff alleges disability based on extreme pain in her hands, lack of energy, pain in her right hip, pain in her right hand, stomach issues, and “C diff.” Tr. 68. At the time of her alleged onset date, she was 54 years old. Tr. 67. She has completed high school and has past relevant work as a service clerk. Tr. 24, 43.
Citations to “Tr.” are to the Administrative Record. (ECF 12).
Plaintiff protectively applied for DIB on June 24, 2020, alleging an onset date of September 14, 2016. (Tr. 68. Her application was denied initially on December 3, 2020, and on reconsideration on May 4, 2021. Tr. 83-84, 102-03. Plaintiff subsequently requested a hearing, which was held on November 16, 2021, before Administrative Law Judge (“ALJ”) Helen Valkavich. Tr. 31. Prior to the hearing, plaintiff amended her alleged onset date to September 17, 2019. Tr. 282. Plaintiff appeared and testified at the hearing, represented by counsel. Tr. 33-65. A vocational expert (“VE”), Jack Patton, also testified. Tr. 56-63. On May 4, 2022, the ALJ issued a decision denying plaintiff's claim. Tr. 25. Plaintiff requested the Appeals Council review ALJ Valkavich's decision, which was denied on December 30, 2022. Tr. 1-6. Plaintiff then sought review before this Court.
II. Sequential Disability Process
The initial burden of proof rests upon the claimant to establish disability. Howard v.Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected . . . to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).
The Commissioner has established a five-step process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920. At step one, the Commissioner determines whether a claimant is engaged in “substantial gainful activity”; if so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 404.1520(b), 416.920(b).
At step two, the Commissioner determines whether the claimant has a “medically severe impairment or combination of impairments.” Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). A severe impairment is one “which significantly limits [the claimant's] physical or mental ability to do basic work activities[.]” 20 C.F.R. §§ 404.1520(c) & 416.920(c). If not, the claimant is not disabled. Yuckert, 482 U.S. at 141.
At step three, the Commissioner determines whether the impairments meet or equal “one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity.” Id.; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the analysis proceeds. Yuckert, 482 U.S. at 141.
At step four, the Commissioner determines whether the claimant can perform “past relevant work.” Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can work, he is not disabled; if he cannot perform past relevant work, the burden shifts to the Commissioner. Yuckert, 482 U.S. at 146 n. 5.
Finally, at step five, the Commissioner must establish that the claimant can perform other work that exists in significant numbers in the national economy. Id. at 142; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
III. The ALJ's Decision
At step one, the ALJ determined that plaintiff had not engaged in substantial gainful activity since her amended alleged onset date. Tr. 15.
At step two, the ALJ determined that plaintiff has the following severe impairments: “tendinitis of right rotator cuff; SLAP tear of right shoulder; osteoarthritis of the right hip; carpal tunnel syndrome of the right upper limb status post release surgery; and a traumatic rupture of other ligament of right wrist.” Id.
At step three, the ALJ determined that plaintiff's impairments did not meet or medically equal the severity of a listed impairment. Tr. 18. The ALJ then resolved that plaintiff had the RFC to do light work with the following limitations:
She can lift, carry, or push and pull up to 10 pounds frequently and 20 pounds occasionally. She can sit, stand, or walk six hours in an eight-hour workday. She is limited to frequent reaching with the right arm, frequent handling and finger with the right hand, and occasional gripping with the right hand. She can never climb ladders, ropes and scaffolds or crawl. She can occasionally climb ramps and stairs, balance, stoop, kneel and crouch. She can never work at unprotected heights, never work with exposed moving mechanical parts, and should avoid concentrated exposure to vibration and extreme cold.Tr. 19.
At step four, the ALJ found that plaintiff could perform her past relevant work as a service clerk. Tr. 24. Thus, the ALJ concluded that plaintiff is not disabled. Tr. 24-25.
DISCUSSION
Plaintiff argues that the ALJ committed three errors: (1) failing to provide specific, clear and convincing reasons to reject plaintiff's symptom testimony; (2) improperly rejecting portions of the medical opinions provided by Drs. Robert Caspari, M.D., and Paul Puziss, M.D.; and (3) failing to make a step four finding supported by substantial evidence.
I. Subjective Symptom Testimony
Plaintiff contends that the ALJ failed to provide specific, clear and convincing reasons to reject her symptom testimony. Pl.'s Opening Br. 8-10. Specifically, plaintiff contends that her activities of daily living do not provide a proper basis for discounting plaintiff's testimony. Id. at 8-9. This Court disagrees.
A. Legal Standards
The ALJ is responsible for evaluating symptom testimony. SSR 16-3p, 2017 WL 5180304, at *1 (Oct. 25, 2017). There is a two-step process for evaluating a claimant's testimony about the severity and limiting effect of his symptoms. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, the claimant must produce objective medical evidence of one or more impairments that could reasonably be expected to produce some degree of symptoms. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The claimant need not show that the impairment could reasonably be expected to cause the severity of the symptoms, but only show that it could reasonably have caused some degree of the symptoms. Id.
Second, the ALJ must assess the claimant's testimony regarding the severity of the symptoms. Id. The ALJ can reject the claimant's testimony “only by offering specific, clear and convincing reasons for doing so.” Id. Thus, the ALJ must specifically identify the testimony that they do not credit and must explain what evidence undermines the testimony. Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). In other words, the “clear and convincing” standard requires an ALJ to “show [their] work.” Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022).
General findings are insufficient to support an adverse determination; the ALJ must rely on substantial evidence. Holohan, 246 F.3d at 1208 . To discredit a plaintiff's testimony regarding the degree of impairment, the ALJ must make a “determination with findings sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit claimant's testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). The question is not whether ALJ's rationale convinces the court, but whether their rationale “is clear enough that it has the power to convince.” Smartt, 53 F.4th at 499.
B. Plaintiff's Testimony
Plaintiff reported that she could not work on a regular, full-time basis because she needs frequent breaks, has pain in her right hand, right hip, and right shoulder, cannot lift and carry more than 10 pounds, cannot focus on tasks, feels nauseous at times, has pain in her stomach, experiences anxiety, has some impairment to her ability to make small decisions, such as what to wear, along with a lack of motivation and some amount of limited range of motion in her right hand. Tr. 312. She contends that she must rest in a reclining position with her feet up for an hour every day, that her daily activities take longer, that she avoids clothes with buttons and hooks because she has trouble gripping smaller objects, and that she avoids cutting things and using a knife because of her grip issues. Tr. 313-15. She also stated that she has good and bad days, and that on bad days when the pain is worse, she will get help with household chores and driving. Tr. 315. She further explained that she has issues with bending, standing, sitting, concentrating, and memory. Tr. 317. She reported being able to walk a mile, that she needs to rest for about five minutes before she can start walking again, that she can only pay attention for 20 minutes at a time, that she can follow written instructions well, that she does not handle stress well, and that she has been more withdrawn from social situations. Tr. 317-18. However, she also notes that she golfs, does yoga, attends water aerobics three times a week, goes on walks, goes out to dinner multiple times a week, hangs out with family and friends, attends live music events, and generally handles all household chores as well as takes care of her two cats. Tr. 313, 315-18. She does not take any medication or experience side effects. Tr. 318.
At the hearing, plaintiff testified that she currently works 25 hours a week at an elementary school in an instructional capacity, which involves supervising children. Tr. 42. She stated that she worked as a mail carrier prior to an accident in 2016 that resulted in multiple injuries. Tr. 44-45. In her capacity as a mail carrier, she lifted packages up to 50 pounds, carried mail trays, big containers, other assorted packages, had to load her vehicle, and delivered the mail to various houses. Tr. 44. After the accident, when asked what currently keeps her from working, plaintiff stated that the pain in her right hand, hip, and shoulder, along with fatigue, prevent her from working. Tr. 47. She stated she could comfortably lift 10 pounds with her right hand, that she cannot fully close her right hand, and that after she had surgery in January of 2021, she still experienced pain but less numbness. Tr. 47. When asked about her daily activities, she stated that she paces herself, that if she does too much one day, the next day she will refrain from doing much at all. Tr. 47-48. She explained that she does not venture out much, and that she is not very social. Tr. 48.
When asked to expound upon her current job duties, plaintiff stated she is constantly moving and changing tasks every 20-30 minutes, so she is not engaged in “repetitious kind of things.” Tr. 49. She also stated that changing positions is good for her because she has issues sitting due to hip pain which prevents her from sitting for more than 20 minutes or standing for more than 25 minutes. Tr. 50. Plaintiff discussed helping her son sell ice cream during the summer, that she officially retired from the postal service with a disability in 2018, and that she reported her right hand was 90 percent better in May of 2021 then up to 50 percent better in July. Tr. 51-52. Despite the surgery, she opined that she still feels pain every day and she still has issues with its use. Tr. 52. When asked about her mental health, she stated that she has become forgetful, that she often asks for clarification on instructions, that she takes supplements to help with her anxiety and sleep, and that she gets depressed when she gets stressed. Tr. 53. She stated that she is seeing a therapist. Tr. 53. When questioned about some of her activities, such as watching her grandchildren, golfing, and water aerobics, she stated that although she did watch two of her grandkids, they were “very self-sufficient.” Tr. 54. She also explained that she only golfs once or twice a year, uses special grips, can only play nine holes as opposed to a full 18, and that the next day she has a lot of pain in her right hand, as well as possible cramping. Tr. 54. She then stated that while she does go to water aerobics, she was not able to attend last summer, and that the instructor accommodated her limitations. Tr. 55.
The ALJ determined that her medically determinable impairments could reasonably be expected to produce some degree of symptoms, but her “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.” Tr. 20. The ALJ reasoned that plaintiff's testimony of her disabling limitations was inconsistent with (1) evidence of her daily activities, (2) her improvement with treatment, and (3) evidence from the medical record. Tr. 20-23. Plaintiff argues only that daily activities are not a specific, clear and convincing reason to discount her testimony.
C. Daily Activities
The ALJ rejected plaintiff's subjective symptom testimony because it was inconsistent with her reported daily activities and functioning. Tr. 19-22. Activities of daily living can form the basis for an ALJ to discount a claimant's testimony in two ways: (1) as evidence a claimant can work if the activities “meet the threshold for transferable work skills”; or (2) where the activities “contradict [a claimant's] testimony.” Orn, 495 F.3d at 639.
Here, the ALJ discounted plaintiff's testimony because her activities were inconsistent with her complaints of limited activity. The ALJ made note of several instances showing plaintiff was not very limited by her right hand, hip, and shoulder, despite complaints of pain, loss of function, and weakness. Tr. 47, 50-52, 54-55. For example, prior to her hand surgery, the ALJ noted that plaintiff traveled to Japan, unscrewed deck boards, does yoga, golfs once or twice a year, packed and unpacked for moving, dug and shoveled snow, dug for a sewer line, removed staples from the flooring, and that she has reported minimal difficulty with heavy lifting and chores. Tr. 20-22, citing Tr. 391, 402, 410, 419, 424, 432, 446.
Notably, playing golf once or twice a year and a trip to Japan would not serve as justifiable reasons to discount plaintiff's testimony. See Popa v. Berryhill, 872 F.3d 901, 906-07 (9th Cir. 2017) (“A single discrepancy fails, however, to justify the wholesale dismissal of a claimant's testimony.”) It is only in combination with her other activities that these otherwise “weak reason[s]” reach the specific, clear and convincing standard. See Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014)
Plaintiff argues that her activities, such as shoveling snow, digging holes, yoga, and packing and moving do not reflect that she is capable of sustained work, and these activities also resulted in setbacks to her hand, wrist, shoulder, hip, and lower back. Pl.'s Opening Br. 9. Plaintiff is incorrect.
As noted above, a plaintiff's daily activities can serve as a valid basis for discounting symptom testimony in two ways: (1) as evidence a claimant can work if the activities “meet the threshold for transferable work skills”; or (2) where the activities “contradict [a claimant's] testimony.” Orn, 495 F.3d at 639. Shoveling snow, digging holes for a sewer line, pulling up staples from flooring, unscrewing deck boards, packing and unpacking for moving, and stating that she has minimal difficulty with heavy lifting and chores all serve to refute plaintiff's reports of pain and weakness in her right hand, shoulder, and hip being a barrier to work. Furthermore, plaintiff's argument that such activities led to setbacks in her hand, wrist, shoulder, hip, and lower back is unsupported. After shoveling snow, plaintiff reported that her shoulder was only a little sore and made no mention of her hip, hand, wrist, or lower back. Tr. 402. After packing boxes and moving for a week, plaintiff reported improved shoulder and back pain overall. Tr. 406. After removing staples from the flooring, plaintiff had increased tightness but did not mention pain, nor did she mention her hand, hip, or wrist. Tr. 424.
In sum, plaintiff's ability to shovel snow, dig holes for a sewer line, pull up staples from flooring, unscrew deck boards, pack and unpack in order to move, along with plaintiff's reports of having only minimal difficulty with heavy lifting and chores serve as valid reasons to discount plaintiff's claim that her physical impairments are disabling. Given the above, the ALJ provided clear and convincing reasons to reject plaintiff's testimony.
C. Additional bases for the ALJ's findings.
As noted above, Plaintiff only challenges the ALJ's rejection of her subjective symptom testimony based on her activities of daily living. She does not challenge the ALJ's rejection of that testimony based on her improvement with treatment, inconsistencies or conflicts with the objective medical evidence, or any of the ALJ's findings regarding her other impairments. In addition, the Commissioner asserts that each basis asserted by the ALJ to reject her subjective symptom testimony was supported by substantial evidence.
Plaintiff mentions improvement with treatment in passing, but her arguments are undeveloped.
Because the ALJ provided at least one valid reason for discrediting plaintiff's symptom testimony, this Court need not resolve any other dispute regarding the ALJ's other bases for discounting plaintiff's testimony, other than to note that had plaintiff challenged the other bases upon which the ALJ relied, and had there been error, such error would have been harmless. See Carmickle v. Comm'r of Soc. Sec. Admin., 533 F.3d 1155, 1163 (9th Cir. 2008) (finding that the ALJ's reliance on invalid reasons was harmless error because the ALJ provided other valid reasons that support the ALJ's credibility determination); e.g. Jones v. Saul, 818 Fed.Appx. 781, 781-82 (9th Cir. 2020) (holding that the ALJ provided clear and convincing reasons for discounting the claimant's testimony and thus “[a]ny error in the ALJ's additional reasons for discounting [claimant's] symptom testimony [were] harmless”).
II. Medical Opinions
Plaintiff alleges that the ALJ failed to address critical aspects of the medical opinions provided by Drs. Caspari and Puziss. Pl.'s Opening Br. at 6-7. Specifically, she argues that the ALJ did not address Dr. Caspari's limitation to occasional handling and fingering, and Dr. Puziss' limitation that she was not able to do any repetitive work with her right hand, as well as other aspects of his observations regarding plaintiff's numbness and pain. Pl.'s Opening Br. at 7.
A. Legal standards
For disability claims filed on or after March 27, 2017, new regulations for evaluating medical opinion evidence apply. Revisions to Rules Regarding the Evaluation of Medical Opinion Evidence (Revisions to Rules), 2017 WL 168819, 82 Fed.Reg. 5844, at *5867-68 (Jan 18, 2017). Under those revised regulations, the ALJ no longer “weighs” medical opinions but instead determines which are most “persuasive.” 20 C.F.R. §§ 404.1520c(a). The new regulations eliminate the hierarchy of medical opinions and state that the agency does not defer to any particular medical opinions, even those from treating sources. Id.; see also Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) (“The revised social security regulations are clearly irreconcilable with our caselaw according special deference to the opinions of treating and examining physicians on account of their relationship with the claimant.”). Under the new regulations, the ALJ primarily considers the “supportability” and “consistency” of the opinions in determining whether an opinion is persuasive. 20 C.F.R. § 404.1520c(c). Supportability is determined by whether the medical source presents explanations and objective medical evidence to support their opinions. Id. § 404.1520c(c)(1). Consistency is determined by how consistent the opinion is with evidence from other medical and nonmedical sources. Id. § 404.1520c(c)(2).
An ALJ may also consider a medical source's relationship with the claimant by looking at factors such as the length, purpose, or extent of the treatment relationship, the frequency of the claimant's examinations and whether there is an examining relationship. Id. § 404.1520c(c)(3). An ALJ is not, however, required to explain how she considered those secondary medical factors unless she finds that two or more medical opinions about the same issue are equally well-supported and consistent with the record but not identical. Id. § 404.1520c(b)(2)- (3). The regulations require ALJs to “articulate . . . how persuasive [they] find all of the medical opinions” and “explain how [they] considered the supportability and consistency factors.” Id. § 404.1520c(c)(b). The court must, moreover, continue to consider whether the ALJ's analysis has the support of substantial evidence. See 42 U.S.C. § 405(g); Woods, 32 F.4th at 792 (“Even under the new regulations, an ALJ cannot reject an examining or treating doctor's opinion as unsupported or inconsistent without providing an explanation supported by substantial evidence.”). Id.
B. Dr. Robert Caspari
Plaintiff first argues that the ALJ improperly discredited Dr. Caspari's opinion regarding a limitation to occasional fingering and handling. The ALJ found that Dr. Caspari's opinion was generally persuasive except for the portion regarding a limitation to occasional fingering and handling. Tr. 23. The ALJ found that this portion of the opinion was inconsistent with later medical records showing improved function following plaintiff's carpal tunnel release surgery in January 2021. Tr. 23, citing Tr. 775. Furthermore, this limitation was unsupported by other medical evidence, such as Dr. Puzzis' July 2020 finding that she can perform “light duty,” and Dr. Moore's finding that she has no manipulative limitations. Tr. 98, 569.
Dr. Caspari was the reviewing doctor for plaintiff's initial disability application, which was denied on December 3, 2020. Tr. 81, 83-84. In his report, Dr. Caspari noted that plaintiff could occasionally lift and carry 20 pounds, frequently lift and carry 10 pounds, and had no limitations in push/pull. Tr. 77. He also noted plaintiff could sit, stand, and walk six hours in an eight-hour workday, could frequently climb ramps or stairs, crouch, and balance, could occasionally climb ladders, ropes, and scaffolds, and occasionally stoop, kneel, and crawl. Tr. 77-78. For manipulative limitations, he noted plaintiff had limited fingering and handling in her right hand due to grip and finger weakness and chronic pain, but that these limitations were subject to a pending carpal tunnel surgery that was expected to restore functionality. Tr. 79.
On January 26, 2021, plaintiff had carpal tunnel release surgery, and on February 3, 2021, she reported a 50 percent improvement in her numbness and tingling. Tr. 750. She also still had “some” carpal tunnel pain and was able to make a fist. Tr. 750. On February 24, 2021, plaintiff reported a 25 percent improvement in her numbness and tingling. Tr. 748. She also reported that tenderness around her incision was declining, she has less pain, and her scar was hypersensitive to touch though diclofenac gel helps. Tr. 748. On examination, she still had moderately diminished pinprick in her right thumb and index fingers and mildly diminished pinprick in her right middle, ring, and little finger. Separate from her hand, her shoulder had full range of motion, full strength in her rotator cuff, a tiny pop in her shoulder with motions with full rotations, and negative signs of impingement. Tr. 749. On May 24, 2021, plaintiff reported a 90 percent improvement, that occupational therapy is “definitely helpful,” that her tingling has disappeared, that her strength is reduced, and that she will drop something “once in a while,” and did not mention any pain. Tr. 820. She also had a negative Tinel test, pinprick was slightly diminished to the right index and middle finger pads, her strength was good, and thenar strength was normal. Tr. 820-21. On July 12, 2021, plaintiff reported that she still experiences pain, that she has little trouble with small items but does not drop things, that she has overall improvement of 45 to 50 percent, and that she feels “quite healed.” Tr. 814. Upon examination, she had mildly diminished pinprick in her right thumb, index, and middle fingers, along with decreased light tough. Tr. 815. Her carpal tunnel Tinel sign was negative, though she did experience some pain, and her median nerve compression test was negative. Tr. 815. Her hand squeeze test was negative for neuromatous pain, she had no tenderness, and her Finkelstein's test was negative as well. Tr. 815. Plaintiff also had no functional interference during the test, nor pain behavior or embellishment. Tr. 816.
Given plaintiff's improvement following her carpal tunnel surgery, and because Dr. Caspari only found a limitation in plaintiff's fingering and handling pending her surgery, Dr. Caspari's opinion was consistent with Dr. Moore's, which found no manipulative limitations post-surgery. Because Dr. Caspari found that plaintiff's limitation to occasional handling and fingering would be alleviated by surgery, and Dr. Moore found that plaintiff's surgery had resolved her limitation to occasional fingering and handling, which was consistent with the postsurgery medical evidence, the ALJ's rejection of handling and fingering to only occasional is supported by substantial evidence.
B. Dr. Paul Puziss
Plaintiff next argues that the ALJ failed to account for an assessment Dr. Puziss made in his medical opinion, stating that plaintiff was incapable of any repetitive work with her right hand. Pl.'s Opening Br. at 7.
Dr. Puziss served as plaintiff's treating orthopedic physician starting April 24, 2020. Tr. 474. He provided records of plaintiff's office visits through July 12, 2021, encompassing her time both pre-and-post-surgery. Tr. 814. At issue is an assessment made post-surgery, on July 12, 2021, in which Dr. Puziss stated that plaintiff still experiences enough pain in her hand such that she is incapable of doing any repetitive work. Tr. 814.
The ALJ found the July 2021 medical opinion by Dr. Puziss more persuasive because the overall eight percent disability rating was supported by Dr. Puziss' own observations and was consistent with improvements in plaintiff's condition post-surgery. Tr. 24.
The statement provided in July 2021, in which Dr. Puziss found that plaintiff could not perform any repetitive work with her right hand due to pain, is unsupported. For example, plaintiff had a 45 to 50 percent overall improvement in relief of symptoms, which included pain, tingling, and numbness, had a negative hand squeeze test for neuromatous pain, had a negative carpal tunnel Tinel test, a negative compression test, had no tenderness, and no pain behavior during testing. Tr. 814-16. Plaintiff did report experiencing some pain, but the degree is not mentioned. Tr. 815. Dr. Puziss also determined that plaintiff had a six percent impairment based on residual symptoms, and an eight percent impairment based on her carpal tunnel syndrome. Tr. 816. The ALJ reasoned that the eight percent disability rating was consistent with plaintiff's post-surgery improvement. Tr. 24.
Because neither the ALJ nor Dr. Puziss provide any functional analysis of what an eight percent disability rating means, especially as it pertains to plaintiff's ability to work, the import of this finding is unclear.
In any case, Dr. Puziss' finding that plaintiff is incapable of any repetitive work due to pain in her right hand is unsupported by his own notes and testing, in which plaintiff reported an overall 45 to 50 percent improvement post-surgery, no pain behavior during testing, and no testing results that would support such a severe limitation. Thus, the ALJ did not err in finding Dr. Puziss' medical opinion only somewhat persuasive and rejecting Dr. Puziss' statement that Plaintiff is incapable of any repetitive work due to pain in her right hand.
III. RFC Determination
Finally, plaintiff asserts that the ALJ erred by finding that plaintiff was capable of returning to her past relevant work as a service clerk. Pl.'s Opening Br. at 5. Specifically, plaintiff argues that because the ALJ limited plaintiff to frequent handling and occasional gripping, a conflict exists with the DOT because if plaintiff is limited to occasional gripping, and gripping is included in handling, then plaintiff cannot do a job that requires frequent handling. Pl.'s Opening Br. at 5.
At step five, the Commissioner has the burden “to identify specific jobs existing in substantial numbers in the national economy that the claimant can perform despite [her] identified limitations.” Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995); 20 C.F.R § 416.920(g). In making this determination, the ALJ relies on the Dictionary of Occupational Titles (DOT), which is the Social Security Administration's “primary source[] of reliable job information” regarding jobs that exist in the national economy. Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990); 20 C.F.R §§ 416.969, 416.966(d)(1).
The ALJ relies on the testimony of a vocational expert (VE) to identify specific occupations that a claimant can perform in light of her RFC. 20 C.F.R § 416.966(e); Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). When there is an apparent conflict between the vocational expert's testimony and the DOT, the ALJ is required to reconcile that inconsistency by posing questions about the potential conflict. See Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007). Nevertheless, if the ALJ fails to ask the vocational expert about the potential conflict, that “procedural error” may be “harmless” if there is no conflict between the vocational expert's testimony and the DOT. Id. at 1154 n.19.
Here, the ALJ found that plaintiff could return to her past relevant work as a service clerk. Tr. 24. Plaintiff does not challenge the ALJ's assessment of her RFC, nor does she put forth an argument for more limitations than the ALJ assessed; instead, plaintiff argues only that the VE's testimony creates a conflict with the Dictionary of Occupational Titles (DOT) that the ALJ was compelled to reconcile yet failed to do so. This conflict, plaintiff argues, arises from plaintiff's RFC in which she is limited to both frequent handling and occasional gripping, and whether gripping is included in handling, leaving open the question of whether plaintiff could, in fact, perform her past relevant work. Pl.'s Opening Br. at 5-6. Plaintiff's argument is unpersuasive because the VE's testimony resolved any conflict.
At the hearing, the ALJ posed a hypothetical to the VE that included all the limitations found in the plaintiff's RFC, while also including routine and repetitive tasks and no specific limitation for gripping. Tr. 58. In response, the VE testified that plaintiff could perform the following occupations: router, mail clerk, and marker. Tr. 59. The ALJ then posed another hypothetical, adding a limitation for occasional gripping. Tr. 59. In response, the VE testified that “the router and mail clerk would still be in play,” but that he would change out marker for garment sorter. Tr. 59-60. The ALJ then asked what eliminated plaintiff's past relevant work. Tr. 60. The VE testified that the limitation to routine and repetitive tasks would eliminate plaintiff's past relevant work. Tr. 60. Without that limitation, plaintiff would be capable of her past relevant work. Tr. 60. The ALJ then posed a hypothetical eliminating the routine and repetitive tasks limitation, and included the limitations for frequent handling, frequent fingering, and occasional gripping. Tr. 61. The VE testified that, based on his experience, even with the specific grip limitation, plaintiff would still be capable of performing her past relevant work as a service clerk. Tr. 61.
As noted, the ALJ recognized there might be a conflict between frequent handling and occasional gripping and specifically inquired of the VE by posing a hypothetical that included both frequent handling and occasional gripping. Tr. 61. Because the ALJ questioned the VE about the possible conflict between frequent handling and occasional gripping, and the VE testified that, based on his experience, plaintiff would still be able to perform her past relevant work, the ALJ did not err in finding that plaintiff could perform her past relevant work.
RECOMMENDATION
For the reasons above, the Commissioner's decision should be AFFIRMED.
SCHEDULING ORDER
This Findings and Recommendation will be referred to a district judge. Objections, if any, are due no later than fourteen (14) days after the date this recommendation is filed. If objections are filed, any response is due within fourteen (14) days after the date the objections are filed. See Fed.R.Civ.P. 72, 6. Parties are advised that the failure to file objections within the specified time may waive their right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).