Opinion
CV-21-00248-TUC-JAS (BGM)
03-31-2023
Jorge Alberto Bracamonte, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
BRUCE G. MACDONALD, UNITED STATES MAGISTRATE JUDGE
Currently pending before the Court is Plaintiff Jorge Alberto Bracamonte's Opening Brief (Doc. 21). Defendant filed an Answering Brief (“Response”) (Doc. 22), and Plaintiff filed a Reply Brief (“Reply”) (Doc. 23). Plaintiff brings this cause of action for review of the final decision of the Commissioner for Social Security pursuant to 42 U.S.C. § 405(g).
Pursuant to Rules 72. and 72.2 of the Local Rules of Civil Procedure, this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. Based upon the pleadings of the parties and the administrative record submitted to the Court, the Magistrate Judge recommends that the District Court deny Plaintiff's Opening Brief (Doc. 21).
Rules of Practice of the United States District Court for the District of Arizona.
Honorable Bruce G. Macdonald United States Magistrate Judge
I. BACKGROUND
A. Procedural History
On February 7, 2019, Plaintiff protectively filed a Title II application for Social Security Disability Insurance Benefits (“DIB”) alleging disability as of January 16, 2019, due to gout; arthritis in both ankles, both feet, and upper back; and pain in his left knee. See Administrative Record (“AR”) at 20, 23, 100-101, 123, 125-26, 129-31, 137, 13940, 239, 265, 284, 294. The Social Security Administration (“SSA”) denied this application on May 16, 2019. Id. at 20, 123-36, 154-57. On May 28, 2019, Plaintiff filed a request for reconsideration, and on September 11, 2019, SSA denied Plaintiff's application upon reconsideration. Id. at 20, 137-51, 158, 159-67. On September 17, 2019, Plaintiff filed his request for hearing. Id. at 20, 168-69. On December 22, 2020, a hearing was held before Administrative Law Judge (“ALJ”) Peter J. Baum. Id. at 20, 94-122. On December 31, 2020, the ALJ issued an unfavorable decision. AR at 14-27. On January 21, 2021, Plaintiff requested review of the ALJ's decision by the Appeals Council, and on May 20, 2021, review was denied. Id. at 1-8, 231-38. On June 18, 2021, Plaintiff filed this cause of action. Compl. (Doc. 1).
B. Factual History
Plaintiff was sixty-one (61) years old at the time of the administrative hearing, and fifty-nine (59) at the time of the alleged onset of his disability. AR at 95-96, 110-11, 123, 125, 129, 137, 139, 221, 239, 265, 284, 294. Plaintiff went to school in Mexico, finishing the 7th grade. Id. at 96, 98, 111, 114, 123, 129, 131, 137, 270. Prior to his alleged disability, Plaintiff worked as a crane and heavy machinery operator. Id. at 111, 270-71, 267. ... ...
Plaintiff and his counsel testified at the evidentiary hearing that he had a seventh grade education; however, the administrative forms indicate Plaintiff completed eighth grade. Compare AR 96, 98, 111, 114, with AR 123, 129, 131, 137, 270. Regardless, the record reflects that Plaintiff never went to high school.
1. Plaintiff's Testimony
a. Administrative Hearing
At the administrative hearing, Plaintiff testified that he completed the seventh grade, and can read and write in Spanish. AR at 114. Plaintiff further testified that he had not worked since January 16, 2019, noting that any money he had received from his employer were insurance payments. Id. at 114-15. Plaintiff indicated that he had not looked for work since January of 2019. Id. at 115. Plaintiff reported that he has been living with his daughter since January 2019. Id.
There are two copies of the Administrative Hearing transcript in the record. See AR at 94-122. Citations are only to the official transcript. Id. at 107-122.
Plaintiff testified that he has pain, which started in his left knee and has developed in his right knee and right hip. Id. at 115. On a scale of 0 to ten, where 10 is the worst pain imaginable, Plaintiff rated his pain as between a 7 and 8. AR at 115. Plaintiff also testified that he has pain when he walks and described a burning sensation on the bottom of his feet. Id. Plaintiff noted that he limps when he walks, and this is constant, requiring him to sit down. Id. at 116. Plaintiff confirmed that he received cortisone injections. Id. Plaintiff noted that the injections helped, although they did not completely relieve his pain. Id. Plaintiff further confirmed that he developed depression after he was told that he could no longer work. AR at 116. Plaintiff reported that he takes pain medication, but does not think he would be able to return to work as a machine operator because he cannot move freely. Id. at 116-17. Plaintiff explained that his pain increases when he has to lift something heavy and currently extends to his joints. Id. at 117. Plaintiff testified that he has difficulty lifting a 24-bottle-box, which he estimated weighs twenty-five pounds. Id. Plaintiff described his prior work as operating a cable machine, a hydraulic machine to cut metal, heavy cranes, and heavy machinery. Id.
b. Administrative Forms
i. Exertional Daily Activities Questionnaire
On March 20, 2019, Plaintiff completed an Exertional Daily Activities Questionnaire. AR at 276-81. Plaintiff reported that he lives in a house with family. Id. at 276, 279. Plaintiff described an average day to include watching television, reading, and doing stretching exercises prescribed by his provider. Id. Plaintiff further described that pain makes it difficult for him to move, climb machinery, and move objects. Id. Plaintiff estimated that he walks a half mile in approximately fifteen (15) minutes. Id. Plaintiff noted that he takes out the trash once per week, but does not do his own grocery shopping or other household chores. AR at 277, 280.
Plaintiff confirmed that he drives a car with an automatic transmission, and indicated that he can drive it for approximately two (2) hours at one time. Id. Plaintiff noted that he goes out for ten (10) to fifteen (15) minute walks once or twice per week. Id. Prior to his disability, Plaintiff described being able to ride bikes, do yardwork, as well as some household chores, and he was able to complete these tasks without stopping. Id. Plaintiff reported that he sleeps six (6) hours per day, and does not require rest or naps during the day. Id. Plaintiff listed his medications to include Celebrex, Allopurinol, Tramadol, Levothyroxine, and Methocarbamol. AR at 278, 281. Plaintiff uses a knee brace for support, and indicated that his pain wakes him up at times. Id.
ii. Work History Report
Plaintiff completed a Work History Report. AR at 282-83. Plaintiff listed his work prior to the alleged onset of his disability as a machine operator from May of 1996 until January 2019. Id. at 282. Plaintiff described this position as full-time-eight (8) hours per day, five (5) days per week-and included preparation of equipment; adjusting bolts, nut, and cables; and using the heavy machinery to cut, move, load, and unload all types of metals up to 20+ tons. Id. at 283. Plaintiff confirmed that he used machines, tools, or equipment, but denied using technical knowledge or skills, or doing any writing, completing reports, or performing similar duties. Id. Plaintiff described sitting and handling, grabbing, or grasping big objects for six (6) hours per day; and walking, standing, and climbing for one (1) to two (2) hours per day. Id. Plaintiff reported moving chains and buckets with oil to prepare equipment, as well as heavy tools, frequently every day. AR at 283. Plaintiff indicated that he frequently lifted fifty (50) pounds or more, and this was also the heaviest weight that he lifted. Id. Plaintiff did not supervise others, but was a lead worker. Id.
2. Plaintiff's Medical Records
Although the Court has reviewed the entirety of Plaintiff's medical records, its summary is generally limited to records after his alleged onset date.
On January 16, 2019, Plaintiff was seen by Rick G. Clark, D.O. at Sunnyside Medicenter, PC for an “evaluation [for] fitness for duty with complaint of right hip and left knee pain x1 year.” AR at 322. Dr. Clark noted that Plaintiff was “having difficulty functioning at work and therefore sent here this morning for a 2nd opinion evaluation.” Id. Dr. Clark further noted that Plaintiff “ha[d] been diagnosed with a torn cartilage of the right hip for which he has been referred to Orthopedics by his primary care provider[,] [and] [h]e is under the care of left knee pain with steroid injections given recently.” Id. Plaintiff's history included gout and hypothyroidism. Id. Dr. Clark observed “tenderness of the right hip with decreased range of motion[,] . . . [and] left knee is tender along the infrapatellar region with no evidence of swelling[,] and . . . free range of motion for flexion and extension. Id. Dr. Clark's plan included modified duty status and acknowledged Plaintiff's upcoming orthopedic appointment. AR at 322. Dr. Clark completed a Work Status Report, restricting Plaintiff to “Light Duty” which included no excess walking or standing; no working on elevated surfaces; no excess stooping/crouching or bending; no climbing stairs or ladders excessively; no work on uneven rocky of inclined surfaces; and no squatting or kneeling.” Id. at 324. Dr. Clark commented “[f]requent rests from standing and walking as needed.” Id. In the “Final Action” section, Dr. Clark noted accommodation was recommended, and Plaintiff had been referred to an orthopedic specialist. Id. On January 18, 2019, Plaintiff's employer reviewed Plaintiff's restricted work status requirements as set forth by Dr. Clark. Id. at 466-67. The employer observed that “[d]ue to the nature of Employees job no accommodations can be made to allow Employee to continue in that position while on light duty[,] [and] [n]o other positions that we have available that Employee may be qualified for are suitable for Employee to transfer to with the current light duty restrictions noted above including taking into account any accommodations.” AR at 466. The letter then outlined Plaintiff's entitlements regarding sick leave, vacation, short-term disability, and FMLA leave. Id. at 466-67. On January 24, 2019, Plaintiff saw Vickie Clous, FNP regarding Family and Medical Leave Act (“FMLA”) paperwork and chronic joint pain. Id. at 359-64, 406-411, 458-63. Plaintiff reported that he was taking a lower dose of allopurinol than prescribed, but “working on gout diet.” Id. at 359, 406, 458. NP Clous noted that Plaintiff is “very reluctant to take any med[ication] on a daily basis to help with his symptoms as he does not want to become dependent on meds.” Id. Plaintiff reported intermittent pain in his knee and hip, with an intensity level of 4. AR at 360, 407, 459. NP Clous counseled Plaintiff that “he may have to take meds EVERY day to have better control of his pain . . . or other option is NOT taking meds [on a] routine basis and needing to find lighter duty work.” Id. at 362, 409, 461 (emphasis in original). Plaintiff's uric acid screen was within normal limits. Id. at 358, 405, 457. On January 25, 2019, NP Clous completed a Certification of Health Care Provider for Employee's Serious Health Condition (Family and Medical Leave Act). Id. at 592-95. NP Clous noted that Plaintiff had chronic joint pain and required better pain and stiffness control, indicating that he “may need to take anti-inflam[matories] on [a] daily basis to help in spite of him not wanting to become dependent on these med[ications].” Id. at 593 (emphasis in original). NP Clous further opined that Plaintiff would suffer episodic flare-ups of his hip, leg, and knee pain, once every 6-12 weeks, lasting 2-3 days. Id. at 594.
On February 5, 2019, Plaintiff saw Michelle Thomas, PAC, at University Orthopedic Specialists for a follow-up regarding his right hip and left knee. AR at 32531. PA Thomas reviewed Plaintiff's history of “long standing left knee pain[,]” noting that he did not have a history of surgery, intermittent swelling, popping but no locking, and pain occurs primarily with weightbearing and movement. Id. at 325. Regarding Plaintiff's right hip pain, PA Thomas observed that an “MRI demonstrate[] mild labral degeneration without displaced labral tear and no significant arthritis.” Id. PA Thomas's review of Plaintiff's systems was generally unremarkable, but was positive for pain waking him up at night, and decreased mobility, joint pain, joint stiffness, and limping. Id. at 325-27. PA Thomas's physical examination of Plaintiff's right hip indicated that he exhibited a limp, positive impingement of the right hip, and active range of motion limited by pain. Id. at 327-28. As to Plaintiff's left knee, PA Thomas also noted a limp, atrophy, mild effusion, tenderness along the medial and lateral joint lines, guarded McMurray's test laterally and medially, and pain on active and passive range of motion. AR at 328. X-rays were generally unremarkable without evidence of bony deformities. Id. at 329. PA Thomas assessed a complex tear of the medial meniscus of Plaintiff's left knee. Id. Regarding Plaintiff's right hip, PA Thomas assessed a tear of his right acetabular labrum. Id. at 330. PA Thomas noted that surgery was not indicated, and Plaintiff was “safe to return to work as the labral tear will not impact his strength and function of his leg.” Id. PA Thomas performed and intraarticular injection of Plaintiff's right hip, and referred him to physical therapy for rehabilitation of both his knee and hip. Id. PA Thomas also provided Plaintiff an unrestricted work release. AR at 464-65. On February 20, 2019, Plaintiff saw Vickie Clous, FNP regarding his joint pain. Id. at 351-55, 399-403, 450-54. Plaintiff reported that orthopedics “cleared him to go back to work, [but] [Plaintiff] does not feel he can return to work performing his routine duties with his joint issues.” Id. at 351, 399, 450. On the same date, Plaintiff saw Sarah Pedrazza BHP LCSW for depression due to having been “made to stop working 6 weeks ago due to joint pain and other physical health issues.” Id. at 349, 397, 448. Plaintiff agreed to a treatment plan. Id. at 350, 398, 449.
On March 8, 2019, Plaintiff saw Allison Lane, M.D. for evaluation of his right hip pain. Id. at 332. Dr. Lane noted that Plaintiff had “seen Dr. Miller who had received x-rays and MRI arthrogram that demonstrated degenerative changes to the cartilage surface and labrum[,] [and] [n]o signs of fracture or dislocation noted on any of these images.” Id. Dr. Lane further observed that Plaintiff had also been seeing Dr. Miller for left knee pain, but “recently received a CSI into that left knee[,] [and] today he does not want to talk further about it since he is not having any discomfort.” Id. Dr. Lane's review of Plaintiff's symptoms was generally unremarkable. Id. at 332-33. Dr. Lane's examination of Plaintiff's right hip noted “pain to palpation anterior hip flexor tendons iliopsoas and rectus[,] [but] [n]o swelling[,] [and] [n]o deformity.” Id. at 333. Plaintiff also had pain on active range of motion. AR at 333. Dr. Lane assessed a degenerative tear of the acetabular labrum of Plaintiff's right hip. Id. at 334. Dr. Lane noted Plaintiff's “[h]istory, physical exam, radiographs and MRI reviewed from radiology limited consistent with degenerative changes to his right hip[,] [and] [o]f note he does have degenerative changes bilaterally though currently today he is symptomatic with the right hip.” Id. at 334; see also AR at 336-39 (Radiology Limited 3/28/2018 MRI results reviewed by Dr. Lane). Dr. Lane discussed home exercise versus physical therapy, as well as medications, heat, and ice. Id. at 334. Dr. Lane performed a corticosteroid injection in Plaintiff's right hip joint. Id. On March 13, 2019, Plaintiff saw Tatiana Nieuwenhuys, FNP regarding left knee and right hip pain. AR at 344-48, 392-96, 443-47. Plaintiff described his left knee pain as aching and sharp, constant, with an intensity level of 2. Id. at 346, 394, 445. NP Nieuwenhuys's examination of Plaintiff was generally unremarkable. Id. at 346-47, 394-95, 445-46. NP Nieuwenhuys further noted that Plaintiff's right hip joint pain was “significantly improved since cortisone hip injection” and discussed strengthening and range of motion exercises, use of ice or heat, and medications for Plaintiff's left knee joint pain. Id. at 347, 395, 446. On March 20, 2019, Plaintiff followed up with Vickie Clous, FNP regarding his depression which he reported was improved with medication. Id. at 340-43, 355-57, 388-91, 43942, 454-56. On March 22, 2019, Michael D. Miller, M.D. provided a work release for Plaintiff. AR at 468. Dr. Miller reported that “[a]t the time of [Plaintiff's] visit [with PA Michelle Thomas] he was not free from pain but voiced that he felt he could complete his job tasks effectively and safely with his discomfort.” Id. Dr. Miller noted that Plaintiff “does not have degenerative disease of his knees or hips that requires surgical intervention or that effect the mechanical function of his joints.” Id. Dr. Miller opined that it was appropriate for Plaintiff to return to work without restrictions because “he is able to manage his symptoms effectively with anti-inflammatories such as Celebrex.” Id. at 468. Dr. Miller cautioned that they did “not recommend use of muscle relaxers or other medications which may affect his judgment such as Tramadol as he is working with heavy machinery.” Id.
On July 29, 2019, Troy McDaniel, M.D. read a film of Plaintiff's left knee and found mild medial narrowing, without bony abnormalities. AR at 469. On September 5, 2019, Plaintiff saw Douglas G. Cook, FNP at Marana Health Care for a follow-up and medication refill. Id. at 543-47. Plaintiff's “[u]sual PCP [was] no longer with MHC[,] . . . [and] [Plaintiff] request[ed] Levothyroxine refill until he can establish care with a provider closer to where he resides at Freedom Park.” Id. at 543.
On January 16, 2020, Plaintiff saw Eloisa Vega, M.D. regarding thyroid medication refills. AR at 548-52. Plaintiff reported that he had been doing well. Id. at 548. Plaintiff reported generalized body aches at an intensity of three (3). Id. at 549. Plaintiff's uric acid levels were normal. Id. at 553. On February 10, 2020, Plaintiff saw Phyllis Schling, FNP for a follow-up regarding his laboratory results. AR at 558-65. Plaintiff reported he had “a gouty attack” in December 2019. Id. at 558. Plaintiff described constant, aching pain in his joints and knees at an intensity of three (3). Id. at 560. NP Schling noted that Plaintiff's gout was improved and recommended increased water intake. Id. at 561.
On June 24, 2020, Plaintiff's uric acid results were within normal limits. Id. at 570. On September 14, 2020, Plaintiff returned to NP Schling for a follow-up. Id. at 571-79. NP Schling's examination was unremarkable. Id. at 573. NP Schling attributed Plaintiff's right hip joint pain to atorvastatin and discontinued it. Id. at 574.
b. Examining physicians
i. Jeri B. Hassman, M.D.
On August 29, 2019, Jeri B. Hassman, M.D. examined Plaintiff at the request of the Arizona Department of Economic Security (“AZDES”). AR at 470-76. Plaintiff reported that he was diagnosed with gout in 2017 and is taking allopurinol; has pain in multiple joints but especially his left knee; has frequent tingling down both arms; was having right hip pain, and in favoring his right hip put more stress on his left leg, developing left knee pain; had three (3) injections into his right hip, which really decreased the pain. Id. at 470. Dr. Hassman's review of Plaintiff's systems was generally unremarkable, but noted Plaintiff's occasional mid and low back pain, blurry vision and ringing in his ears, and tingling of his left arm more than his right. Id. at 471. Dr. Hassman also noted Plaintiff's July 29, 2019, left knee x-rays which showed a mild narrowing of the medial compartment without osteophytes or sclerosis. Id. Dr. Hassman observed that Plaintiff was in no acute distress. Id. Dr. Hassman's physical examination of Plaintiff found:
His gait was mostly normal but he had some stiffness of the left knee. He did not have any assistive device. He had normal stride length and normal speed of ambulation. Heel walking and toe walking produced some increase in left knee pain, but he was able to perform heel walking and toe walking. He was able to hop on his right foot, but refused to hop on his left foot because of left knee pain. He was able to perform bending and kneeling, but he had minimal difficulty getting up with his left leg because of left knee pain. He was independent getting in and out of the chair and independent getting on and off the examining table and independent getting dressed and undressed.AR at 471. Dr. Hassman further observed that Plaintiff had a full range of motion in all of his joints, without swelling, warmth, tenderness, or deformities, but Plaintiff complained of pain in most of them. Id. The remainder of her examination “was remarkably unremarkable.” Id. at 472.
Dr. Hassman completed a Medical Source Statement of Ability to Do Work-Related Activities (Physical) and opined that Plaintiff's conditions would not impose any limitations for twelve (12) continuous months. Id. at 473.
3. Vocational Expert Shirley K. Ripp's Testimony
Mr. Scott Nielson testified as a vocational expert at the administrative hearing. AR at 20, 118-21. The ALJ explained that Plaintiff's past work included using both cranes and heavy machinery simultaneously, reducing airplanes and other military equipment for recycling or disposal. Id. at 119. Ms. Ripp described the position of crane operator, Dictionary of Occupational Titles (“DOT”) number 921.663-022, with a Specific Vocational Preparation (“SVP”) of 4, and a medium exertional level. Id. at 119. Ms. Ripp next described the job of machine setter, DOT number 616.360-022, an SVP of 6, and medium exertional level, but heavy as performed. Id. at 119-20.
Ms. Ripp testified that an individual could be absent from a job one (1) day per month before they would be considered unemployable. Id. at 120. Ms. Ripp further testified that typically, an employee receives a fifteen (15) minute break in the morning, as well as a fifteen (15) minute break in the afternoon, and a half-hour to an hour lunch break. AR at 120. Ms. Ripp opined that anything over that, up to ten (10) percent would be excessive. Id. Ms. Ripp further opined that there would not be any transferrable skills from this composite job to a light job. Id. Ms. Ripp confirmed that there would not be any transferrable skills to a sedentary job, either. Id.
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). This Court may “set aside the Commissioner's denial of disability insurance benefits when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted); see also Treichler v. Comm r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014).
Substantial evidence is “‘more than a mere scintilla[,] but not necessarily a preponderance.'” Tommasetti, 533 F.3d at 1038 (quoting Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003)); see also Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). Further, substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 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). Moreover, the court may not focus on an isolated piece of supporting evidence, rather it must consider the entirety of the record weighing both evidence that supports as well as that which detracts from the Secretary's conclusion. Tackett, 180 F.3d at 1098 (citations omitted).
III. ANALYSIS
A. The Five-Step Evaluation
The Commissioner follows a five-step sequential evaluation process to assess whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(4). This process is defined as follows: Step one asks is the claimant “doing substantial gainful activity[?]” If yes, the claimant is not disabled; step two considers if the claimant has a “severe medically determinable physical or mental impairment[.]” If not, the claimant is not disabled; step three determines whether the claimant's impairments or combination thereof meet or equal an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App.1. If not, the claimant is not disabled; step four considers the claimant's residual functional capacity and past relevant work. If claimant can still do past relevant work, then he or she is not disabled; step five assesses the claimant's residual functional capacity, age, education, and work experience. If it is determined that the claimant can make an adjust6ment to other work, then he or she is not disabled. 20 C.F.R. § 404.1520(a)(4)(i)-(v).
In the instant case, the ALJ found that Plaintiff had not engaged in substantial gainful activity since January 16, 2019. AR at 23. At step two of the sequential evaluation, the ALJ found that “the claimant has the following medically determinable impairments: dry eye, chronic sinusitis, hyperlipidemia, gout, hypothyroidism, degenerative joint disease and depression (20 CFR 404.1521 et seq.).” Id. The ALJ further found that “[t]he claimant does not have an impairment or combination of impairments that has significantly limited (or is expected to significantly limit) the ability to perform basic work-related activities for 12 consecutive months; therefore, the claimant does not have a severe impairment or combination of impairments (20 CFR 404.1521 et seq.).” Id. Accordingly, the ALJ determined that “[t]he claimant as not been under a disability, as defined in the Social Security Act, from January 16, 2019, through the date of this decision (20 CFR 404.1520(c)). Id. at 27.
Plaintiff asserts that the ALJ erred by (1) failing to find that he had a severe medically determinable impairment; and (2) failing to account for the episodic nature of his impairments, especially his gout. See Opening Br. (Doc. 21) at 1, 11-15.
B. Non-Severity Finding
“To establish whether 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).
1. Definition of Severe Medically Determinable Impairment
Plaintiff asserts that “[a]n impairment is ‘not severe if it has no more than a minimal effect on an individual's physical or mental ability(ies) to do basic work activities[.]” Reply (Doc. 23) at 2 (citing SSR 85-28). Here, the ALJ recognized this definition in his decision, stating, “[a]n impairment or combination of impairments is ‘not severe' when medical and other evidence establish only a slight abnormality or a combination of slight abnormalities that would have no more than a minimal effect on an individual's ability to work[.]” AR at 21-22 (citing 20 CFR 404.1522; then citing SSR 85-28 and 16-3p). The ALJ properly delineated the definition of severe and medically determinable impairment. As such, he did not err.
2. Episodic Impairment
Plaintiff argues that “the Commissioner did not dispute that the ALJ erroneously failed to address nurse practitioner Ms. Clous's opinion about the duration and frequency of Mr. Bracamonte's flares.” Reply (Doc. 23) at 3 (citations omitted).
NP Clous's opinion, however, was not borne out by the medical evidence. NP Clous counseled Plaintiff that “he may have to take meds EVERY day to have better control of his pain . . . or other option is NOT taking meds [on a] routine basis and needing to find lighter duty work.” Id. at 362, 409, 461 (emphasis in original). The records indicates that any “resistance to treatment was [not] attributable to [Plaintiff's] mental [or physical] impairments] rather [it was] h[is] own personal preference[.]” Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012), superseded by regulation on other grounds (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). Moreover, Plaintiff's gout has been well-controlled since his alleged onset date, with only one notation in the record regarding a possible flare in December 2019. AR at 558. The ALJ properly reviewed Plaintiff's treatment records and noted improvement with treatment and normal findings. Where “the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (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). The ALJ properly evaluated the medical findings describing Plaintiff's symptoms and improvement with conservative treatment to determine that his medically determinable impairments were non-severe.
IV. CONCLUSION
Based on the foregoing, the Court finds the ALJ did not err, Plaintiff failed to meet his burden to demonstrate that he had severe physical or mental impairments sufficient to qualify him 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. 21) 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-21-00248-TUC-JAS.
Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review.