Opinion
CV-21-00143-TUC-RM (JR)
08-30-2022
Daniel Nivison, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
HONORABLE ROSEMARY MARQUEZ, UNITED STATES DISTRICT COURT
REPORT AND RECOMMENDATION
Honorable Jacqueline M. Rateau United States Magistrate Judge
Plaintiff challenges the denial of his application for disability insurance benefits under Title II of the Social Security Act (“the Act”) by Defendant, the Commissioner of the Social Security Administration (“Commissioner” or “Defendant”). Plaintiff filed a Complaint seeking judicial review of that denial (Doc. 1), and upon referral from the Honorable Rosemary Marquez, U.S. District Court, this Court now addresses Plaintiff's Opening Brief (Doc. 24, Pl. Br.), Defendant's Answering Brief (Doc. 30, Def. Br.), and Plaintiff's Reply (Doc. 32, Reply). The Court has reviewed the briefs and Administrative Record (Doc. 21, AR.) and issues the following Report and Recommendation in accordance with the May 19, 2021 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 affirmance of the Administrative Law Judge's (“ALJ”) unfavorable decision.
I. PROCEDURAL HISTORY
Plaintiff filed an application for disability insurance benefits in December 2018 alleging disability beginning August 29, 2017. (AR. at 169-70.) Plaintiff alleged disability resulting from rheumatoid arthritis (“RA”), “narrowing of [the] spine” resulting in pinched nerves, and high blood pressure. (AR. at 194.) He reported pain in his lower back, shoulders, wrists, and legs which prevented him from using the tools necessary to perform his work. (AR. at 203.) He reported being limited in his ability to walk and lift heavy objects. (AR. at 203-204.) He stated that he could “barely lift [a] glass for a drink of water” or his fork and knife during severe RA flares. (AR. at 204.)
Despite these complaints, the Commissioner denied Plaintiff's application at the initial and reconsideration levels of administrative review. (AR. at 99-102, 106-09.) The Commissioner based these determinations on the opinions of non-examining consultant physicians who reviewed Plaintiff's medical records and assigned physical limitations consistent with medium work. (AR. at 76-79, 93-97.) Plaintiff timely requested a hearing before an ALJ. (AR. at 90-91.)
“Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also do sedentary and light work.” 20 C.F.R. § 404.1567(c).
ALJ Robert F. Spaulding conducted a telephonic hearing on June 25, 2020, during which both the Plaintiff and vocational expert (“VE”) Jeff Cockrum testified. (AR. at 3070.) An attorney representative also appeared on Plaintiff's behalf. (AR. at 30.) Plaintiff testified during that hearing that the RA in his hands is the biggest impediment to his return to work, and that day-to-day chores-such as routine yardwork or helping his mother- would cause his wrists to flare for several days at a time. (AR. at 44-45.) Plaintiff testified that when this occurs, he is unable to lift a glass of water, feed himself, or dress himself. (AR. at 45.) He stated these flare-ups occur “[a]lmost weekly.” (AR. at 46-47.) He stated he could sit or stand for 30 to 45 minutes before changing positions and lift 20 to 30 pounds. (AR. at 49-50.) Day-to-day, Plaintiff testified he talks to friends; engages with hobbies, such as painting small items with an airbrush gun, “arts and crafts,” or “a little bit of woodshop stuff”; and helps his mother, who also has severe RA. (AR. at 50-51.) Plaintiff testified he prepares his mother's meals and washes her clothes. (AR. at 52.) He testified he could only airbrush for about a half an hour and do yardwork for an hour or two. (AR. at 62.)
During the hearing, Plaintiff's representative and the VE were inadvertently disconnected from the proceedings without the ALJ's knowledge. (AR. at 53.) Because the ALJ did not know Plaintiff's representative was not present, he continued to question the Plaintiff. (AR. at 53.) Once the other parties rejoined the hearing, the ALJ summarized his questioning of the Plaintiff to his representative's satisfaction. (AR. at 54-61.)
The ALJ asked the VE whether a hypothetical individual of Plaintiff's age, education, and work experience could perform Plaintiff's past relevant work or other work. (AR. at 65-66.) The ALJ included in this hypothetical limitations to light work; frequent climbing of ramps, stairs, ladders, ropes, or scaffolds; frequent balancing; occasional stooping, kneeling, crouching, or crawling; frequent handling and fingering; avoidance of concentrated exposure to extreme cold, heat, and vibration; and avoidance of more than occasional exposure to machinery and heights. (AR. at 65.) The VE testified Plaintiff's past work was disqualified, but he could perform other jobs including production assembler, assembler of electrical accessories, and routing clerk. (AR. at 66.) The ALJ asked a second hypothetical incorporating these limitations, but further limiting Plaintiff to only occasional handling and fingering. (AR. at 66.) The VE testified Plaintiff could not perform the jobs previously identified, but that he could perform the job of sandwich board carrier, usher, and burner. (AR. at 67.) In response to questioning from the ALJ, the VE confirmed his testimony was consistent with the Dictionary of Occupational Titles (“DOT”). (AR. at 67.)
The VE also answered a hypothetical question from the ALJ further limiting Plaintiff to sedentary work. (AR. at 68.) The VE testified no work would exist in significant numbers in the national economy for this hypothetical individual. (AR. at 68.)
II. THE UNFAVORABLE DECISION
On June 29, 2020, ALJ Spaulding issued an unfavorable decision. (AR. at 14-27.) He concluded Plaintiff had not engaged in disqualifying substantial, gainful work activity, and that he suffered from medically determinable, severe impairments including RA and degenerative disc disease. (AR. at 17.) Consistent with his second hypothetical at the hearing, the ALJ found Plaintiff could perform light work with the additional limitations outlined above, including the ability to handle or finger only occasionally, and including the restriction that Plaintiff must avoid concentrated exposure to temperature extremes. (AR. at 17.) The ALJ found Plaintiff could perform the sandwich board carrier, usher, and burner jobs the VE identified in response to this hypothetical at the hearing. (AR. at 2021.)
III. THE SEQUENTIAL EVALUATION PROCESS AND JUDICIAL REVIEW
To determine whether a claimant is disabled for purposes of the Act, the ALJ follows a five-step process. E.g., 20 C.F.R. § 404.1520(a)(4). The claimant bears the burden of proof at 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 engaging in substantial, gainful work activity. 20 C.F.R. § 404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe” medically determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). At step three, the ALJ considers whether the claimant's impairment or combination of impairments meets or is medically equivalent to an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is disabled. Id. If not, the analysis proceeds to step four, where the ALJ assesses the claimant's residual functional capacity (“RFC”) and determines whether the claimant is still capable of performing his past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant can perform his past relevant work, he is not disabled. Id. If he cannot, the analysis proceeds to the fifth and final step, where the ALJ determines if the claimant can perform any other work in the national economy based on his RFC, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If the claimant cannot, he is disabled. Id.
This 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 mere scintilla but less than a preponderance. It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (cleaned up). In determining whether substantial evidence supports a decision, the court “must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Id. (quotations and citations omitted). 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).
IV. DISCUSSION
Plaintiff briefed two issues for review: (1) whether the ALJ cited clear and convincing reasons supported by substantial evidence for discrediting Plaintiff's symptom testimony; and (2) whether the ALJ identified a significant number of jobs at step five of the sequential evaluation process. (Pl. Br. at 2.) The Court addresses each issue in turn.
A. Plaintiff's Symptom Testimony
If the claimant presents objective evidence of a medical impairment “which could reasonably be expected to produce the pain or other symptoms alleged[,]” and there is no evidence of malingering, the ALJ must provide “specific, clear and convincing reasons for rejecting the claimant's testimony regarding the severity of [his] symptoms.” Treichler v. Comm'r of Soc. Sec., 775 F.3d 1090, 1102 (9th Cir. 2014) (citations and quotations omitted). In discharging this duty, the ALJ may consider, for instance, “(1) ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant's daily activities.” Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) (citations omitted). “General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995), as amended (Apr. 9, 1996).
Plaintiff argues the ALJ did not cite legally sufficient reasons for discrediting his symptom testimony. (Pl. Br. at 7-11.) Citing longstanding Ninth Circuit precedent, Plaintiff argues an ALJ may not reject his symptom testimony solely due to a lack of supporting objective evidence. (Pl. Br. at 7.) Plaintiff further argues an ALJ may not cite reported daily activities unless the evidence shows the Plaintiff spent a substantial part of his day engaged in activities transferable to a work setting, or that those reported activities are inconsistent with his own reported limitations. (Pl. Br. at 9-11.) Plaintiff argues neither exception applies here. (Pl. Br. at 9-11.)
Defendant answers, in part, that the ALJ is required to look beyond Plaintiff's allegations-to all the evidence of the record-when determining Plaintiff's true limitations, and that it is the ALJ's province to evaluate symptom testimony. (Def. Br. at 11.) Defendant argues that the ALJ need only make sufficiently specific findings supported by substantial evidence to assure the reviewing court that the ALJ did not arbitrarily discredit that testimony, and that the ALJ met that burden here. (Def. Br. at 12.) Defendant notes the ALJ cited a lack of treatment records for over one year after Plaintiff's alleged onset date as a basis for discrediting him, and that Plaintiff's course of treatment and “generally normal or mildly abnormal” physical examinations are inconsistent with his reportedly disabling limitations. (Def. Br. at 13.)
1. Analysis and Recommendation
In the decision, after describing Plaintiff's allegations of pain and reported activities, the ALJ concluded,
After careful consideration of the evidence, . . . the claimant's medically determinable impairments could reasonably be expected to cause some of 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 for the reasons explained in this decision.(AR. at 18-19.) In the next paragraph, the ALJ observed, “There are no medical records contemporaneous to the alleged onset date.” (AR. at 19.) The ALJ explained that the earliest medical evidence in the record consisted of hospitalization records dated over a year after Plaintiff's onset date, which were related to an episode of alcohol withdrawal. (AR. at 19.) The ALJ concluded, “Such evidence is not indicative of a debilitating pain condition.” (AR. at 19.) In subsequent paragraphs, the ALJ cited later treatment records and diagnostic imaging in support of his conclusion that Plaintiff retained “significant physical functioning” or that his “clinical presentation remained fairly benign.” (AR. at 19.) This Court finds the ALJ cited sufficiently clear, convincing reasons supported by substantial evidence for rejecting Plaintiff's symptom testimony. This Court will address each of the ALJ's stated reasons in turn.
a. The gap in Plaintiff's treatment history
The ALJ noted Plaintiff's failure to seek treatment for over one year from his alleged onset date. (AR. at 19.) The “unexplained or inadequately explained failure to seek treatment” is an appropriate consideration when evaluating symptom testimony. Smolen, 80 F.3d at 1284. This rationale applies similarly to large gaps in a Plaintiff's treatment history. E.g., Mutter v. Kijakazi, No. 18-15877, 2021 WL 4776379, at *1 (9th Cir. Oct. 13, 2021). Plaintiff replies that the ALJ was obligated to inquire on the record about this lack of treatment, and that his failure to do so forecloses him from relying upon Plaintiff's lack of treatment to discredit him. See Soc. Sec. Ruling (“SSR”) 16-3p Titles II & XVI: Evaluation of Symptoms in Disability Claims, 2017 WL 5180304, at *9 (S.S.A. Oct. 25, 2017) (“We will not find an individual's symptoms inconsistent with the evidence in the record [on the basis that the extent of treatment, or the failure to follow it, does not match the severity of the subjective complaints] without considering possible reasons [the claimant] may not comply with treatment or seek treatment consistent with the degree of his or her complaints.”) But SSR 16-3p requires only that an ALJ consider potential reasons for a claimant's failure to seek treatment; it does not obligate him to make the inquiry in every case. E.g., Sperry v. Comm r of Soc. Sec. Admin., No. CV-18-01484-PHX-JAT, 2019 WL 1513203, at *7-8 (D. Ariz. Apr. 8, 2019). As the Court there noted, “an ALJ may permissibly discount a claimant's testimony if a review of the record suggests that ‘[a]n individual's symptoms [were] not [ ] severe enough to prompt him or her to seek treatment[.]'” Id. citing SSR 16-3p, at *10. Further, if a claimant has not sought treatment, or failed to comply with it, it is incumbent upon him to explain or offer evidence in support of a reason why. See, e.g., Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (“Another such form of evidence [upon which an ALJ can rely to discredit a pain allegation] is an unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment. While there are any number of good reasons for not doing so, . . . a claimant's failure to assert one, or a finding by the ALJ that the profferred reason is not believable, can cast doubt on the sincerity of the claimant's pain testimony.”) (emphasis added); Smolen, 80 F.3d at 1284 (“Where a claimant provides evidence of a good reason for not taking medication for her symptoms, her symptom testimony cannot be rejected for not doing so.”).
See also, Cory P. v. Kijakazi, No. 2:21-CV-00016-LRS, 2021 WL 5813820, at *6 (E.D. Wash. Dec. 7, 2021); Holly F. v. Berryhill, No. C18-5036-MAT, 2018 WL 6413205, at *6 (W.D. Wash. Dec. 6, 2018).
An ALJ's obligation to consider explanations for a failure to seek treatment does not absolve Plaintiff of his burden to provide some evidence in support of an acceptable explanation. See 20 C.F.R. § 404.1512(a)(1) (“In general, you have to prove to us that you are blind or disabled.”) Here, Plaintiff did not testify he lacked the means to pursue treatment for the first 13 months of the relevant period. In fact, he testified that while he learned of his RA diagnosis only a year prior to his hearing, he “always was hurting.” (AR. at 47.) Plaintiff stated that when he “finally [ ] saw a doctor [ ] that[ is] when [he was] diagnosed with the rheumatoid arthritis.” (AR. at 47.) In a questionnaire he completed for his first orthopedic visit, he appeared to indicate his pain began as early as 2012. (AR. at 381.) When the ALJ observed on the record that he “[did not] see that [Plaintiff] received much other treatment,” and asked if Plaintiff had received any other treatment for RA, Plaintiff responded he had not because he had only been diagnosed one year earlier. (AR. at 49.) In a disability report completed with his application for benefits, Plaintiff reported he stopped working in August 2017 “because of [his] condition(s).” (AR. at 194.) He did not offer an explanation to the Appeals Council (AR. at 164, 271), nor did he assert any reasons here. Plaintiff did not substantively address his lack of treatment in his Opening Brief and offered little explanation in his Reply. (Reply at 2.) (“The alleged onset date was chosen as the date that Mr. Nivison stopped working; the significance of the date beyond that is unclear.”) The Ninth Circuit has held an ALJ properly discredited a claimant for the unexplained failure to seek treatment, without explanation, for nine months after an allegedly debilitating work accident. Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001). Here, Plaintiff did not seek treatment for 13 months after his last day of work, and the Court cannot find evidence supporting an acceptable explanation to clarify this. Hence, while Plaintiff may have eventually sought treatment, the fact he did not for 13 months during the relevant period-a significant gap-is a permissible ground upon which to discredit his symptom testimony in this Court's view.
b. Plaintiff's testimony was inconsistent with the medical evidence
The ALJ also cited “fairly benign” examination results and evidence “suggesting] [Plaintiff] retains significant physical functioning” to discredit Plaintiff's statements. (AR. at 19.) The Court recognizes this reason is insufficient on its own, but coupled with Plaintiff's gap in treatment, it is a valid consideration. See 20 C.F.R. § 404.1529(c)(2) (explaining the Commissioner will consider objective medical evidence in reaching the conclusion a claimant is disabled, but that this cannot be the sole consideration); id. at § 404.1529(c)(4) (“Your symptoms, including pain, will be determined to diminish your capacity for basic work activities to the extent that your alleged functional limitations and restrictions due to symptoms, such as pain, can reasonably be accepted as consistent with the objective medical evidence and other evidence.”) “Although lack of medical evidence cannot form the sole basis for discounting pain 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).
Here, the ALJ briefly summarized treatment evidence supporting his conclusion Plaintiff “retain[ed] significant physical functioning.” (AR. at 19.) The ALJ cited Plaintiff's October 2018 new patient visit at the Tucson Orthopedic Institute, which reflected Plaintiff presented with “excellent” range of motion in the cervical spine, elbows, wrists, and hands, no neuromotor deficits, and “excellent strength and sensation pulses throughout.” (AR. at 378.) The ALJ also cited Plaintiff's follow-up visit from November where diagnostic imaging of the lumbar spine revealed only “mild spondylitic changes” including a loss of disc height at the L5-S1 level. (AR. at 376.) The ALJ cited Plaintiff's December 2018 follow-up as well, where Plaintiff exhibited full strength and range of motion in the upper extremities. (AR. at 373.) The ALJ also cited records from early 2019, asserting that Plaintiff's “clinical presentation remained fairly benign” despites complaints of worsening RA. (AR. at 19.) The ALJ documented Plaintiff's February 2019 treatment visit with rheumatologist Michael Aquino, M.D., when Plaintiff displayed adequate range of motion in the shoulders and wrists with no upper extremity swelling or tenderness, and normal range of motion in the lumbar spine upon flexion, extension, lateral bending, and rotation. (AR. at 573.) The ALJ also discussed Plaintiff's February and June 2020 treatment visits at Arizona Arthritis and Rheumatology. (AR. at 19.)
In his Opening Brief, Plaintiff notes the June 2020 rheumatology record reflects he exhibited tenderness in 21 joints with erythema over his right MCP joints and swelling of the right wrist. (AR. at 770.) Plaintiff also cited a July 2019 treatment record indicating “minimal” swelling and tenderness of the bilateral wrists. (AR. at 557.) Plaintiff argues the combination of normal and abnormal findings in his treatment records supports his testimony “regarding fluctuating debilitating symptoms of rheumatoid arthritis.” (Pl. Br. at 8.)
This Court recognizes that some symptoms wax and wane, and that an ALJ commits error by cherry-picking benign examination findings in those cases. See, e.g., Revels v. Berryhill, 874 F.3d 648, 656-57, 663 (9th Cir. 2017) (for fibromyalgia); Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014) (for mental health). Importantly, however, the ALJ must, to some extent, seek out objective evidence substantiating a claimant's disability and must not merely rely upon reported symptoms. Moreover, in similar contexts where symptoms can reasonably be expected to “wax and wane,” Social Security guidance directs “looking at longitudinal records[.]” Revels, 874 F.3d at 663; see also Garrison, 759 F.3d at 1018 (While ALJs obviously must rely on examples to show why they do not believe that a claimant is credible, the data points they choose must in fact constitute examples of a broader development to satisfy the applicable “clear and convincing” standard.”) Neither party can reasonably dispute that Plaintiff suffers from rheumatoid arthritis and other impairments, and that he experiences some degree of limitation as a result. Having reviewed the entire record and considered the evidence that both supports and detracts from the ALJ's conclusions, however, this Court would hold that substantial evidence supports the ALJ's determination that Plaintiff retained significant functionality despite his impairments. (AR. at 19.) The treatment records the ALJ cited that show “excellent” or “adequate” range of motion, normal gait, full upper extremity motor strength, no upper extremity swelling or tenderness, and normal lumbar motion despite tenderness to palpation (AR. at 19), are not isolated or cherry-picked instances of benign examinations, but are substantially consistent with and representative of the larger evidentiary record.
See 42 U.S.C. § 423(d)(5)(A) (“An individual's statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment . . . which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability.”)
At Plaintiff's first orthopedic examination in October 2018, he showed “excellent” range of motion in the cervical spine, bilateral shoulders, elbows, wrists, and hands with no tenderness, spasms, deficits and “strength and stability throughout.” (AR. at 378.) In his November follow-up, Plaintiff exhibited some positive signs, including pain with flexion, gluteal tenderness, and positive straight-leg raising. (AR. at 376.) In an examination with his treating internist that same month, Plaintiff showed lumbar tenderness and positive straight-leg raising, but full motion in all extremities, no hand deformities or synovitis, and intact strength and sensation. (AR. at 418.) Orthopedist Andrew Mahoney, M.D. noted full range of motion and strength in Plaintiff's upper extremities with no other positive diagnostic signs in December 2018. (AR. at 373.) In his first visit with rheumatologist, Dr. Edwin Aquino, Plaintiff exhibited “adequate” range of motion in the shoulders and wrists, with no swelling or tenderness. (AR. at 432.) Dr. Aquino also noted mild tenderness on the medial epicondyle of the left elbow, and mild synovitis and tenderness of the fourth PIP joint in Plaintiff's left hand. (AR. at 432.) Dr. Aquino documented Plaintiff's “progressively worsening polyarthralgia,” but only “[m]ild evidence of active disease” upon examination. (AR. at 433.) In a follow-up appointment with Dr. Aquino in February 2019, Plaintiff again exhibited “adequate” range of motion in the shoulders and wrists with no swelling or tenderness, but tenderness in the lumbar area. (AR. at 573.) Dr. Aquino characterized Plaintiff's chronic polyarthralgia as “progressively worsening,” but still noted “no active disease.” (AR. at 574.) Plaintiff exhibited the same examination findings in his April 2019 follow-up visit with Dr. Aquino, but with “[m]inimal swelling/tenderness” in his bilateral wrists. (AR. at 565.) Dr. Aquino again documented “[n]o significant evidence of active disease,” but did note Plaintiff's cellphone pictures indicated “possible swelling and erythema on [the] wrists, MCPs and left ankle.” (AR. at 566.) Plaintiff again exhibited adequate range of motion in his shoulders and wrists with only minimal swelling in July 2019. (AR. at 557.) When Plaintiff established with a new rheumatologist in February 2020, he exhibited no swelling, tenderness, or limitation in the wrists, elbows, shoulders, hips, knees, ankles or MTP joints. (AR. at 595.) On follow-up in June 2020, the day before his hearing, he exhibited tenderness to 21 different joints, swelling over one joint, and erythema over his right MCPs. (AR. at 770.) Throughout the relevant period, Plaintiff received chiropractic therapy where he exhibited moderate tenderness and decreased range of motion to the spine. (AR. at 517-23.)
Dr. Aquino further indicated “[Plaintiff's] [d]isease activity may also be masked due to recent use of Medrol dose pack.” (AR. at 433.)
Plaintiff further argues the ALJ disregarded photographs Plaintiff provided showing swelling in his hands (Pl. Br. at 8, Reply at 3-4), but Plaintiff himself was unable to date the photographs with a reasonable amount of certainty. (AR. at 46.) Plaintiff argues “the photos presented to the ALJ are likely the same photos that were presented to Mr. Nivison's rheumatologist in February 2020, and according to that doctor, are consistent with active rheumatoid arthritis.” (Pl. Br. at 8.) But the fact that Plaintiff is suffering from active RA is not reasonably in dispute. Moreover, the ALJ, despite being unable to date the photographs, nevertheless considered them in the context of Plaintiff's February and June 2020 treatment notes from Arizona Arthritis and Rheumatology. (AR. at 19.)
Having reviewed the record as a whole and “weigh[ed] both evidence that supports and evidence that detracts from the [ALJ's] conclusion,” Tackett, 180 F.3d at 1098 (quotations and citations omitted), this Court finds there is substantial evidence to support the ALJ's determination regarding Plaintiff's symptom testimony. “Throughout the five-step evaluation, the ALJ ‘is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.'” Fordv. Saul, 950 F.3d 1141, 1149 (9th Cir. 2020) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). Ultimately, however, while there is clinical evidence belying the ALJ's conclusions, this Court “may not reweigh the evidence or substitute [its] judgment for that of the ALJ.” Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021). The ALJ's conclusions must be upheld “where the evidence is susceptible to more than one rational interpretation.” Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (citations omitted). There are instances in the record where Plaintiff exhibited clinically significant findings, but this Court concludes substantial evidence-more than a scintilla, but less than a preponderance-ultimately supports the ALJ's conclusion that Plaintiff's treatment notes illustrate he retained “significant physical functioning.” (AR. at 19.)
c. Plaintiff's daily activities
Finally, both parties addressed Plaintiff's reported daily activities as a reason the ALJ discredited Plaintiff's symptom testimony, but it is unclear to this Court the ALJ was discounting Plaintiff's testimony on that basis. In the decision, the ALJ briefly noted Plaintiff's ability to “manage his own personal care without special reminders or help,” “prepare simple meals,” “perform light household chores,” “ride a bicycle,” and “go shopping in stores when necessary” despite his pain, but the ALJ did not expressly state, nor imply, that these activities were inconsistent with Plaintiff's testimony, or that he was discounting Plaintiff's testimony on that basis. (AR. at 18-19.) It seems equally plausible the ALJ was merely noting Plaintiff's activities for the record, rather than citing them as a basis for discrediting his testimony. “As we have previously recognized, a reviewing court should not be forced to speculate as to the grounds for an adjudicator's rejection of a claimant's allegations of disabling pain.” Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir.1991) (citing Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983)). Consequently, the Court finds this reason for discrediting Plaintiff is insufficient here.
For the foregoing reasons, however, this Court recommends the District Court affirm the ALJ decision on the basis of the credibility determination.
B. The ALJ's Step Five Findings.
At step five of the sequential evaluation process, it is the Commissioner's burden to identify jobs which exist in significant numbers in the national economy that the Plaintiff can perform. E.g., Ford, 950 F.3d at 1149 (citations omitted). An ALJ can satisfy this burden by relying on the Medical-Vocational guidelines or on the testimony of a vocational expert. Id. (citations omitted). Before the ALJ can rely upon VE testimony, however, he must first inquire of the VE whether his testimony conflicts with the Dictionary of Occupational Titles (“DOT”). See Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007); see Terry v. Sullivan, 903 F.2d 1273 (9th Cir. 1990) (noting the DOT is the Commissioner's “primary source of reliable job information”) (citations omitted). If there is a conflict, the ALJ must “obtain a reasonable explanation” for it. Massachi, 486 F.3d at 1153. “For a difference between an expert's testimony and the Dictionary's listings to be fairly characterized as a conflict, it must be obvious or apparent.” Gutierrez v. Colvin, 844 F.3d 804, 808 (9th Cir. 2016). Regarding the adequate number of jobs the Commissioner must identify, there is no “bright-line rule,” but “comparison to other cases is instructive.” Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). The Ninth Circuit has held 25,000 nationally available jobs constitutes a “close call,” but is ultimately sufficient. Gutierrez v. Comm'r of Soc. Sec., 740 F.3d 519, 529 (9th Cir. 2014).
Plaintiff argues the limitations the ALJ incorporated into the RFC, including that Plaintiff must avoid temperature extremes, conflicts with the requirements of the “burner (brick and tile)” job the ALJ identified at step five because that job involves working near extreme heat. (Pl. Br. at 12.) The Plaintiff argues the job of “sandwich board carrier” is similarly disqualified because it necessitates exposure to high summer temperatures in Arizona or low winter temperatures in other parts of the country. (Pl. Br. at 12.) Plaintiff argues the sole remaining job of usher, with 22,800 available positions, does not exist in significant numbers. (Pl. Br. at 13.)
Defendant argues, in part, that even if Plaintiff was correct regarding the burner job, Plaintiff is not correct regarding the sandwich board carrier job because the DOT requirements for this position do not include exposure to temperature extremes. (Def. Br. at 16.) Defendant notes that between the sandwich board carrier job and usher, the ALJ identified a significant number of jobs at step five. (Def. Br. at 15-17.)
1. Analysis and Recommendation
The Court finds there is an obvious and apparent conflict between the job of burner and Plaintiff's RFC, specifically the requirement that he “avoid concentrated exposure to temperature extremes.” (AR. at 17.) Under the DOT's description of the job, a burner's primary responsibility is to “[t]end[] kilns that fire magnesium materials . . . .” 573.685038 Burner, DICOT, 1991 WL 683980. The job requires exposure to “extreme heat” frequently, or at a level of one-third to two-thirds of a workday. Id. Hence, the requirements of the work are in “obvious or apparent” conflict with Plaintiff's inability to tolerate concentrated exposure to extreme heat. Gutierrez, 844 F.3d at 808. The ALJ did not resolve this conflict by eliciting a reasonable explanation from the VE. Massachi, 486 F.3d at 1153. When asked by the ALJ whether his testimony was consistent with the DOT, the VE affirmed that it was. (AR. at 67.) The ALJ and VE missed the apparent conflict here.
Importantly, however, this error is harmless because the VE identified the jobs of sandwich board carrier and usher, neither of which requires exposure to temperature extremes under the DOT. E.g., Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (harmless error is ““inconsequential to the ultimate nondisability determination”); Phillips v. Kijakazi, No. 20-17178, 2021 WL 5506341, at *2 (9th Cir. Nov. 24, 2021) (“Because the ALJ determined that Phillips's RFC permits her to perform at least one job that exists in significant numbers in the national economy, the ALJ did not err at step five.”) While the sandwich board carrier position involves constant exposure to “weather,” it does not involve any exposure to extreme heat or cold. 299.687-014 Sandwich-board Carrier, DICOT 299.687-014, 1991 WL 672646. Under the Selected Characteristics of Occupations (“SCO”), the companion publication to the DOT, “exposure to weather” means exposure to “outside atmospheric conditions.” Selected Characteristics of Occupations in the Revised Dictionary of Occupational Requirements App. D., at D-1 (rev. ed. 1993). Exposure to extreme heat or cold, on the other hand, means exposure to “nonweather-related [hot or cold] temperatures.” Id. Consequently, by limiting the Plaintiff to jobs without “concentrated exposure to temperature extremes,” the ALJ did not impose weather-related temperature restrictions, but only those non-weather-related temperatures that are incident to the work. See id. This Court interprets weather-related temperatures as encompassed in a limitation to exposure to weather, i.e., “atmospheric conditions.” See id. Plaintiff could argue the ALJ erred by failing to include a limitation to restrict his exposure to weather but does not here.
Plaintiff cites no authority to the contrary. Although it appears not many courts have addressed this particular issue, the Court was able to find some persuasive authority. E.g., Evans v. Saul, No. 2:18-CV-01539, 2019 WL 4145694, at *11 (S.D. W.Va. Aug. 7, 2019), report and recommendation adopted, No. CV 2:18-1539, 2019 WL 4145603 (S.D. W.Va. Aug. 30, 2019).
Even if “concentrated exposure to temperature extremes” could encompass weather-related temperatures under the DOT, the Court notes the VE identified numbers of nationally available jobs, not locally available jobs where Plaintiff would be subject to very high atmospheric temperatures. See 20 C.F.R. § 404.1566(a) (“We consider that work exists in the national economy when it exists in significant numbers either in the region where you live or in several other regions of the country.”) Therefore, combining the numbers of sandwich board carrier jobs and usher jobs, the ALJ identified 41,300 nationally available jobs, which clears the threshold of “significant numbers” approximated in Gutierrez. 740 F.3d at 529.
For the reasons stated above, the Court RECOMMENDEDS that the District Court AFFIRM the July 29, 2020 decision of the Administrative Law Judge (AR. at 14-22).
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 10 days after being served with a copy of this Report and Recommendation. Objections 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).