Opinion
CV-21-01937-PHX-DLR (MHB)
01-31-2023
Ronnie John Miranda, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
TO THE HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT COURT.
REPORT AND RECOMMENDATION
Honorable Michelle H. Bums, United States Magistrate Judge.
At issue is the denial of Plaintiff Ronnie John Miranda's Application for Disability Insurance Benefits (“DIB”) by the Social Security Administration (“SSA”) under Title II of the Social Security Act (“the Act”). Plaintiff filed a Complaint seeking judicial review of that denial (Doc. 1), and upon referral from the Honorable Douglas L. Rayes, U.S. District Court, this Court now addresses Plaintiff's Opening Brief (Doc. 18), Defendant Social Security Administration Commissioner's Response Brief (Doc. 21), and Plaintiff's Reply Brief (Doc. 22). The Court has reviewed the briefs and Administrative Record (Doc. 14, “R”.) and issues the following Report and Recommendation in accordance with the January 31, 2022, Order of the District Court (Doc. 14), and pursuant to 28 U.S.C. § 636(b) and the Local Rules of Civil Procedure, LRCiv 72.2(a)(10). This Court recommends affirming the Administrative Law Judge's (“ALJ”) decision (R. at 13-25) for the reasons addressed herein.
I. BACKGROUND
Plaintiff protectively filed an application for DIB July 24, 2019, for a period of disability beginning on January 14, 2019. (R. at 13). Plaintiff's claims were denied initially on January 16, 2020, and upon reconsideration on August 4, 2020. (Id.) Plaintiff testified before an ALJ in a hearing regarding his claims on March 5, 2021. (Id.) The ALJ denied his claims on April 14, 2021. (R. at 13-25). On September 17, 2021, the Appeals Council denied his request for review of the ALJ's decision. (R. at 1-5). On November 16, 2021, Plaintiff filed this action seeking judicial review. (Doc. 1).
The Court has reviewed the medical evidence in its entirety and finds it unnecessary to provide a complete summary here. The pertinent medical evidence will be discussed in addressing the issues raised by the parties. In short, upon consideration of the medical records and opinions, the ALJ evaluated Plaintiff's alleged disability based on the severe impairments of benign paroxysmal positional vertigo/vestibulopathy, cerebral ventriculomegaly due to brain atrophy, coronary artery disease, and obesity. (R. at 16).
Ultimately, the ALJ evaluated the medical evidence and opinions and concluded that Plaintiff was not disabled. (R. at 25). The ALJ found that Plaintiff did “not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” (R. at 18). Next, the ALJ found that Plaintiff had the residual functional capacity (“RFC”) to “perform light work as defined in 20 CFR 404.1567(b)” with certain function limitations and concluded that Plaintiff “is capable of making a successful adjustment to other work that exists in significant numbers in the national economy.” (R. at 19, 25).
II. LEGAL STANDARD
In determining whether to reverse an ALJ's decision, the district court reviews only those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court may set aside the Commissioner's disability determination only if the determination is not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, but less than a preponderance; it is relevant evidence that a reasonable person might accept as adequate to support a conclusion considering the record as a whole. Id. To determine whether substantial evidence supports a decision, the court must consider the record as a whole and may not affirm simply by isolating a “specific quantum of supporting evidence.” Id. As a general rule, “[w]here the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). (citations omitted).
To determine whether a claimant is disabled for purposes of the Act, the ALJ follows a five-step process. 20 C.F.R. § 416.920(a). The claimant bears the burden of proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether the claimant is presently engaging in substantial gainful activity. 20 C.F.R. § 416.920(b). If so, the claimant is not disabled, and the inquiry ends. Id. At step two, the ALJ determines whether the claimant has a “severe” medically determinable physical or mental impairment. 20 C.F.R. § 416.920(c). If not, the claimant is not disabled, and the inquiry ends. Id. At step three, the ALJ considers whether the claimant's impairment or combination of impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404. 20 C.F.R. § 416.920(d). If so, the claimant is automatically found to be disabled. Id. If not, the ALJ proceeds to step four. Id. At step four, the ALJ assesses the claimant's RFC and determines whether the claimant is still capable of performing past relevant work. 20 C.F.R. § 416.920(e). If so, the claimant is not disabled, and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step, where she determines whether the claimant can perform any other work in the national economy based on the claimant's RFC, age, education, and work experience. 20 C.F.R. § 416.920(g). If so, the claimant is not disabled. Id. If not, the claimant is disabled. Id.
III. ANALYSIS
Plaintiff raises two arguments for the Court's consideration: (1) whether the ALJ erred at step five to properly determine a “significant range of work” Plaintiff could perform within the RFC limitations, and (2) did the ALJ erroneously reject Plaintiff's symptom testimony. (Doc. 18 at 1). Plaintiff also requests this Court to remand the case for an award of benefits. (Id. at 16-17).
A. The ALJ properly determined a “significant range of work” for Plaintiff to perform at step five.
Plaintiff argues that once the ALJ found Plaintiff could not return to his past relevant work at step five, the burden shifted to the Commissioner to show a “significant range of work” was available in the national economy that the Plaintiff could perform, and the Commissioner failed to meet this burden. (Doc. 18 at 8-12).
When an ALJ has determined that a Plaintiff cannot perform their past relevant work, the burden shifts to the Commissioner to show that Plaintiff “can perform some other work that exists in ‘significant numbers' in the national economy, taking into consideration the claimant's residual functional capacity, age, education, and work experience.” Tackett, 180 F.3d at 1100. The Commissioner can meet this burden in one of two ways: “(a) by the testimony of a vocational expert, or (b) by reference to the Medical-Vocational Guidelines [‘the grids'] at 20 C.F.R. pt. 404, subpt. P, app. 2.” Id. at 1101 (emphasis omitted).
The grids are matrices of the “four factors identified by Congress-physical ability, age, education, and work experience-and set forth rules that identify whether jobs requiring specific combinations of these factors exist in significant numbers in the national economy.” Heckler v. Campbell, 461 U.S. 458, 461-62, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983) (footnotes omitted). For purposes of applying the grids, there are three age categories: younger person (under age 50), person closely approaching advanced age (age 50-54), and person of advanced age (age 55 or older). 20 C.F.R. § 404.1563(c)-(e). For purposes of applying the Grids, the age of a disability claimant “should be considered at the time of the ALJ's decision.” Little v. Berryhill, 690 Fed.Appx. 915, 917 (9th Cir. 2017).
In the present case, Plaintiff relies on Lounsburry v. Barnhart, 468 F.3d 1111, 111617 (9th Cir. 2006) and Maxwell v. Saul, 971 F.3d 1128, 1130-31 (9th Cir. 2020) as justification for his argument that the Commissioner, through the ALJ, failed to meet the burden to provide for a significant range of work that Plaintiff could perform at step five. (Doc. 18 at 9-11). In Lounsburry, the Ninth Circuit found that the claimant in that case had skills that transferred to one occupation within that claimant's RFC capacity, but one occupation did not constitute a significant range of work. Id. at 1117. Subsequently, the Court under Maxwell later held that two occupations did not constitute a significant range of work, and a ‘significant range' must require more than two. Id. at 1130-31. Thus, Plaintiff in this case surmises that because the ALJ identified only one job Plaintiff could perform, based upon the holdings in Lounsberry and Maxwell, one occupation does not satisfy the Commissioner's burden of showing a significant range of work available in the national economy for Plaintiff to perform. Under certain circumstances, Plaintiff would be correct in their conclusion; however, Plaintiff has failed to consider a significant factor in the Ninth Circuit's analysis under Lounsberry and Maxwell-the Plaintiff's age category.
In both Ninth Circuit cases, the claimants were 55 years of age at the time of the ALJ's decision, placing them in the ‘person of advanced age' category. Turning to the facts of the present case, Plaintiff was 54 years old at the time of the ALJ's decision which placed Plaintiff in the ‘person closely approaching advanced age' category. The Ninth Circuit has recognized that the rule promulgated in Maxwell is only applicable to those persons aged 55 or older in the ‘advanced age' category. “Maxwell was interpreting a rule that applies only to ‘individuals of advanced age,' defined as individuals who are fifty-five or older. Segobia v. Kijakazi, No. 20-55943, 2021 WL 4317349, at *2, fn 1 (9th Cir. September 23, 2021) (citation omitted). Based upon this precedent, Plaintiff's argument is without merit. Plaintiff was 54 years old at the time of the ALJ's decision and not within the ‘person of advanced age' category. Thus, the holdings in Lounsberry and Maxwell do not apply to the present case. The ALJ did not err at step five and properly found a significant range of work in the national economy that was available to Plaintiff to perform within his RFC determination.
B. The ALJ properly evaluated Plaintiff's symptom and pain testimony.
Plaintiff argues that the ALJ failed to provide clear and convincing reasons supported by substantial evidence to reject Plaintiff's symptom testimony. (Doc. 18 at 1216).
An ALJ performs a two-step analysis to evaluate a claimant's testimony regarding pain and symptoms. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). First, the ALJ evaluates whether the claimant has presented objective medical evidence of an impairment “which could reasonably be expected to produce the pain or symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc) (internal quotation marks omitted)). Second, absent evidence of malingering, an ALJ may only discount a claimant's allegations for reasons that are “specific, clear and convincing” and supported by substantial evidence. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). “The clear and convincing standard is the most demanding required in Social Security cases.” Garrison, 759 F.3d at 1015.
“[T]he ALJ must specifically identify the testimony she or he finds not to be credible and must explain what evidence undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). General findings regarding the Plaintiff's credibility are insufficient. Id. “Although the ALJ's analysis need not be extensive, the ALJ must provide some reasoning in order for [the Court] to meaningfully determine whether the ALJ's conclusions were supported by substantial evidence.” Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). However, “an ALJ [is not] required to believe every allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). “[T]he ALJ may consider inconsistencies either in the claimant's testimony or between the testimony and the claimant's conduct.” Molina, 674 F.3d at 1112. For instance, the ALJ may consider “‘whether the claimant engages in daily activities inconsistent with the alleged symptoms.'” Id. (quoting Lingenfelter, 504 F.3d at 1040). Additionally, “[a]lthough [a] lack of medical evidence cannot form the sole basis for discounting pain [or symptom] testimony, it is a factor that the ALJ can consider in his credibility analysis.” Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005).
The ALJ's decision accounted for Plaintiff's physical impairments encompassing benign paroxysmal positional vertigo/vestibulopathy, cerebral ventriculomegaly due to brain atrophy, coronary artery disease and obesity. (R. at 16). Plaintiff testified that he experienced dizzy spells that cause him to feel like he is spinning or going to pass out, and he needs to sit down when he feels them coming on. (R. at 42-43). He testified that they do not occur on a daily basis but do happen multiple times a week and last two to ten minutes when they occur. (R. at 42). Plaintiff claimed he has fallen from the dizzy spells and uses a cane periodically, usually if he leaves his house. (R. at 44). Plaintiff testified that he could stand for forty minutes before having to sit down to avoid the onset of a dizzy spell. (R. at 48). Plaintiff further testified that he could do chores for one to two hours each day which included cleaning the kitchen, laundry, sweeping, mopping, and vacuuming around the house, but he will need to sit down if he feels an oncoming dizzy spell. (R. at 45-46). Plaintiff stated that he drives, but rarely does because he is not comfortable and does not do so unnecessarily. (R. at 39).
The ALJ considered the level of Plaintiff's medical issues and found that his “impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's 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...” (R. at 20). The ALJ then cited to specific examples in the record to support her findings. Plaintiff, however, argues the ALJ failed to provide a connection between the medical evidence with any specific part of the Plaintiff's testimony to show a lack of credibility that would support the ALJ's position. (Doc. 18 at 14). However, it is apparent from the record that the ALJ used a multitude of specific reasons that are supported by the evidence to discount the Plaintiff's symptom testimony. The ALJ acknowledged in her decision that Plaintiff was afflicted with multiple impairments, but found they were not as disabling as alleged. (R. at 20). The ALJ appropriately relied on medical evidence that did not corroborate the Plaintiff's allegations as only one reason to discount his testimony. Although this could not be the ALJ's sole consideration, it is a permissible one. Burch, 400 F.3d at 680.
Plaintiff's argument centers around his dizzy spell impairment and the Court will consider that medical evidence in its analysis of the ALJ's decision. The ALJ's numerous citations in his decision begin with a reference to Plaintiff's emergency room visit in December 2018 where he presented with dizziness and feeling “like he was going to pass out.” (R. at 20, 288). Upon intake, Plaintiff reported a history of diabetes and admitted he drank three to twelve beers a day. Id. Plaintiff underwent cardiovascular and neurological examinations at the hospital. (R. at 20). An MRI showed moderate ventriculomegaly attributed to central volume loss in the brain. (R. at 20, 289). A CT angiography of the head and neck showed no abnormalities, and an echocardiogram was normal. (R. at 20, 283). Plaintiff was administered intravenous fluids and his symptoms improved. (R. at 20, 290). It was recommended that Plaintiff follow-up with a neurologist. (R. at 21, 290, 292). The ALJ then noted that in February 2019, Plaintiff sought treatment with a neurologist and MRI evidence showed “slight small vessel ischemic disease vs. slight migrainous angiopathy.” (R. at 21, 322). Plaintiff's physical examination was normal with normal gait, full motor strength and intact sensation. (R. at 429). The neurologist prescribed Plaintiff meclizine to treat nausea and dizziness. (R. at 430). In April 2019, the neurologist also recommended vestibular therapy. (R. at 21, 376).
The ALJ cited that from February 2019 to May 2019 Plaintiff reported to his neurologist that the meclizine and vestibular therapy seemed to help, and his dizziness had improved with use of the medication. (R. at 403, 422, 424). The ALJ may consider “whether the claimant takes medication or undergoes other treatment for the symptoms.” Lingenfelter, 504 F.3d at 1040; see 20 C.F.R. § 404.1529(c)(3). “Impairments that can be controlled effectively with medication are not disabling.” Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). However, the ALJ documented that in June and July 2019, Plaintiff reported to his physician that dizziness continued, and he was afraid to drive, and experienced an episode of dizziness that resulted in a family member having to pick him up while he was walking his dog. (R. at 21, 336, 340). Yet, in July 2019, Plaintiff reported to his neurologist that the “vestibular therapy has helped him significantly.” (R. at 21, 420). Plaintiff also admitted that he continued to drink but not “much.” (R. at 21, 393). Conversely, Plaintiff admitted he could not get his lab work done because he was drinking alcohol. (R. at 21, 493). Plaintiff was prescribed naltrexone to assist with reducing his alcohol intake. (R. 21, 494). However, Plaintiff testified that he drank one beer the day before the hearing and that he drinks once or twice a month. (R. at 43-44).
The ALJ noted that Plaintiff was not seen again for treatment until February 2020. (R. at 21). During this visit, Plaintiff reported dizziness, the ability to only drive short distances, and that he had stopped drinking. (Id., 502). Plaintiff then experienced a gap of medical insurance for the remainder of 2020. (R. at 21). The ALJ noted the circumstances of this gap and that Plaintiff re-established care in January 2021, but he did not report any history of dizziness to his new physician, and there was no additional medical evidence that Plaintiff was seen again by his neurologist or any other provider for his dizziness after late 2019. (R. at 22).
Although Plaintiff experienced improvements, the ALJ identified and considered all remaining allegations of Plaintiff's pain. As Plaintiff argued, he did not need to provide evidence of the severity of those symptoms, but the ALJ is also not required to believe every allegation of disabling pain. The ALJ also considered State non-examining physicians recommendations that opined Plaintiff would be capable of light or medium work with loftier physical requirements than what the ALJ ultimately found in his RFC decision. (R. at 23, 62-63, 78-81). Given Plaintiffs allegations, the ALJ specified a series of physical restrictions applicable to Plaintiff within a job setting when the ALJ made his findings of Plaintiff's RFC. The ALJ ultimately found that while Plaintiff could not return to his past relevant work, there was another job available that could comply with Plaintiff's needed physical accommodations. The ALJ's conclusion that the objective medical evidence does not fully support Plaintiff's allegations is reasonable. See Valentine v. Astrue, 574 F.3d 685, 690 (9th Cir. 2009) (reiterating that the substantial evidence standard of review is highly deferential). Furthermore, the ALJ tied her discussion of the medical evidence regarding Plaintiff's physical issues to the limitations Plaintiff claimed from those impairments. The ALJ is not required to mechanically specify each allegation that every piece of medical evidence undermined. Grouping the medical evidence with the allegations they undermined was sufficient. See Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (restating that ALJs may explain their decisions with unideal clarity so long as their reasoning is reasonably discernible).
In consideration of Plaintiff's daily living activities, the ALJ noted that Plaintiff was taking care of his house. (R. at 20). Plaintiff testified that when he wakes up, he showers and dresses unassisted, feeds his dog, reads or watches television, makes breakfast and maybe takes a nap. (R. at 45). Plaintiff further testified that he could drive, but he is not comfortable and does not drive unnecessarily. (R. at 39). Plaintiff stated he would spend about an hour or two each day doing chores around the house like cleaning the kitchen, laundry, sweeping, mopping, vacuuming, and cleaning the bathroom. (R. at 45, 47). Plaintiff stated, “The house is pretty clean at this point.” (R. at 47). Plaintiff did testify that he broke up his chores during the day to avoid having a dizzy spell which resulted in him being on his feet for about forty minutes at a time before having to sit down. (R. at 48). “Even where those [daily] activities suggest some difficulty functioning, they may be grounds for discrediting the claimant's testimony to the extent that they contradict claims of a totally debilitating impairment,” Molina, 674 F.3d at 1113, or where they suggest that “later claims about the severity of [the] limitations were exaggerated,” Valentine, 574 F.3d at 694. Thus, the ALJ's finding that Plaintiff was not as limited as he alleged was reasonable.
Plaintiff's final argument alleged that his symptom testimony necessitated a finding of sedentary work instead of light work, and therefore, the ALJ should have found Plaintiff disabled. (Doc. 18 at 15). The ALJ determined that Plaintiff had an RFC to perform light work with some exceptions to include that he could only stand and/or walk for a total of two hours in an eight-hour workday and for no more than forty minutes at a time. (R. at 19). Plaintiff argues that the standing and/or walking exception reduced his RFC classification to the equivalency of sedentary work rather than that of a light level of work which would have deemed Plaintiff disabled. However, Plaintiff's limitations were both exertional and nonexertional in nature and his exertional limitations placed him between two exertional categories. “When a [Plaintiff] suffers from both exertional and nonexertional limitations, the grids are only a framework and a VE must be consulted.” Moore v. Apfel, 216 F.3d 864, 870 (9th Cir. 2000) (citations omitted). The ALJ did exactly what the process dictated in the present case and consulted a VE during the hearing. That VE determined that there was a job that existed in significant numbers in the national economy that Plaintiff could perform. (R. at 24). Although Plaintiff's RFC determined he could only stand and/or walk for two hours in an eight-hour workday, this Court has previously held that it is not error for an ALJ to rely on a VE's testimony regarding light work availability even though Plaintiff is limited to standing and/or walking for two hours in an eight-hour workday. See Smith v. Comm'r of Soc. Sec., No. CV-19-01586-PHX-DMF, 2020 WL 2768697, at *13-14 (D. Ariz. May 28, 2020). “[T]he court held that the ALJ did not err at Step 5 where the ALJ identified the claimant's limitations making them incapable of performing the full range of light work and the VE identified light work positions the claimant could still perform.” Id. at 13. (citations omitted). As previously discussed, the ALJ consulted the VE and the VE identified a position at the light level of work that would accommodate Plaintiff's RFC limitations that existed in significant numbers in the national economy and supported the ALJ's non-disability determination, to the detriment of Plaintiff's argument.
Given the scope of the record, the ALJ properly relied upon objective medical evidence to find the Plaintiff's allegations were inconsistent with the record, the effectiveness of Plaintiff's treatments for his impairments, and Plaintiff's daily activities to discount Plaintiff's symptom testimony. There is sufficient evidence present to enable the Court to reasonably discern the ALJ's path to conclude that her decision is supported by substantial evidence. As stated previously, “[w]here the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld.” Thomas, 278 F.3d at 954. The ALJ provided specific, clear and convincing reasons to dismiss Plaintiff's symptom testimony and those reasons were supported by substantial evidence.
IV. CONCLUSION
For the reasons stated above, the Court will recommend that the Commissioner's decision be affirmed. Plaintiff's symptom testimony was properly discounted by specific, clear, and convincing reasons supported by substantial evidence, and no legal errors were committed at Step five of the nondisability determination. Therefore, substantial evidence exists to support the Commissioner's nondisability determination. The Court need not reach the merits of Plaintiff's request to remand for an award of benefits since the Court recommends a remand is unwarranted.
IT IS THEREFORE RECOMMENDED that the final decision of the Commissioner of Social Security be AFFIRMED and that the Clerk of Court be directed to enter judgment accordingly.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rules of Appellate Procedure, Fed. R. App. P. 4(a)(1), should not be filed until entry of the District Court's judgment. 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. Pursuant to Rule 7.2(e)(3), Local Rules of Civil Procedure, objections to the Report and Recommendation may not exceed ten (10) pages. If objections are not timely filed, the party's right to de novo review by the District Judge is waived. See U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).