Opinion
CV 20-00477-TUC-RCC (LAB)
11-18-2021
Delphine Wood, Plaintiff, v. Commissioner of Social Security Administration, 3 Defendant.
REPORT AND RECOMMENDATION
Leslie A. Bowman United States Magistrate Judge.
The plaintiff, Delphine Wood, filed this action for review of the final decision of the Commissioner for Social Security pursuant to 42 U.S.C. § 405(g). (Doc. 1, p. 1)
The case has been referred to the United States Magistrate Judge pursuant to the Rules of Practice of this court. (Doc. 12)
The Magistrate Judge recommends that the District Court, after its independent review, affirm the final decision of the Commissioner. The ALJ's finding that Wood did not have a medically determinable back impairment causing more than minimal limitations before her “date last insured” was not error. She did not misconstrue the testimony of the medical expert at the supplemental hearing.
PROCEDURAL HISTORY
Wood filed an application for disability insurance benefits on November 10, 2016. (Doc. 17-3, p. 20) She alleged disability beginning on March 19, 2015, due to PTSD (post-traumatic 1 stress disorder), depression, generalized anxiety disorder, and obsessive compulsive disorder. (Doc. 17-11, pp. 2, 7)
Wood's application was denied initially and upon reconsideration. (Doc. 17-3, p. 20) She requested review and appeared with counsel at a hearing before Administrative Law Judge (ALJ) Laura Speck Havens on November 28, 2018. (Doc. 17-3, pp. 19-20) Supplemental hearings were held on July 11, 2019 and November 7, 2019. (Doc. 17-3, p. 20) In her decision, dated November 18, 2019, the ALJ found that Wood was not disabled because there are jobs in the national economy that she can perform considering her age, education, work experience, and residual functional capacity - hand packager, cleaner, and food mixer. (Doc. 17-3, pp. 29-30) Wood requested review, but on October 8, 2020, the Appeals Council denied review making the decision of the ALJ the final decision of the Commissioner. (Doc. 17-3, p. 2) Wood subsequently filed this action appealing that final decision. (Doc. 1)
CLAIM EVALUATION
Social Security Administration (SSA) regulations require that disability claims be evaluated pursuant to a five-step sequential process. 20 C.F.R. § 404.1520. The first step requires a determination of whether the claimant is engaged in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4). If so, then the claimant is not disabled and benefits are denied. Id.
If the claimant is not engaged in substantial gainful activity, the ALJ proceeds to step two, which requires a determination of whether the claimant has a severe impairment or combination of impairments. 20 C.F.R. § 404.1520(a)(4). In making a determination at step two, the ALJ uses medical evidence to consider whether the claimant has an impairment that significantly limits or restricts his or her physical or mental ability to do basic work activities. Id. If the ALJ concludes that the claimant does not have a severe impairment, the claim is denied. Id.
Upon a finding of severity, the ALJ proceeds to step three, which requires a determination of whether the impairment meets or equals one of several listed impairments that 2 the Commissioner acknowledges are so limiting as to preclude substantial gainful activity. 20 C.F.R. § 404.1520(a)(4); 20 C.F.R. Pt. 404, Subpt. P, App.1. If the claimant's impairment meets or equals one of the listed impairments, the claimant is presumed to be disabled, and no further inquiry is necessary. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). If the claimant's impairment does not meet or equal a listed impairment, evaluation proceeds to the next step.
The fourth step requires the ALJ to consider whether the claimant has sufficient residual functional capacity (RFC) to perform past relevant work. 20 C.F.R. § 404.1520(a)(4). If yes, then the claim is denied. Id. If the claimant cannot perform any past relevant work, then the AL J must move to the fifth step, which requires consideration of the claimant's RFC to perform other substantial gainful work in the national economy in view of the claimant's age, education, and work experience. Id.
Residual functional capacity is defined as that which an individual can still do despite his or her limitations. 20 C.F.R. § 404.1545.
“There are two ways for the [ AL J] to meet the burden of showing that there is other work in ‘significant numbers' in the national economy that claimant can do: (1) by the testimony of a vocational expert, or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2 [known as the grids].” Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9thCir. 2006). “The grids categorize jobs by their physical-exertional requirements, and set forth a table for each category.” Id. “A claimant's placement with the appropriate table is determined by applying a matrix of four factors identified by Congress-a claimant's age, education, previous work experience, and physical ability.” Id. at 1114-1115. “For each combination of these factors, they direct a finding of either ‘disabled' or ‘not disabled' based on the number of jobs in the national economy in that category of physical-exertional requirements.” Id. at 1115.
“Where a claimant suffers only non-exertional limitations, the grids are inappropriate, and the ALJ must rely on other evidence.” Id. “Where a claimant suffers from both exertional and non-exertional limitations, the ALJ must consult the grids first.” Id. If the grids direct a 3 finding of disability, the analysis ends, and the Commissioner must accept that finding. Id. at 1116.
The ALJ's Findings
At step one of the disability analysis, the ALJ found that Wood “has not engaged in substantial gainful activity during the period from her alleged onset date of March 19, 2015 through her date last insured of December 31, 2017. . . .” (Doc. 17-3, p. 23) At step two, she found Wood “has the following severe impairments: post-traumatic stress disorder (PTSD) and anxiety disorder.” (Doc. 17-3, p. 23)
At step three, the ALJ found that Wood's impairments did not meet or equal the criteria for any impairment found in the Listing of Impairments, Appendix 1, Subpart P, of 20 C.F.R., Part 404. (Doc. 17-3, p. 24)
The ALJ then analyzed Wood's residual functional capacity (RFC). She found that Wood “had the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant can understand, remember, and carry out simple job instructions only, with only occasional interaction with coworkers, the public and supervisors.” (Doc. 17-3, p. 26)
At step four, the ALJ found that Wood is unable to perform her past relevant work as a teacher, which is light, skilled work. (Doc. 17-3, p. 28) At step five, the ALJ found, based on the testimony of the vocational expert, that, considering her age, education, work experience, and residual functional capacity, Wood can work as a hand packager, cleaner, or food mixer. (Doc. 17-3, p. 29)
STANDARD OF REVIEW
To qualify for disability benefits the claimant must demonstrate, through medically acceptable clinical or laboratory standards, an inability to engage in substantial gainful activity due to a physical or mental impairment that can be expected to last for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A). “An individual shall be determined to be 4 under a disability only if [her] physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] 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 the immediate area in which [she] lives, or whether a specific job vacancy exists for [her] or whether [she] would be hired if [she] applied for work.” 42 U.S.C. § 423(d)(2)(A).
The findings of the Commissioner are meant to be conclusive. 42 U.S.C. § 405(g). The decision to deny benefits “should be upheld unless it contains legal error or is not supported by substantial evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. It is “more than a mere scintilla but less than a preponderance.” Id.
“Where evidence is susceptible to more than one rational interpretation, the [Commissioner's] decision should be upheld.” Orn, 495 F.3d at 630. “However, a reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Id.
Discussion
Wood brings a single allegation of error: Did the AL J err when she found that Wood did not have a severe physical impairment prior to her “date last insured?” (Doc. 20, p. 9) The court finds no error.
When Wood filed her initial application on November 10, 2016, she alleged disability due to mental impairments only. (Doc. 17-3, p. 20); (Doc. 17-11, pp. 2, 7) However, at the hearing before the ALJ on November 28, 2018, Wood alleged that she had developed lower back problems in addition to her mental limitations. (Doc. 17-7, pp. 69-70, 74) She testified that she could no longer lift a gallon of milk. (Doc. 17-7, p. 83) Wood was not entirely certain why she had developed these physical limitations. Apparently, she had been in some car accidents in the past, but “they were years ago.” (Doc. 17-7, p. 82); see also (Doc. 17-7, p. 52) 5
Apparently, Wood's counsel believed that her physical limitations could be dispositive. If Wood was limited to light work, application of the grids would produce a finding of disabled, and her mental limitations would become irrelevant. See (Doc. 20, p. 3) (citing grid rule 202.06)
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. § 404.1567(b).
Wood's allegation of a physical impairment was supported by a medical record from October 2018 showing “paraspinal tenderness at ¶ 1-2.” (B12F p. 16); (Doc. 17-13, p. 68) An MRI from October 2018 showed evidence of “nerve root tethering or arachnoiditis.” (B14F, p. 2); (Tr.1174); (Doc. 17-13, p. 166) It appeared that Wood might have developed a physical impairment by the end of 2018. But did this physical impairment develop in time to affect the disability analysis?
Wood applied for disability insurance benefits (DIB) not supplemental security income (SSI). She therefore had to establish disability before her insurance eligibility ran out on her “date last insured” (DLI) - December 31, 2017. (Doc. 17-3, p. 23) Accordingly, the ALJ and counsel attempted to establish at the hearing the extent of her physical limitations on that earlier date.
Wood testified that she stopped exercising in February of 2018. (Doc. 17-7, p. 74) She further stated that “[b]ack in 2017” she could walk or stand “[p]robably a couple of hours.” (Doc. 17-7, p. 77) She had no problems sitting and could lift 20 pounds. (Doc. 17-7, p. 77) Wood further testified that “[a] year ago, ” moving large boxes that weigh “20 or 30 pounds” would have been difficult. (Doc. 17-7, p. 80) She conceded, however, that “I'm not good at [estimating] weight.” Id. Cutting large bushes or trimming the citrus trees would have been difficult. (Doc. 17-7, p. 81) She said, “I don't have enough strength.” Id. On the other hand, she had no difficulty “doing dishes or laundry.” (Doc. 17-7, p. 81) She further testified that, “last year, ” if she had three gallons of milk in a single crate, she would have been able to pick 6 it up once or twice but might not have been able to “carry it from the back of Walmart to the front of Walmart.” (Doc. 17-7, p. 82)
One gallon of milk weighs 8.6 pounds. (Doc. 20, p. 12, n. 2)
A supplemental hearing was held on July 11, 2019. (Doc. 17-7, p. 24) Medical expert Minh Vu, M.D., testified that Wood could lift 25 pounds, six hours a day. (Doc. 17-7, p. 37), (Doc. 17-7, p. 23) Neither Wood's counsel nor the ALJ, however, considered his testimony to be entirely reliable.
A second supplemental hearing was held on November 7, 2019. (Doc. 17-7, p. 45) A neurologist, William Rack, M.D., offered expert testimony. (Doc. 17-7, p. 49) Counsel asked Rack if he could determine what Wood's physical limitations would have been at the end of 2017 based on the medical records and her testimony about her daily activities. (Doc. 17-7, pp. 50-51) Rack was hesitant to offer a definitive answer. He stated:
I'm - I have difficulty because I don't find a distinct neurologic assessment of the patient in the records I - I see or read of a multitude of different problems and a multitude of physical phenomenon, but I don't see anybody defining activities that should or should not be undertaken by the patient. And on that basis, it's -it's hard for me to say despite the amount of problems that are written about, it's hard for me to put that onto a physical action kind of activity for her, particularly with regard to activity. And so I - in the absence of seeing a distinct neurologic assessment with indications of what's possible for her to do, et cetera, it's - it's difficult for me to say that I think that she should be on limited activities from a disability point of view. Certainly, the injuries that she's had, et cetera, one would expect that she would have some kind of limitations, but I don't see that really, adequately defined as far as the record is concerned. At least, not from a neurologic point of view.(Doc. 17-7, pp. 55-56)
Counsel directed Rack to treatment notes from November 29, 2018 (B16F, p. 11) and to the MRI studies. (Doc. 17-7, p. 57) After some prodding, Rack conceded that based on this evidence and her history of injuries, “I would say more likely than not, she is unable to lift that weight, 25 pounds six times a day, or what you - what you said. I think that just being aware that she has had as much trauma as seems to be the case, I would expect that that kind of limitation would be present.” (Doc. 17-7, p. 58)
Counsel again asked Rack if he could opine on Wood's limitations in 2017. Counsel reasoned that if her physical impairments were caused by the auto accidents in the 90s, it would be likely that her physical limitations developed back then, which would be consistent with the 7 fact that she worked as a teacher - a “light” exertion level job. (Doc. 17-7, pp. 60-61) He asked Rack, “Would you agree with that statement, Doctor?” (Doc. 17-7, p. 61) Rack replied, “Well, I don't know whether I can agree with that or not . . . .” (Doc. 17-7, p. 61)
In her decision, the ALJ gave the following analysis regarding Wood's allegation of a physical impairment:
In addition to the severe impairments listed above, the claimant also testified she has back problems. (HT 11/28/18). The record shows the claimant had sought treatment for back pain in 2016 and received back adjustments. (B2F pp. 3, 9). However, she did not continue to see[k] treatment or report back pain in 2016 or 2017. Examinations in 2017 showed no abnormal musculoskeletal findings, including no arthralgias or myalgias, normal gait and station, normal range of motion, and normal muscle tone (B8F pp. 2, 5, 8, 11; B12F pp. 6, 9).
In October 2018, examination showed left paraspinal tenderness at ¶ 1-2 that worsens with lateral flexion. (B12F p. 16). An MRI from October 2018 showed multilevel subarticular recess and foraminal stenosis. (B14F p. 2). Central canal stenosis was most pronounced at ¶ 4-5, where it was mild. (B14F p. 2). The MRI also showed nerve root tethering and disorganization of the nerve roots within the thecal sac at ¶ 3 to L5 which may be associated with nerve root tethering or arachnoiditis. (B 14F p. 2). These examinations and imaging results, however, are from 10 months after the date last insured. A neurologist, acting as a medical expert, testified that the evidence did not establish these conditions existed or were causing limitations at the date last insured or before. (HT 11/7/19). Because the record does not establish a medically determinable back impairment causing more than minimal limitations before the date last insured, the claimant does not have a severe back impairment in this case.(Doc. 17-3, pp. 23-24) (emphasis added) The ALJ's analysis was not error.
The first step in proving disability is establishing a “medically determinable impairment.” The pertinent regulation reads as follows:
If you are not doing substantial gainful activity, we will then determine whether you have a medically determinable physical or mental impairment(s) . . . . Your impairment(s) must result from anatomical, physiological, or psychological abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic techniques. Therefore, a physical or mental impairment must be established by objective medical evidence from an acceptable medical source. We will not use your statement of symptoms, a diagnosis or a medical opinion to establish the existence of an impairment(s). After we establish that you have a medically determinable impairment(s) then we determine whether your impairment(s) is severe.20 C.F.R § 404.1521 (emphasis added).
In this case, the ALJ noted physical examinations and MRI studies from October of 2018 that indicated a possible back impairment. And while these records might have established a 8 medically determinable impairment in 2018, the ALJ determined that there was no evidence of a medically determinable back impairment in 2017, when Wood's eligibility for benefits expired on her date last insured (DLI) - December 31, 2017. She supported her decision by noting that, “[a] neurologist, acting as a medical expert, testified that the evidence did not establish these conditions existed or were causing limitations at the date last insured or before.” (Doc. 17-3, pp. 23-24) The decision of the ALJ is supported by substantial evidence.
Wood argues, however, that the ALJ's analytic approach was error. She directs the court to Social Security Ruling (SSR) 18-1p, which states in pertinent part as follows:
The court assumes without deciding that SSR 18-1p applies to this case. But see Luzette M. R. v. Saul, 2020 WL 3893306, at *10, n. 8 (CD. Cal. 2020) (“SSR 18-1p is applicable to applications filed on or after October 2, 2018.”). Wood filed her application for disability insurance benefits on November 10, 2016. (Doc. 17-3, p. 20)
The date we find that the claimant first met the statutory definition of disability may predate the claimant's earliest recorded medical examination or the date of the claimant's earliest medical records, but we will not consider whether the claimant first met the statutory definition of disability on a date that is beyond the period under consideration.(Doc. 20, p. 10) Wood asserts that pursuant to this ruling, the ALJ erred by immediately considering the ultimate question: Did Wood have a medically determinable physical impairment prior to her date last insured (DLI)? Id., pp. 10-11 Instead, the ALJ should have considered whether she had a medically determinable physical impairment at the end of 2018, and then could have worked backwards to determine whether she had this impairment prior to her DLI. Id. The court does not agree.
Wood's proposal is foreclosed by the final clause of the quoted section, which states that “we will not consider whether the claimant first met the statutory definition of disability on a date that is beyond the period under consideration.” SSR 18-1p. The ALJ is not authorized to consider whether Wood was disabled after her DLI and then work backwards. Ruling 18-1p would apply to the pending action if the MRI and physical examination showed that Wood was 9 disabled on December 31, 2017, her DLI. Then, the ALJ could determine from the relevant evidence whether Wood was disabled before this date, perhaps on the day she turned 55. See also SSR 18-01p, 2018 WL 4945639, *5, n. 17 (“For title II claims, if we find that the claimant did not meet the statutory definition of disability before his or her insured status expired, we will not determine whether the claimant is currently disabled or was disabled within the 12-month period before the month that he or she applied for benefits.”) (emphasis added); see, e.g., Suttner v. Kijakazi, 2021 WL 4191438, at *6 (E.D. Wis. 2021) (rejecting the claimant's argument that SSR 18-1p “requires the ALJ to determine whether the condition would have been disabling regardless of when the condition was diagnosed or an opinion on limitations reached.”) (punctuation modified); Slaten v. Saul, 2021 WL 2482690, at *9 (S.D. Ala. 2021) (“To the extent the medical opinions supported disabling limitations after the date last insured, any error the ALJ made in considering them is harmless.”).
Wood further argues that the ALJ failed to credit her subjective testimony that she had physical limitations in 2017. (Doc. 20, pp. 11-12) She testified, for example, that she could not do heavy yard work because moving 20-pound weights would have caused her back pain. Id. Wood's argument, however, fails to account for the regulation that states, “[w]e will not use your statement of symptoms, a diagnosis, or a medical opinion to establish the existence of an impairment(s).” 20 C.F.R. § 404.1521 A medically determinable impairment “must be established by objective medical evidence from an acceptable medical source.” Id. And here, that objective medical evidence did not appear until the end of 2018. See Shoate v. Barnhart, 2003 WL 21556939, at *4 (N.D. Cal. 2003) (“Because the record contains no objective evidence supporting Shoate's claims of wrist and finger pain, the ALJ's refusal to consider Shoate's subjective evidence related to those claims did not constitute legal error.”).
Wood also maintains that the ALJ misread Rack's testimony. She asserts that Rack testified that MRI evidence supported the existence of a medically determinable impairment in December of 2018. (Doc. 20, pp. 13-14) She further notes that Rack testified that “more likely than not” this impairment would have made her unable to lift a 25-pound weight six times a day. 10 (Doc. 20, p. 14) When Rack was asked if he could comment on her condition in 2017, he stated as follows:
Well, I would be able to if in fact I knew when in fact she was said to have suffered fractures to ribs, fractures to her vertebral column, things of that nature, which would be likely to put her in a situation where she would be very restricted in her activities on a significant period of time.(Doc. 20, p. 15); (Doc. 17-7, pp. 59-60) Wood concludes that Rack “established that Ms. Wood's injuries and limitations existed prior to the DLI and probably well before any date at issue in this case.” (Doc. 20, p. 15) The court does not agree. A medically determinable impairment must be “established by objective medical evidence from an acceptable medical source.” 20 C.F.R § 404.1521. A “diagnosis” or a “medical opinion” is not enough. Id. Moreover, the court does not agree with Wood's reading of this testimony.
A medical record from July of 2010 indicates that Wood suffered from “six rib fractures and two vertebral fractures from auto accidents, ” which she said occurred in the 90s. (Doc. 17-12, p. 10) However, the details of these injuries in the form of X-ray studies or other medical records were not presented to Rack. He was not presented with any objective medical evidence and therefore did not have an opportunity to opine about what functional limitations, if any, were likely to have resulted based on that evidence. (In fact, the medical record further states that Wood saw a chiropractor “occasionally for the sequelae of those” and “that sort of treatment seems to control the symptoms reasonably well.”) (Doc. 17-12, p. 10) All we know for sure is that if Rack had more information, he would have been able to give a better assessment.
After Rack made this comment, Wood's counsel summarized the evidence in the record that he believed was consistent with her being limited to light work and asked Rack if he agreed with that argument. Rack replied, “[w]ell, I don't know whether I can agree with that or not . . . .” (Doc. 17-7, p. 61) Rack's equivocal testimony does not support Wood's assertion that she had a severe back impairment prior to her DLI. The ALJ's finding on this issue did not misconstrue Rack's testimony. 11
RECOMMENDATION
For the foregoing reasons, the Magistrate Judge recommends that the District Court, after its independent review, affirm the final decision of the Commissioner.
Pursuant to 28 U.S.C. § 636(b), any party may file and serve written objections within 14 days after being served with a copy of this Report and Recommendation. If objections are not timely filed, the party's right to de novo review may be waived. The Local Rules permit the filing of a response to an objection. They do not permit the filing of a reply to a response without leave of the District Court. 12