Opinion
CV-20-00170-TUC-RCC (DTF)
03-30-2021
Joseph Jones, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Honorable D. Thomas Ferraro, United Slates Magistrate Judge
Plaintiff Joseph Jones (Jones) brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social Security (Commissioner) which found Jones was not disabled. (Doc. 1.) This matter is fully briefed. (Docs. 18, 21, 22.) This matter was referred to the undersigned United States Magistrate Judge for report and recommendation. (Doc. 14.) As more fully set forth below, based on the pleadings and the submitted administrative record (AR), the Court recommends that the District Court, after its independent review, affirm the decision of the Commissioner because while the ALJ did err, the errors were harmless.
I. BACKGROUND
Jones was born in 1955 and is closely approaching retirement age. (AR 35, 59, 157.) He previously worked in as a Licensed Practical Nurse (LPN), a Certified Nursing Assistant (CNA), a material handler, a warehouse worker, a manager, and a janitor. (AR 36, 38, 51, 53, 119.) He has some college education. (AR 35, 199.)
On August 5, 2016, Jones protectively filed a Title XVI application for Supplemental Security Income (SSI) alleging disability beginning June 1, 2014. (AR 157-77.) On January 6, 2017, Jones's claims were initially denied. (AR 94.). On June 27, 2017, Jones's claims were denied on reconsideration. (AR 99-100.) Jones filed a request for hearing. (AR 103.) On January 9, 2019, an administrative hearing was held before Administrative Law Judge (ALJ) Laura Speck Havens. (AR 31.) On March 4, 2019, the ALJ issued her unfavorable decision denying Jones's claims. (AR 22.)
At step one, the ALJ determined that Jones had not engaged in substantially gainful activity since August 5, 2016. (AR 15.) At step two, the ALJ determined Jones had severe impairment in the form of degenerative disc disease. (AR 16.) The ALJ concluded that Jones “has a number of impairments that when considered singly and in combination do not have more than a minimal effect on [Jones's] physical or mental ability to perform basic work activities, ” specifically discounting Jones's anxiety and asthma. Id. At step three, the ALJ found that Jones did not have an impairment or combinations of impairments that meets or is equal in severity to one listed in 20 C.F.R. Part 404, Subpart P, App. 1. (AR 18.)
After step three and before step four, the ALJ determined that Jones has the residual functional capacity (RFC) to perform medium work, as defined in 20 C.F.R. § 416.967(c), except Jones should avoid more than occasional exposure to hazards. Id. The ALJ credited the opinion of Jerome Rothbaum, M.D. (AR 19-20.) She afforded the opinion of Ben Scwartz, PT, DPT, no weight because he was “not considered an acceptable medical source.” (AR 20.) She also gave partial weight to the opinion of the January 2017 reviewing doctors as it was quite conclusory, and substantial weight to the opinions of the three remaining reviewing doctors. Id. She also concluded that Jones's mental impairments were more limiting than opined by Glenn Marks, Ph.D., and Noelle Rohen, Ph.D. Id. The ALJ considered the third-party function report but determined that the statements did not warrant a modification. (AR 20-21.)
At step four, the ALJ established that Jones was able to perform his past relevant work as it did not require performance precluded by his RFC. (AR 21.) The ALJ relied on the testimony of the vocational expert (VE). Id. Thus, the ALJ concluded that Jones was not disabled. Id.
Jones alleged disability because of “severe pain throughout [his] entire body.” “extreme anxiety, ” “chronic back pain, ” “valley fever (keeps coming back), ” “difficulty breathing.” (AR 198.) During this matter, Jones was diagnosed with benign paroxysmal positional vertigo. (AR 1082.)
Since 2014, Jones has complained and received treatment for bilateral foot pain, back and neck pain. (AR 343, 406, 466, 472, 613, 615, 1039-41.) In 2014, imaging showed bilateral hallux valgus deformities, and possible hammertoe deformities on the second through fifth toes on both feet. (AR 472.) His gait was described as normal numerous times, but one report described his gait as antalgic. (AR at 413, 417, 420, 426, 430, 434, 444, 449, 453, 457, 468 (2014), 364, 367, 380, 386, 395, 408, 547, 552, 617 (2015), 532, 585 (2016), 656, 925 (2017), 642, 645, 649, 652, 1016, 1020, 1027, 1060, 1069 (2018), 1041(antalgic in 2017)).
Jones also received treatment from pain management specialists and physical therapists. (AR 485, 520, 526, 552, 539, 573, 1058.) He had a lung nodule that was diagnosed as coccidioidomycosis (valley fever). (AR 351.)
In his adult function report completed on October 30, 2016, Jones stated his “feet [were] always numb.” (AR 228.) He claimed that he would “get up in the mornings” and “not do any task because of the pain.” (AR 229.) He further reported he did not shave “all the time” or “care for his hair every day due to the pain.” (AR 230) He asserted it would take him hours to make an “extremely simple” meal, which he did “very rarely.” Id. He would go shopping by phone and mail, and “very seldom shop [in] grocery stores.” (AR 231.) He contended that he would “only go to church about 2 times a month” and would not “visit.” (AR 232.)
In the third-party adult function report completed on November 1, 2016, Jones's wife stated that Jones “constantly complains about he is in pain” and how he “eats breakfast . . . then he goes back to bed or lies on top of the bed.” (AR 237.) She reported that he did not “feel like bathing every day, ” that he would “only shave once a week, ” and he needed reminders to shower. (AR 238-39.) She relayed that he could not “stand long enough to prepare any meals.” (AR 239.)
In April 2017, Jones completed another adult function report, in which he claims his “feet tingle [and] are constantly stay [sic] numb.” (AR 260.) He again reported that he bathed and shaved once a week. (AR 262.) He asserted that he could not “stand long enough to prepare [his] meals.” Id. He also reduces his visits to church, now only attending “once a week.” (AR 264.)
In 2016, Jerome Rothbaum, M.D., performed his first examination of Jones. (AR 589.) Dr. Rothbaum concluded that Jones could lift fifty pounds occasionally and twenty-five pounds frequently. (AR 593.) He also opined that Jones should be limited in working around heights and moving machinery and in reaching and climbing ladders or scaffolds. (AR 594.)
In May 2017, Jones went to the emergency room for “dizziness” and “nausea.” (AR 902.) The doctors assessed this as “acute benign positional vertigo.” (AR 1076.) Jones reported to his primary care physician that the intensity was “moderate to severe.” (AR 1176.) The primary care physician then performed the Dix-Hallpike maneuver, which was positive on the left side with horizontal nystagmus. (AR 1178.) Dr. Rothbaum performed another examination of Jones. (AR 597.) He noted the recent episode of vertigo and that Jones had not met with the ear, nose, and throat physician (ENT). Id. Dr. Rothbaum noted that Jones walked normally in and out of the office, “sat on the table normally, lied down, [and] got up from the table normally.” (AR 598.) Dr. Rothbaum no longer opined that Jones had any limitation in climbing ladders or in reaching; all other limitations remained the same. (AR 600-01.)
In June 2017, Jones went to an ENT for his vertigo. (AR 1032.) The ENT opined that he had “benign positional vertigo” and scheduled him for an Epley maneuver. Id.
In 2019, Ben Schwartz, PT, DPT, filled out a form diagnosing Jones with “low back pain.” (AR 1182.) In a form report, Provider Schwartz opined that Jones could only sit for two hours and stand or walk for one hour in an eight-hour workday. Id. He recommended Jones shift his position every twenty minutes. Id. He also stated that Jones had no significant limitation with “reaching, handling, and or fingering, ” and would not miss any work because of his impairments. (AR 1182-83.)
At the administrative hearing, Jones testified that he was still suffering from vertigo, but that it was “not as bad” as the “episode that lasted, like, a month, ” presumably referring to the initial occurrence. (AR 49.) He also testified that he now lived alone and was able to dress and bathe himself unaided. (AR 40.) He stated he did chores alone when he felt like it and just did “a little at a time.” Id. He explained he used the bus to go anywhere outside the house because he did not drive. (AR 42.) He also went to church when possible. (AR 42-43.) He claimed to have no problems eating. (AR 43.) He testified that he could only walk for ten minutes and could only sit for twenty to thirty minutes because his back and legs would begin to hurt. (AR 45.)
Vocational expert (VE) John Komar testified at the administrative hearing. (AR 50.) He testified that an individual with Jones's background, who could sit for six hours, stand for six hours, walk for six hours, occasionally lift fifty pounds, frequently lift twenty-five pounds and could not be exposed to heights or moving machinery, could work as a warehouse worker generally. (AR 54.) He also testified that there would be no skills transferable to a light position. (AR 56.)
On March 20, 2020, the Appeals Council denied Jones's request for review thus making the ALJ's unfavorable decision the Commissioner's final decision for purposes of this Court's review under 42 U.S.C. §§ 405(g) and 1383(c)(3). (AR 1-3.) On April 21, 2020, Jones filed a complaint challenging the ALJ's unfavorable decision. This Court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
II. ISSUES ON REVIEW
Jones raises two issues on review. First, Jones argues that the “ALJ ignored substantial evidence of benign paroxysmal vertigo and peripheral neuropathy and failed to account for these conditions in the RFC.” (Doc. 18 at 2.) Second, Jones challenges the ALJ's discounting of Provider Schwartz's opinion absent germane reasons to do so. Id. The Commissioner argues against Jones's claims of error and that any error would be harmless. (Doc. 21.)
III. STANDARD OF REVIEW
“An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his 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 he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he 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)).
The court may overturn the decision to deny benefits only “when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). This is 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 (quoting Richardson v. Perales, 402 U.S. 389, 400 (1971)); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). The Commissioner's decision, however, “cannot be affirmed simply by isolating a specific quantum of supporting evidence.” Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). Reviewing courts must consider the evidence that supports as well as detracts from the Commissioner's conclusion. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975). Even if the ALJ made an error, courts may affirm if the error was harmless, in other words that 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)).
IV. DISCUSSION
Failure to Consider Substantial Evidence of Peripheral Neuropath, and Benign Paroxysmal Positional Vertigo
Jones argues that the ALJ failed to evaluate or consider evidence of impairments from benign paroxysmal vertigo or peripheral neuropathy. (Doc. 18 at 7.) The Commissioner replies that the error was harmless. (Doc. 21 at 6.)
ALJs are required to consider all impairments that result in limitations or restrictions, even those that are not severe. See Celaya v. Halter, 332 F.3d 1177, 1182 (9th Cir. 2003). Accordingly, the ALJ had a duty to consider Jones's diagnoses of benign paroxysmal vertigo or peripheral neuropathy and the effect these conditions may have had on his other impairments and his ability to work. However, Jones is required to set forth any functional limitation because of the diagnoses. See Burch v. Barnhart, 400 F.3d 676, 684 (9th Cir. 2005).
Jones argues that this error was not harmless because the ALJ and doctors failed to consider substantial evidence and because any reduction in the RFC would result in a finding of disability under Medical-Vocational Rule 202.06. (Doc. 18 at 9.) He argues that his function report indicated that he could not stand long because of the neuropathy. Id. at 8. The Commissioner argues that Jones failed to show how his impairments required greater functional limitations than those the ALJ assessed. (Doc. 21 at 6.)
A failure to consider a condition or impairment is not harmless if it results in an RFC that is “incomplete, flawed, and not supported by substantial evidence in the record.” Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012). Here, Jones has not provided any argument as to why these conditions would result in a further limitation than those the ALJ already found beyond that they “facially limit standing and walking.” (Doc. 22 at 2.) Jones points to a report that his gait was antalgic and reduced reflexes and his functional reports. (Doc. 18 at 8.) Jones was able to walk with a normal gait in all but one evaluation. Even after the vertigo diagnosis and the onset of the neuropathy, Jones was able to walk normally, sit on the table normally, and lie down and get up normally. (AR 598.) Further, the ALJ discounted Jones's statements regarding his function because among others they conflicted with his daily reported activity. (AR 19.) The Court concludes that Jones has not shown that the RFC is incomplete, flawed, or unsupported by substantial evidence. In fact, the consistent normal gait and movement supports the ALJ's conclusions.
Accordingly, this Court recommends finding that the Commissioner's decision was harmless and affirming the decision.
Weight Assigned to Physical Therapist's Opinion
Provider Schwartz opined that out of an eight-hour workday Jones could only sit for two hours, and stand or walk for one hour. (AR 1182.) Further, he stated that Jones would need to shift position every twenty minutes but would never miss work because of his impairments. (AR 1182-83.) He also concluded that Jones had no limitation with grasping, turning, or twisting objects; fine manipulation; or reaching. (AR 1182.) The ALJ stated the following:
Treating provider, Ben Schwartz, PT, DPT, submitted a medical source statement on the Claimant's behalf in January 2019 (Exhibit 15F). However, the undersigned acknowledges that Mr. Schwartz is not considered an acceptable medical source according to the rules and regulations of the Social Security Administration. Thus, the undersigned affords no weight to Mr. Schwartz's opinion.AR 20.
Jones contends the ALJ rejected Provider Schwartz's testimony absent a germane reason. (Doc. 18 at 9.) ALJs are required to provide germane reasons for rejecting a lay witness's testimony. Valentine v. Comm'r Social Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009). Merely being a lay witness or other source is not a germane reason for rejecting the testimony. Cf. Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996) (rejecting denial of lay witness testimony based on their status as family member as germane reason). The ALJ therefore erred by failing to provide a germane reason to reject Provider Schwartz's testimony.
Jones argues that this constitutes harmful error because Provider Schwartz had a treating relationship with Jones and opined less than sedentary limitations, which would have influenced Jones's RFC. (Doc. 18 at 10.) The Commissioner asserts that any error was harmless because her reasons for rejecting Jones's testimony “apply equally well” to Provider Schwartz. (Doc. 21 at 8.) The Commissioner emphasizes that the ALJ's reliance on Jones's “conservative treatment regimen; examination findings showing [Jones] consistently had a normal gait and normal straight leg raise tests; imaging showing only mild degenerative disc disease in his lumbar spine; and [Jones]'s daily activities” support discounting Provider Schwartz's opinion. Id. at 9.
[I]f an ALJ has provided well-supported grounds for rejecting testimony regarding specified limitations, we cannot ignore the ALJ's reasoning and reverse the agency merely because the ALJ did not expressly discredit each witness who described the same limitations. Further, where the ALJ rejects a witness's testimony without providing germane reasons, but has already provided germane reasons for rejecting similar testimony, we cannot reverse the agency merely because the ALJ did not “clearly link his determination to those reasons.”Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012), superseded on other grounds by 20 C.F.R. § 404.1502(a).
Here, the ALJ rejected Jones's statements concerning intensity, persistence, and limiting effect of his symptoms because they were “not entirely consistent with the medical evidence and other evidence in the record.” (AR 19.) The ALJ pointed to his conservative treatment, his normal gait and movement, reports that Jones's pain was “well managed, ” and Jones's reported daily activities. Id. Jones does not challenge the ALJ's evaluation of his testimony or statements, even if he disagrees with it. (Doc. 22 at 2.) The ALJ provided well-supported grounds for rejecting Jones's statements about his limitations, which are similar to Provider Schwartz's opinion. Additionally, these reasons would have provided germane reasons for discounting Provider Schwartz's opinion.
Thus, the Court recommends finding the Commissioner's error harmless and affirming the decision.
V. RECOMMENDATION
Based on the foregoing, the Magistrate Judge RECOMMENDS that 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), Federal Rules of Appellate Procedure, 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, e), 72(b). Thereafter, the parties have fourteen (14) days within which to file a response to the objections. No reply briefs shall be filed unless leave to do so is granted by the district court. If any objections are filed, this action should be designated case number: CV 20-00170-TUC-RCC. 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).